The prosecution of an individual for the shooting of a domestic dog at large was reported in the Shepparton News on 18 September 2013.

Facts

The farming property of a resident in the Goulburn Valley was repeatedly entered by a neighbour’s dog. While there it would eat scraps off his barbeque, destroy property, enter paddocks and worry livestock. In addition to the trespass that this involved (1), the resident had concerns for the welfare of his infant son. The individual eventually seized the dog while it was at large on his property, drove it some distance away and then shot it.

Charges & Prehearing

The accused was charged with theft, discharging a firearm in a dangerous manner and aggravated cruelty and retained Mr Simon Pogue of Riordan Legal to represent him.

Relevant law

The Domestic Animals Act entitles the owner of livestock to destroy a dog or cat found at large near livestock (2).

Court

Mr Pogue succeeded in having the charges of theft and discharge of a firearm withdrawn. On a plea of guilty to the charge of aggravated cruelty, he submitted that no conviction should be recorded, given the accused’s concerns for his family’s safety (3) and the stigma attached to a charge of aggravated cruelty. Considerations of general and specific deterrence were raised by the Court.

Sentence

With conviction a fine of $2,700.00 was imposed by the Court and an order made that $300.00 restitution be paid to the dog’s owner.

Contact Simon Pogue on 5823 7600 & seek legal advice before going to Court.

Notes
(1) League Against Cruel Sports v Scott [1985] 2 All E.R. 489
(2) Domestic Animals Act 1994 (Vic), s.30
(3) Cf Goss v Nicholas [1960] Tas. S.R. 133

The information in this casenote is of a general nature only. It should not be relied upon as a substitute for seeking legal advice from a qualified legal practitioner in your jurisdiction.

The prosecution of a number of sailors and fisherman for murder on the high seas was reported in U.S.A. Today on 4 September 2013.

Facts

On 27 December 2010 the Chinese fishing vessel Lurongyu set out from the port of Shidao on a two-year squid-fishing mission in the South Pacific on behalf of the Xinfa Aquatic Foodstuff Co. At departure she carried a crew of 33.

In or about March 2010 discontent developed among some of the crew who insisted with menaces that the ship return to China. The master agreed. Over the subsequent months a series of feuds and punishment killings by the mutineers resulted in 22 crewmembers being stabbed, drowned or (more or less involuntarily) drowning themselves. In the vicinity of Japan the ship had mechanical problems and encountered a Japanese patrol boat. It was eventually towed back to Shidao, arriving on 12 August 2011 (the report does not clarify why the return journey took something more than 12 months). The 11 survivors were arrested on arrival.

Trial

At trial an attempt was made by defence counsel to attach fault to Xinfa Aquatic Foodstuffs, on the basis that the company’s poor management had generated the crew’s discontent.

Determination

The mutineers were convicted of some 16 murders. Five were sentenced to death and the remaining six sentenced to imprisonment for terms ranging between four years and life.

Note

Xinfa has paid compensation to the families of a number of the victims.

Comment

It would be interesting to know whether China’s (presumably at least nominally communist) jurisprudence would recognize liability in an employer for creating a situation in which a mutiny was seen as warranted. This could create an interesting tension with the idea of a pirate – some of these acts amounting to piracy (1) – as the enemy of all nations and societies (2).

(1) See Crimes Act 1958 (Vic.), §70B.
(2) “[F]or centuries, pirates have been universally condemned as hostis humani generis — enemies of all mankind — because they attack vessels on the high seas, and thus outside of any nation’s territorial jurisdiction, . . . with devastating effect to global commerce and navigation”: United States v Hasan, 747 F. Supp. 2d 599 at 602 (E.D. Va. 2010).

The hills would not tell if King Aha had passed this way
Or Gilgamesh, or Agamemnon
Treading the gravel and sand and dust
Where the wind passed, sweeping
Obliterating marks
No bones to be seen

Nor the fertile swathes, clothed in wheat
Which earth had given, never the work of human hands
Could tell a tale of their sowing
Nor did they await
The caress
Of the reaperman.

Today is Tuesday, 3 September 2013, and so we’re 5 days from polling day.  Here I go with my present two-cents worth (and, literally, my opinion is worth about two cents – I have no illusions about my own (in)significance).

