Posted on by Stephen Tuck

Litigation and Protests

By now an ocean of ink has been spilt in the wake of the killing* of George Floyd. I haven’t added to it. If anything can be learned from the matters of <a rel="noreferrer noopener" href="http://&lt;!– wp:file {"id":1041,"href":"https://stephenthelawyer.files.wordpress.com/2020/06/pell-v-r-2020-94-aljr-394.pdf&quot;} –> <div class="wp-block-file"><a href="https://stephenthelawyer.files.wordpress.com/2020/06/pell-v-r-2020-94-aljr-394.pdf">pell-v-r-2020-94-aljr-394</a><a href="https://stephenthelawyer.files.wordpress.com/2020/06/pell-v-r-2020-94-aljr-394.pdf&quot; class="wp-block-file__button" download>Download</a></div> Pell v R and <a rel="noreferrer noopener" href="http://&lt;!– wp:file {"id":1042,"href":"https://stephenthelawyer.files.wordpress.com/2020/06/maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported.pdf&quot;} –> <div class="wp-block-file"><a href="https://stephenthelawyer.files.wordpress.com/2020/06/maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported.pdf">maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported</a><a href="https://stephenthelawyer.files.wordpress.com/2020/06/maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported.pdf&quot; class="wp-block-file__button" download>Download</a></div> Maryland v Goodson it’s that public passion does not necessarily translate into legal outcomes.

Be that as it may. There is one side of matters that has had me thinking, which is the potential litigation fallout. In particular, cases where participants in the protests find themselves suffering loss or damage

To the asshole who vandalized my car as my wife and I left the protest… from Seattle

It seems to me someone like the poster above would be in a challenging legal position in seeking compensation from the organisers of a protest, and in particular one where the protest morphed into a riot. The most obvious analogy I can think of is that of sporting injuries, where players are generally taken to consent to the sort of harms (for want of a better word) which are an inherent part of the game (Smith v Emerson). On one view of the matter, the risk of a protest – especially one with angry and upset people – becoming violent may be an inherent danger of demonstrations. On the other hand, the consent posited does not extend to acts done solely with the intention of causing harm (McNamara v Duncan).

Further, deliberate harm is not considered to be susceptible to a defence of voluntary assumption of risk (Sibley v Milutinovic). What might be a more interesting question is whether a person can be taken to have engaged in contributory negligence by remaining after a demonstration has already deteriorated into indiscriminate actions as in the case of Ms Tauss mentioned above.

* I say killing rather than murder quite consciously and deliberately. Not knowing what the elements of murder are in Minnesota law it seems unwarranted for me to pre-judge the matter.

Posted on by Stephen Tuck

What part of “shall not” don’t you understand?

It shouldn’t be difficult should it?  You just have to avoid acting like a tool.

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Image credit: Ondrick Larsen Lawyers

In 2017 an intervention order was served on a man in Portland, Australia.  He was forbidden from physically or verbally intimidating a particular other person.  On 13 April 2018 he was at that person’s home when an argument saw him grab their chair and then verbally abuse them.  The offender was charged with breaching an intervention order.  The report leaves unclear what sort of intervention order was imposed.  However, the Family Violence Protection Act 2008 (Vic.), §123(2) provides that breaching a family violence intervention order is punishable by up to two years imprisonment.

The defendant was presented for trial in Portland Magistrates Court where he pleaded guilty.  He submitted that a series of quarrels combined with a failure to take medication had lead to the actions breaching the order.  Toose M imposed a fine of $1,200.00.

Police v Kennett (2018) Portland Observer & Guardian, 2 May 2018, p.5

Posted on by Stephen Tuck

How not to solve housemate issues

We’ve all had that housemate: the one who’s never adjusted to the fact that their mother isn’t there to clean up after them. It’s still not a good idea to go Jackie Chan on them.

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Image from here

On 2 August 2017 a 32 year old man from Portland, Australia, locked a housemate out of their dwelling.  When the housemate arrived home at 3:30am, the offender began to berate them over uncompleted chores, finally pushing them onto a bed and slapping them.  He was charged with recklessly causing injury (Crimes Act 1958 (Vic.), §18):

A person who, without lawful excuse, … recklessly causes injury to another person is guilty of an indictable offence. Penalty: … If the injury was caused recklessly—level 6 imprisonment (5 years maximum).

The offender pleaded guilty in Portland Magistrates Court.  Toose M fined him $1,000.00.

Police v King (2018) Portland Observer & Guardian, 2 May 2018, p.5.

Posted on by Stephen Tuck

Graeske v R (2015) H&FLR 2015-36

Joshua Graeske v The Queen (2015) H&FLR 2015-36

Court of Appeal of Victoria

28 August 2015

Coram: Maxwell P and Whelan JA

Appearing for the Appellant: Ms CA Boston and Mr A Imrie (instructed by Melasecca Kelly & Zayler)
Appearing for the Respondent: Ms D Piekusis (instructed by Ms V Anscombe, Acting Solicitor for Public Prosecutions)

Catchwords: Australia – Victoria – Australian football – assault – sentencing.

