He chose … poorly.

Some days you just can’t get anything right.  For one soldier, that included deciding where to be tried and what to plead.


On 1 February 2010 a private in the Trinidad and Tobago Regiment absconded from his base without a pass.  This and associated matters resulted in thirteen charges of “acting in a manner unbecoming of an officer”.

The soldier could elect to be tried summarily by his commanding officer, where he would have faced a maximum penalty of 42 days imprisonment.  On his first appearance before Judge Advocate Roach he pleaded not guilty and elected to face a Court Martial.  Before the Court Martial he changed his plea to guilty.  He was sentenced to 120 days imprisonment.

Ramanan v Ali (2010), Trinidad Express, 23 August 2010.

A castle is a castle

A man’s (mobile) home is his castle.

Image from here

On 5 June 2016 Martin Keenan, a 20 year old resident of a caravan park in Dublin, came home to find two strangers in the bedroom of his mobile home.  One of the intruders was an unarmed 33 year old, Wesley Mooney.  There was a confrontation between the two men in which Mooney was stabbed with half of a pair of garden shears, sustaining fatal injuries.  Keenan was charged with murder.

Keenan was tried in Ireland’s Central Criminal Court before Butler J and a jury.  He relied on the Criminal Law (Defence and the Dwelling) Act 2011 (Ire.) §2(1) which states that –

it shall not be an offence for … a person who is a lawful occupant in a dwelling, to use force against another person … where … he or she believes the other person has entered …  the dwelling as a trespasser for the purpose of committing a criminal act, and … the force used is only such as is reasonable in the circumstances as he … believes them to be … to protect himself … or another person present in the dwelling from injury, assault, detention or death caused by a criminal act

Butler J advised the jury that the 2011 Act had clarified that the homeowner was no longer obliged to retreat from confrontation.

The accused was acquitted by majority verdict.

DPP v Keenan (2018) Irish Times, 14 March 2018

Too soon?

An interesting case recently came out of California relating to prematurely commencing litigation.

Sherri Rasmussen (Image credit)

On 24 February 1986 Sherri Rasmussen was murdered.  The offender (Stephanie Lazarus) was not identified until 2009. Astonishingly, she was by then a detective with the Los Angeles Police Department. Lazarus was convicted of murder on 8 March 2012.

On 26 July 2010 Mrs Rasmussen’s parents issued proceedings against Lazarus in the Superior Court of Los Angeles County.  Lazarus raised a defence that their claim had been commenced too early (that is, before her conviction) (a “plea in abatement”).  California’s Code of Civil Procedure §340.3 states that

in any action for damages against a defendant based upon the defendant’s commission of a felony offense for which the defendant has been convicted, the time for commencement of the action shall be within one year after judgment is pronounced.

Judge White rejected Lazarus’ argument and ordered her to pay $10,000,000.00 compensation.  Lazarus appealed.

The California Court of Appeal agreed with the trial judge.  The Court found (first) that a plea in abatement must be pleaded promptly by the defendant or it is taken to be waived.  Here Lazarus could have raised the argument when she was served with proceedings in 2011.  She did not do so until 2016.

The Court also found that by the time Lazarus raised the point, the defect identified (lack of a criminal conviction) no longer existed.  The trial court was correct to ignore the issue.

Finally, as a matter of equity the trial court was right to disregard the defence.  If the judgement in favour of the Rasmussens were overturned, they would be time-barred from beginning the proceedings again.  This was not acceptable:

A defendant cannot untimely raise prematurity and then hide behind a statute of limitations which ran while the defendant did nothing to assert the plea.

The decision of the trial court was affirmed.  On 11 April 2018 the Supreme Court of California declined to hear a further appeal.

Rasmussen v Lazarus (2018) California Court of Appeal, 8 January 2018.

Crimes on the Rails (part 2)

A case out of Pennsylvania bookends with the case of R v Harding (2018) about which I wrote the other day.

Image from here

On 12 May 2015 Brandon Bostian was the engineer on a train from Washington to New York.  The train entered a bend in the line at 106 mph (170 kph).  This was more than double the speed limit.  The train derailed, injuring 150 passengers and killing eight.  A government investigation found that Bostian was not affected by alcohol or drugs and was not using a cellphone.  It concluded that he had lost his bearings while distracted by operational radio communications.

