United States v Peter Ghavami & others, The Australian, 26 July 2013, p. 24

The outcome of a prosecution for bond-bid rigging before Judge Wood in the US District Court for the Southern District of New York was reported in the Australian newspaper of 26 July 2013 at p. 24.

Facts

A component of the process of bond trading allows local governments to raise money from investors using bond deals, then investing the proceeds in investment products which banks and others sell off in a competitive process.

Between 2001 and 2006 three employees of UBS – Peter Ghavami, Gary Heinz and Michael Welty – concocted a scheme which resulted in municipalities being substantially overcharged in connection with these deals (according to the government, US$25,000,000.00).

Trial

The accused were convicted by a jury of the charges brought against them. The government had sought particularly severe penalties, including over a decade of imprisonment, perhaps as a reflection of the severe financial hardship being caused by municipal financial woes (1).

Determination

In sentencing, Judge Wood sentenced the accused as follows –
* Ghavami: 18 months imprisonment and a $1,000,000.00 fine. Her Honour noted that Ghavami faces deportation to Belgium.
* Heinz: 27 months imprisonment and a $400,000.00 fine
* Welty: 16 months imprisonment and a $300,000.00 fine

Note

(1) See Mark Curriden, ‘The Next Chapter’, 97(11) A.B.A. Journal 51 (2011).

Gary Schwirse v Marine Terminals Corp., Lexington Herald-Leader, 2 August 2013.

The outcome of an appeal against the rejection of an application for workers’ compensation by the 9th Circuit Court of Appeals was reported on the website of the Lexington (Kentucky) Herald-Leader of 2 August 2013.

Facts
The plaintiff was employed as a longshoreman (stevedore) by the defendant. On 8 January 2006, while intoxicated at work, he fell over a railing while attempting to urinate and dropped six-feet onto a concrete surface, suffering injury.
A workers compensation claim was lodged and rejected by his employer, which took the position that intoxication had caused his injury.

Procedural History
The rejection was the subject of proceedings in Oregon’s Benefits Review Board and a court of administrative law.
The plaintiff’s provided inconsistent histories of the incident, in which the origin of a claim that he had tripped over part of his employer’s equipment, was initially given as his own memory and then as information from other workers.
The rejection of his claim was confirmed. An initial appeal to the US District Court was rejected.

Appeal
The plaintiff appealed to the Circuit Court of Appeals for the 9th Circuit. On appeal the worker raised the additional argument that his injuries were caused by the concrete onto which he fell and not by drunkenness. This argument did not impress the Court, which took the view that if intoxication caused the fall, it also caused the injuries.

Determination
The plaintiff’s appeal was rejected.

Note
Hat-tip to journalist Nigel Duara (Twitter @nigelduara) whose report provided the material for this casenote.

R v Leonard Borg, Herald Sun, 24 July 2013, p. 17

The outcome of an appeal against the sentence for murder before the Victorian Court of Appeal was reported in the Herald Sun newspaper of 24 July 2013 at p. 17.

Facts

The defendant believed that one Peter Rule had told police of his (Borg’s) marijuana-growing business. Borg Lured Rule to a factory, shot him and then burned his body in a drum. What remained was then cut up with a chainsaw, crushed, and placed in hydrochloric acid before being dumped in the sea.

Trial

Borg was convicted in the Supreme Court before Lasry J and sentenced to 23 years imprisonment with a minimum of 19 years.

Appeal

The Director of Public Prosecutions appealed the leniency of the sentence.

Determination

The Court of Appeal upheld the DPP’s appeal. It took the view that a “planned execution carried out for the sole purpose of protecting a criminal enterprise at least approached the worst case of an offence for which the maximum penalty is life imprisonment”. It also considered that Borg’s denials of responsibility precluded a finding of remorse.

Borg was re-sentenced to imprisonment for 28 years and 9 months, to serve a minimum of 24 years and nine months.

R v Periclis Telios, Herald Sun, 24 July 2013, p. 9

The outcome of a prosecution for theft in the County Court before Judge Douglas was reported in the Herald Sun newspaper of 24 July 2013 at p. 9.

Facts

The defendant was the president of the association managing a kindergarten. Between February and October 2012 he stole $224,008.48 in a series of transactions (essentially all of the kindergarten’s funds).

Trial

Mr Telios pleaded guilty to theft.

Determination

The Court noted that gambling provided the defendant with an escape from negative emotions and took into account his guilty plea and remorse. He retained the support of family and friends and had prospects of rehabilitation. The Court also noted that his family had suffered as a result of the situation.

Aggravating factors were the large amount of money stolen and the time and effort expended in stealing it, as well as the breach of trust involved.

He was sentenced to 4 years imprisonment with a minimum of two.

Family of Robert Thomas Jr v Los Angeles County Sheriff’s Department, L.A. Times, 15 June 2013, p. AA3

The outcome of a compensation claim arising out of a shooting by law enforcement in a Californian court was reported in the Los Angeles Times of 15 June 2013 at p. AA3.