Facts: On 14 July 2012 the defendant (then aged 21) was playing football in an amateur match.  During the match he pulled an opponent to the ground and punched him a number of times, causing significant facial injuries.  He was charged with recklessly causing serious injury (Crimes Act 1958, §17).

The defendant pleaded guilty to the charge and was sentenced to be imprisoned for three years, to serve a minimum of two years: DPP v Graeske (County Court of Victoria, Judge Wischusen, 7 November 2014, unreported).  During the course of the hearing the Sentencing Amendment (Emergency Workers) Act 2014 commenced, the effect of which was (in part) to allow terms of imprisonment to be combined with community corrections orders. Due to an apparent oversight, neither the prosecution nor the defence addressed these amendments in their submissions to the court.

The defendant appealed against the sentence imposed.

Held: Allowing the appeal, setting aside the original sentence and re-sentencing the appellant, that –

1. Because no submissions were made in light of the Sentencing Amendment (Emergency Workers) Act 2014, the trial judge inevitably misdirected himself as to the available sentencing options.

2. Noting the appellant’s youth, difficult personal history and other factors, a sentence of imprisonment for one year followed by a community corrections order of three years (geared to address the appellant’s mental health and drug problems) was appropriate

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

State v Saad (2015) H&FLR 2015-29

State of Michigan v Bassel Abdul-Amir Saad (2015) H&FLR 2015-29

Wayne County Circuit Court (Michigan)

13 March 2015

Coram: Judge Cameron

Appearing for the Prosecution: Erika Tusar (of Wayne County Prosecutor’s Office).
Appearing for the Defendant: Cyril Hall (of Law Office of Cyril C. Hall, PC)

Catchwords: Michigan – soccer – referee – assault – death – homicide – manslaughter – sentence

Facts: The defendant, a 36-year-old Lebanese national, was playing in a recreational soccer match at Livonia on 29 June 2014.  The referee, John Bieniewicz, issued him with a red card, ejecting him from the game.  The defendant lost his temper and punched the referee, causing fatal injuries.

The accused was charged with second degree murder and pleaded guilty to involuntary manslaughter.  His history included assaulting another soccer player during a match in 2005.

Held: Sentencing the defendant to fifteen years imprisonment with a minimum term of eight years –

1. That the defendant was an example of what the community considered wrong with escalating violence in sports. His offence was “a childish, senseless act of taking another man’s life with no excuse or justification other than dealing with rage that [he was] unable to contain” (1).

2. That the defendant pay $9,265 restitution to the deceased’s family in respect of funeral expenses.

Note: It is possible that the defendant’s potential deportation following his term of imprisonment may have been a factor in the sentence imposed.

Judgment

The court’s case record (including a summary of the sentence) is available here.  This report also used information contained in reports published in the Detroit News of 20 February 2015, the Detroit Free Press of 13 March 2015, the New York Daily News of 13 March 2015, USA Today of 13 March 2015, and reported on NBC News on 13 March 2015, on CBS News on 13 March 2015 and on WXYZ Detroit on 13 March 2015.

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(1) Cf the sentencing remarks in DPP v Ryan (2007) H&FLR 2014-49.

Posted on by Stephen Tuck

DPP v Ryan (2007) H&FLR 2014-49

Director of Public Prosecutions v Stephen Newton Ryan (2007) H&FLR 2014-49

County Court of Victoria (Australia)

c. 20 March 2007

Coram: Judge McInerney

Appearing for the Prosecution: Carolyn Burnside (instructed by the Office of Public Prosecutions)
Appearing for the Defendant: Brian Bourke (instructors not known)

Catchwords: Australia – Victoria – soccer – altercation between spectators -serious injury – assault – sentencing considerations

Facts: On 29 June 2003 the accused attended an under-11s soccer match at Caloola Reserve, Oakleigh, in which his son was playing. It was alleged that he had been telling players from his son’s team to kick and punch a player on the opposing team after a penalty shot was awarded. The victim – the father of one of the players on the opposing team – remonstrated with him. In the ensuing altercation the victim grabbed the accused’s umbrella and suffered a hand injury when it was yanked away. When the victim turned to walk away, the accused struck him from behind with the umbrella, causing a spoke to become lodged in his back.

The accused was charged with intentionally or recklessly causing serious injury*. He pleaded not guilty at a committal hearing in the Melbourne Magistrates Court and was committed to stand trial in the County Court: McLean v Ryan (2006), The Age, 15 September 2006. At trial he pleaded guilty to assault**.

Held: The Court accepted that the offence had been committed in the heat of the moment and that the accused had allowed himself to be overcome by circumstances. However, His Honour also considered that it was becoming too common for parents at soccer matches to lose their self-control, and that neither the accused nor victim had brought credit to themselves and had set a bad example to the children present.

A conviction was recorded against the accused and a fine of $3,000.00 imposed.

Judgment

No written judgment has been made available. The report has been prepared based on newspaper accounts in The Age of 1 July 2003  and 15 September 2006 and the Herald Sun of 14 September 2006 and 21 March 2007.

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* Crimes Act 1958 (Vic.), §16 and §17.
** Summary Offences Act 1966 (Vic.), §23