The family of one of the deceased brought a private prosecution against Bostian for (inter alia) involuntary manslaughter.  Pennsylvania law states that

A person is guilty of involuntary manslaughter when as a direct result of … the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

The charges were dismissed by the Philadelphia Municipal Court.  The Attorney-General appealed to the Court of Common Pleas.  On 6 February 2018 Lewis J reversed the Municipal Court’s decision, finding that there was sufficient evidence for Bostian to be presented for trial.  It appears a trial date has not yet been set.

Commonwealth v Bostian (2018), Philadelphia Inquirer, 6 February 2018 and Register Citizen (Torrington, CT), 6  February 2018.

Courtside Coffee

Because it’s Friday, it’s a good time for a lighter post.

I was in the County Court a couple of days this week in a workers compensation matter. The morning of the first day was rather busy. How busy? It was 1pm when I finally had my first cup of coffee of the day (headaches were starting).

County Court, Melbourne
County Court, Melbourne

There was, however, a consolation. The forecourt of the County Court contains the Octane Coffee stand. It doesn’t look like much, but the coffee is always first class and served quickly. The hot chocolate is a particular highlight: some of the best I’ve ever had in Melbourne.

Octane Coffee, Melbourne
Octane Espresso, Melbourne

My dog-walking, real-estating friend Allie recently blogged about her delight at being able to drink Dunkin’ Donuts coffee again.  Anyway, it crossed my mind that most lawyers probably have a preferred courtside pit stop, where they can get a strong coffee or a soothing cup of tea for a stressed client. So lawyers, tell us what your court area haven is?

Gatecrasher gets crashed!

In case you’re wondering, simply being in uniform won’t get you immunity.


On 31 December 2009 Dillon Bracken gatecrashed a party at a hotel in Honolulu.  Kinchung Chung, a police officer, had been hired by the venue as a “special duty officer”.  While he wore his uniform and this work was approved by the police department, he was paid by the hotel directly and was considered to be off-duty from the police force.  Chung and a number of bouncers confronted Bracken.  A scuffle broke out between Bracken and the bouncers (not including Chung) in which Bracken was injured.

Bracken sued Chung for violating his rights to due process by failing to intervene and stop the alleged assault by the bouncers.

Every person who, under color of any [law] … of any State … subjects, or causes to be subjected, any … person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured … for redress: 42 USC §1983.

The US District Court dismissed the claim, finding that Chung was immune from suit and the claim in any event lacked merit.  Bracken appealed.

The appeal was upheld by the Ninth Circuit Court of Appeals.  It was accepted that Chung acted under colour of State law by invoking the authority of his uniform and badge.  However, he was not entitled to immunity from suit: There was no tradition of immunity for off-duty police acting as private security guards.  He was not carrying out public duties or doing the work of government [although one may wonder, then, why the Honolulu Police Department allowed “special duty” policing in the first place].

The Court of Appeal also considered that Bracken’s claim had merit.  While in general the State was not liable for failing to prevent a person coming to harm, a police officer was obliged to intervene where he had placed a person in danger.  Here, although it was foreseeable that Bracken would be injured by the bouncers, Chung had prevented him leaving.

The case was returned to the District Court for further proceedings.

Bracken v Chung (2018), Ninth Circuit Court of Appeals, 23 August 2017

Crimes on the Rails (part 1)

An interesting case came out of Quebec earlier this year regarding a railway disaster.

Image from here

On 6 July 2013 a train loaded with crude oil rolled out of control into the Quebec town of Lac-Megantic.  It derailed in the town. Its load of oil exploded.  Part of the town was destroyed and 47 people were killed.  The train’s engineer admitted that when he left the train that night he did not apply enough brakes to fix it in place on a sloping section of railway line.  He also admitted not having conducted a proper brake test.

The engineer was charged with criminal negligence causing death, as were the railway company’s traffic controller and manager of train operations.  Quebec Criminal Code §220 provides that –

Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable … to imprisonment for life.

The charges were heard in the Quebec Superior Court before Dumas J and a jury of twelve.  In January 2018 each of the defendants was acquitted.  One can infer that the defendants’ admitted carelessness was not considered to be the gross carelessness required by the criminal law.

The Queen v Harding, Labrie and Demaitre (2018), The Globe and Mail, 20 January 2018 and Kingston Whig-Standard, 19 January 2018.

Who are you working for?