For me, the election is actually starting to take on a kind of tragic hue.  Yesterday’s Financial Review, for example, followed on from the official launch of the Labor campaign at the weekend.  Nearly all the pundits were administering the last rites to the government. Much the same thing was covered in today’s Australian. Notwithstanding the energy that the Fin. Rev. described of the Labor staffers travelling with the Prime Minister, it’s safe to say that the only operatives of that Party whose hearts are still in the fight are those too young to remember a defeat.  I have neither warmth nor enmity for the Labor Party, but the sense of doom gives the efforts of both individual Labor candidates as well as Kevin Rudd himself an air of tragic energy that might have appealed to Euripides or Sophocles.

The other – perhaps tragic – sensation for me is that I can’t sense any enthusiasm in the electorate for the world beyond Saturday. I remember the energy in the electorate (on differing sides) after the elections of John Howard in 1996 and Kevin Rudd in 2007. I can’t feel anything like that in the public debate at present. Partly this is the fault of the Opposition itself: The Liberal and National Parties’ campaigns in general, and that of Tony Abbott in particular, have been rigorously disciplined and controlled and determined not to frighten the voters. Any sense of destiny has been replaced with a sense of mind-numbing blandness.

The minor parties have more signs of life: Although the Greens have outlined their usual positions, the Wikileaks Party flamed out in spectacular fashion, the Palmer United Party has pressed on with a moderately successful if (in my opinion) somewhat mystifying campaign, and the Katter Party has shown plenty of passion even if its own leader seems to be facing electoral problems of his own.

None of which alters the fundamental reality that minor parties are notoriously fractious and shortlived. If (as I suspect) Wikileaks is down for the count, and the Palmer and Katter groups fragment and drift into obscurity post-election, it leaves Australian politics dominated by two fairly passionless, managerial parties, with the Greens in their accustomed role as dealmakers.

In the result, then, we may be looking at a largely ideology-free, Fukuyama-esque, post-historical political future.

This evening I watched ABC-TV’s program Vet School. This program follows the lives of a number of veterinary science students at a Western Australian university. The fundamental idea seemed to be to create an animal version of the hospital reality program RPA.

As TV, I tend to think it fails. It takes the same approach to showing emotional upset of vets and pet owners as hospital programs do to showing the anguish of doctors, parents and patients. This means that viewers have to sit there trying to feel the emotions involved, which is almost impossible when you don’t have an actual bond to the animal in question. In a slightly awful way, you find yourself watching pretend-humans and feeling pretend emotions.

I have to say, though, that I prefer to think of this as somewhat manipulative TV than the alternative. If a program like Vet School isn’t trying to manipulate our emotions, it must be trying to elicit a genuine emotional reaction. This seems like a bad loss of priorities. In an age when a great many people are unable to afford healthcare in a timely manner or at all, should our hearts bleed for mere animals? And with so much medical suffering in the world, training young minds to work on pets (and not even on livestock) seems like a profligate waste of talent.

I guess I’m over thinking it; but in a world where many people cannot tell ersatz from genuine emotions, anything pulling on the heart strings begs to be looked at cyclically.

The outcome of a mention in the Parramatta Local Court before an unnamed magistrate was reported in the Sydney Morning Herald of 5 August 2013 at p. 19.

Facts
At the time of writing the defendant is charged with the murder of his six-month-pregnant girlfriend Allira Green in Sydney.
On Saturday 3 August 2013 Ms Green was found with a stab wound at Mr Anderson’s flat. She died at the scene. On the afternoon of that day Mr Anderson attended the area police station and was arrested and charged with murder.

Hearing
The matter was mentioned. No application for bail was made by Mr Anderson’s lawyer

Determination
The matter was fixed for further mention at Central Local Court on 15 August 2013. Bail was formally refused.
The only reason this matter warrants blogspace or its own casenote is the interesting (but unsurprising) detail that, despite Mr Anderson’s co-operation with police, neither his lawyer nor the court raised the issue of bail at this stage.

The outcome of a prosecution of two robbers for murder in a Thai court was reported in the Herald Sun newspaper of 9 August 2012 at p. 3.

Facts

Mr Suwannachot attempted to rob 60 year old Australian tourist Michelle Smith on Phuket on 20 June 2012. In the course of the robbery she was fatally stabbed in the chest. Mr Suwannachot fled on a motorcycle driven by Mr Toptong.