Facts

The deceased, Robert Thomas Jr, was standing outside a party in 2010. Two sheriff’s deputies attended. Mr Thomas was frisked by one deputy and then ran. The deputies pursued him. It has been asserted that they saw him reach for a gun which was sticking out of his pocket. At this point one of the deputies shot Mr Thomas 9 times, causing death.

A gun was found at the scene of the shooting but its provenance is disputed.

Trial

Mr Thomas’ family brought proceedings against the LA County Sheriff’s Department. The matter was heard by a jury.

Determination

On 14 June 2013 the jury awarded the deceased’s family $7,500,000.00.

Note

The Department has announced its intention to appeal.

R v Roger Dean, The Australian, 2 August 2013, p. 8

The outcome of a prosecution for 11 counts of murder before Latham J in the New South Wales Supreme Court was reported in the Australian newspaper of 2 August 2013 at p. 8.

Facts

Roger Dean was a male nurse in a nursing home. One night he lit two fires in the nursing home in an attempt to conceal his theft of a large quantity of prescription drugs. He assisted one resident away from the fire but abandoned the others.

Trial

Mr Dean pleaded guilty to all charges.

Determination

The Court described the offender’s crimes as “heinous, atrocious and greatly reprehensible”. In Latham J’s assessment, neither his plea of guilty nor his ingestion of a large quantity of drugs prior to his crimes, reduced his culpability.

Mr Dean was sentenced to imprisonment for life.

In re the death of Melissa Ryan (Coroners Court of Victoria, Coroner Spooner, The Age , 31 July 2013)

A decision has made by the Victorian coroner to delay making a finding in relation to an accident in which a woman died while driving a Volkswagen car.

Facts

On 31 January 2011 Melissa Ryan’s 2008 VW Golf was hit from behind by a truck after experiencing a loss of speed.  The driver’s evidence was that the car appeared to suddenly stop without showing brakelights.

Following the inquest, a number of drivers reported similar losses of power with VW Golfs, Passats, Jettas, Polos and Caddies.

Application

Ms Ryan’s family’s lawyer advised the court that a submission had been prepared and was being considered by her, outlining some 300 claims by other drivers of sudden losses of power in cars.

Outcome

The Coroner was reported to be considering whether she had the jurisdiction to accept the family’s submission.  The issue will be decided by whether the submission’s information is “causally connected” to the death.

Her findings have been delayed in the meantime.

Note

Following the accident Volkswagen recalled some 26,000 cars.

Boudreaux v Transocean Deepwater Inc __ F.3d __ (5th Cir. 2013)

The decision of the Fifth Circuit in Wallace Boudreaux v Transocean Deepwater Inc denying a right to restitution of payments of ‘maintenance and cure’ to seamen.

Facts

Wallace Boudreaux (plaintiff) commenced work with Transocean Deepwater Inc (defendant) in January 2005.  Despite being directly asked about prior back injuries, he failed to disclose pre-existing serious back problems.  In mid-2005 he claimed to have suffered a back injury in the course of employment and payment of weekly benefits and medical expenses commenced.

Action & Trial

Benefits were ceased and in April 2008 the plaintiff commenced proceedings seeking further benefits as well as damages based on alleged default by the defendant in paying past benefits.  Discovery occurred and the defendant became aware of the plaintiff’s pre-existing back complaints.  The defendant duly – and without opposition – sought and was granted summary judgment denying the claim for further benefits, based on the common law principle that in maritime law an employer is not liable to pay weekly benefits or medical expenses where a seaman has intentionally misrepresented or concealed a pre-existing condition which is material to employment and causally related to the injury claimed (McCorpen defence).

The defendant followed up with a novel application seeking repayment of benefits already paid, arguing that its successful McCorpen defence established a right to restitution, based on principles of fraud and unjust enrichment.  The United States District Court for the Eastern District of Louisiana agreed and gave summary judgment for the defendant.

Appeal

The plaintiff appealed.  The defendant asked the 5th Circuit Court of Appeals to recognize the proposed right to restitution following the making out of a McCorpen defence.

Determination

The Court of Appeals’ starting point was that the maritime employment relationship by definition included an obligation to pay an injured worker weekly payments and medical expenses.  Further, prior cases had held that a worker’s fraud in obtaining employment did not void the employment relationship.  The McCorpen defence was a somewhat incongruous qualification which allowed an employer to cease liability to pay benefits if a seaman had intentionally concealed a material medical condition in obtaining work.  While the plaintiff’s conduct was disgraceful, the proposed right to restitution would be “a significant retreat from our hoary charge to safeguard the well-being of seamen”.

The Court noted that the seaman would retain the right to seek damages, but as a damages claim might fail or result in an award less than the restitution ordered if the point were accepted, an employer would in effect gain a judgment debt against the seaman which would markedly impede their economic recovery and distort decision-making in settlement negotiations.

The Court’s concerns were heightened by the fact that a McCorpen defence did not require an intentional concealment of a past injury but only a failure to disclose medical information if such was actively sought.  The effect of this would be to “threaten injured seamen with the specter of crushing liability for misstatements found material”.

Outcome

The Court of Appeals reversed the District Court’s award of summary judgment and gave judgment for the plaintiff.

Dissent

A dissenting judgment was given by Clement J.