Frank Benedetti was employed by Schlumberger Technology Corporation. Pursuant to that employment he worked on an oil well owned and operated by Cimarex Energy Company. On 9 December 2013 he was injured in a work accident. He sued Cimarex in the Canadian County District Court.

Image from here

Cimarex as well operator was considered to be immune from suit. The Oklahoma Workers Compensation Code [85 OS 2011 §302(A) and (H)] relevantly provided that –

The liability prescribed in this act shall be exclusive and in place of all other liability of the employer … at common law … for such injury … to the employee … except … where the employer has failed to secure the payment of compensation for the injured employee.

For the purpose of extending the immunity of this section, any operator or owner of an oil or gas well … shall be deemed to be an … employer for services performed at a drill site or location with respect to injured … workers whose immediate employer was hired by such operator or owner at the time of such injury.

The District Court summarily dismissed Benedetti’s claim. His appeal to the Court of Civil Appeals was dismissed. He appealed to the Supreme Court of Oklahoma.

The Supreme Court upheld his appeal. Following Strickland v Stephens Production Co., 2018 OK 6 it found that paragraph (H) was an unconstitutional “special law” breaching Art. 5 §59 of the Oklahoma Constitution

Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.

The case was remanded for further proceedings in the District Court.

Benedetti v Cimarex Energy Co, 2001 OK 21

Fractured and captured

In the leading English case of Bernstein v Skyviews & General Ltd, Griffiths J said “I can find no support in authority for the view that a landowner’s rights in the air space above his property extend to an unlimited height”*. The Superior Court of Pennsylvania seems to have gone in the opposite direction both spatially and jurisprudentially.

Rock Oil
Image from here

Briggs owned land in Susquehanna County, Pennsylvania. Southwestern Energy Production Co leased oil and gas rights on an adjoining parcel of land. The company extracted natural gas from below both properties using hydraulic fracturing (“fracking”). Briggs sued the company in the Court of Common Pleas for conversion of natural gas and trespass to land. The Company sought and was granted summary dismissal of the plaintiff’s claim based on the “rule of capture”. The rule of capture says that an owner (or lessee) may extract oil and gas from below ground even when doing so depletes a single reservoir of oil or gas beneath both their own and adjoining land**. The plaintiff appealed.

The Superior Court upheld the appeal and set aside summary judgment. It found that fracking was so different from conventional gas extraction that the rule of capture did not apply –

Traditionally, the rule of capture assumes that oil and gas originate in subsurface reservoirs or pools, and can migrate freely within the reservoir and across property lines, according to changes in pressure. … Unlike oil and gas originating in a common reservoir, natural gas, when trapped in a shale formation, is non-migratory in nature. … Shale gas does not merely “escape” to adjoining land absent the application of an external force. … Instead, the shale must be fractured through the process of hydraulic fracturing; only then may the natural gas contained in the shale move freely

It followed that fracking may be an actionable trespass where subsurface fractures and fracking substances entered the “subsurface estate” of a property and resulted in the extraction of natural gas.  Conceivably this trespass may extend to damage caused by earth tremors if they can be credibly linked to fracking.

Briggs v Southwestern Energy Production Co, 2018 PA Super 79

* [1978] Q.B. 479 at 487.
** Minard Run Oil Co v US Forest Service, 670 F. 3d 236 at 256 (3d Cir. 2011)

You can run, but you can’t always hide

Lawyers are practical people. Most would consider the laws of war an obscure field far removed from daily practice. A recent Swedish case suggests familiarity with that area could be useful in countries with high refugee intakes from recent conflicts.

Aleppo, Syria, 2012 (Image from Voice of America)

Mohammad Abdullah entered Sweden as a refugee from Syria in 2014. Other Syrians in Sweden noticed a photograph on his Facebook page showing him posing in army fatigues with his boot on the body of a dead man.


Sweden invoked “universal jurisdiction” over the matter.  Proceedings were commenced in Stockholm District Court. Abdullah was charged with breaching Art. 3(1)(c) of the Third Geneva Convention

In … armed conflict not of an international character … members of armed forces … placed hors de combat by … any … cause, shall … be treated humanely …. [T]he following acts are … prohibited: … outrages upon personal dignity, in particular, humiliating and degrading treatment.

Abdullah was convicted. Larsson J sentenced him to eight months imprisonment.

Attorps v Abdullah (2017), New York Times, 5 October 2017, p.A10