Trial

Messrs Suwannachot and Toptong pleaded guilty to murder

Determination

By pleading guilty to murder the offenders avoided the death penalty and were instead sentenced to imprisonment for life.

The outcome of a recommencing hearing before Magistrate Smith in the Shepparton Magistrates Court was reported in the Shepparton News of 23 July 2013 at p. 6.

Facts

On an unstated date, the two accused had argued about spilt coffee and one had refused to drive the other home. In circumstances which are unclear, when the vehicle driven by Mr Al Musawi left the area, Mr Al Mosawy was clinging to the bonnet in what police described as “the starfish position”.

Trial

Both men were convicted of offences which are not detailed in the report. Both were fined $350.00, of which the only payment was made by Mr Al Mussawi ($50.00).

Resentencing

In resentencing the men, Magistrate Smith expressed strong doubt that the men understood the seriousness of their actions or the harm that could have resulted. He considered that Mr Al Musawi was the more blameworthy, having been the driver.

Mr Al Mosawy was resentenced to a fine of $750.00 and Mr Al Musawi to a fine of $1,000.00 and a three-month licence suspension.

The outcome of an application for leave to sue the State of Victoria at common law in the County Court of Victoria was reported on the website of Melbourne’s The Age newspaper on 13 August 2013.

Many thanks to my friend and colleague Jenna Stewart for pointing this decision out.

Facts

The plaintiff worked as a detective with the Victoria Police major crime squad for nine years with significant exposure to the aftermath of acts of violence. It was alleged that he had developed post traumatic stress disorder.

The plaintiff left Victoria Police on a date not stated in the report. He had subsequently operated a successful insurance business, been an investigator for the government of Papua New Guinea and been a senior manager with a number of private security companies. His skills were in sufficient demand for him to have been recently headhunted and offered a role paying $200,000 per annum. He had also established a new personal relationship and written a lengthy memoir.

Legal Framework

Under §134AB of the Accident Compensation Act 1985 (Vic.), an employee may only sue and claim damages at common law for an injury sustained in employment if they are accepted by their employer’s insurer or by the County Court as having suffered a “serious injury”. A serious injury is defined by the Act as being a “permanent severe mental or behavioural disturbance or disorder”.

Hearing

Mr Noonan’s application was heard by Judge McInerney of the Victorian County Court.

In evidence the plaintiff asserted that the mental stresses involved caused him to drink heavily and to have interpersonal difficulties. However, it was also admitted that he was by nature “argumentative, violent and aggressive” and that the Police Force had allowed him to work at his own pace. He proffered psychiatric evidence that his work-related mental state had had a severe effect on social, recreational and domestic life and caused him to lose his marriage, his friendships and his job.

The evidence relied upon by the State included psychiatric opinions that while the plaintiff had symptoms of PTSD, he was not depressed and presented in a normal manner, notwithstanding that he would benefit from mental health care.

Decision

His Honour rejected the plaintiff’s application. Central to the Court’s decision was that, while the plaintiff had suffered PTSD, his psychiatric evidence irreconcilable with his own activities after leaving the Police force. These activities indicated that the effects of the injury were not ‘severe’.

Appeal

The plaintiff has announced his intention to appeal.

Note

The defendant was represented by Mr Paul Jens of counsel.

The judgment in the prosecution of an unnamed teacher before Judge Pullen in the County Court of Victoria was reported in the Herald Sun newspaper of 10 August 2012 at p. 38.

Facts

An unnamed teacher at an unidentified school began to abuse a 12 year old girl in his Year 7 class in 1992. While police were contacted after he was known to have kissed her in an unidentified year, no action was taken save that the school warned him that “the relationship was becoming too close”.

When the student was 13 the offender gave the victim amphetamine and had sex with her for the first time. Following complaints from the victim’s stepfather the offender was transferred to another school but continued the abuse, at one point forming a relationship with the victim’s mother to further this objective.

The offender fled interstate with the victim 1996 and they married. Children were born of the relationship in 1999 and 2000. Two earlier pregnancies occurring when the victim was aged 14 and 15 had been terminated.

Trial

The matter was brought to the attention of police when the marriage broke down.

Determination

Judge Pullen sentenced the offender to seven years imprisonment.