Police v Licciardello (2007) H&FLR 2015-1

Police v Chas Licciardello (2007) H&FLR 2015-1

Sutherland Local Court (New South Wales)

c. 23 January 2007

Coram: Keogh M.

Appearing for the Prosecution: Not known
Appearing for the Defendant: Stephen Russell (instructors not identified)

Catchwords: New South Wales – criminal law – rugby – supporters – satire – offensive behaviour at stadium – reasonable person

Facts: The defendant was a television satirist.  On 14 July 2006 he attended at the Jubilee Stadium prior to a rugby match between the Canterbury Bulldogs and the St George-Illawarra Dragons. In order to parody Bulldogs supporters’ reputation for violence, he dressed in the team colours and offered to sell imitation knuckledusters and flares, a rubber knife, balaclavas and boxes labelled “Rohypnol” as “Official Bulldogs Merchandise”.  The incident was filmed with the intention of later screening it on television.  The spectators present generally took the incident in good spirit, but a number of fans became aggressive (1), prompting police to intervene and charge the defendant with offensive behaviour.

The Summary Offences Act 1988 (NSW), §4 provides that –

(1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.
Maximum penalty: 6 penalty units or imprisonment for 3 months.

(2) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language.

(3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.

The video of the incident was viewed by the Court.

Held: Dismissing the charge, that –

1. The crowd’s response was relevant in considering the charge.  Her Worship observed that “I can’t ignore the fact that overwhelmingly the crowd responded to the accused’s conduct as if it were a joke, which it was – although it may not have been a joke to everyone’s liking”.

2. That one group of people did not appreciate the humour involved and were insulted did not necessarily prove that the conduct was offensive.  Most people at the incident were good natured and shared the joke, and reasonable people would not have been offended.

An application for the police to pay the defendant’s costs was refused.

Judgment

No written judgment is available.  This report has been prepared based on the account in the Herald Sun (Melbourne), 24 January 2007, at p.7.

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(1) Suggesting a failure to appreciate irony!

State v Mayer (2014) H&FLR 2014-65

State v Margaret Renee Mayer (2014) H&FLR 2014-65

230th Criminal District Court (Texas)

11 December 2014

Coram: Judge Hart.

Appearing for the Prosecution: Alison Baimbridge (of Harris County District Attorney’s Office)
Appearing for the Defendant: Guy Womack (of Guy L Womack & Associates)

Catchwords: Texas – criminal law – cyclist – collision with car – failure to aid – sentence

Facts: At 10:20pm on 1 December 2013, a truck driven by the defendant (aged 36) struck cyclist Chelsea Norman (aged 24).  Norman’s injuries included swelling of the brain which lead to her death. The defendant did not stop or attempt to aid the deceased after the collision.

At the time of the accident the street was dark.  The deceased was not wearing a helmet.  Her bicycle did not have lights and she was wearing dark clothing.  Investigators could not determine whether she had been riding in the bicycle lane. The defendant had been drinking with coworkers and become lost while attempting to drive home.  It was not established whether she was intoxicated.

The defendant was charged with failing to stop and render aid, a felony.  She pleased not guilty on the basis that she claimed to have thought that she had hit a tree and not a person.

During the trial the jury were advised that the defendant had been convicted of driving while intoxicated in 2002 and that she may have regularly abused alcohol and drugs. In April 2014 she was remanded after breaching her bail conditions by drinking alcohol.  The jury were also shown photographs of the deceased’s autopsy (1).

Held: The defendant was convicted of the charge presented.  It was open to the court to impose penalty ranging from two years probation to twenty years imprisonment.    She was sentenced to fifteen years imprisonment.

Judgment

Sentence was decided by the jury and no written judgment is available.  This report has been prepared based on accounts in the Houston Chronicle on 11 December 2014 and 12 December 2014, on radio station KHOU on 10 December 2014 and website Click2Houston on 10 December 2014.

Note: The strong penalty imposed in this case suggests it may represent a high water mark in hostilities between motorists and cyclists. In 2014 commentator suggested that some motorists might understandably take steps to harm cyclists (2).  One Australian broadcaster referred to cyclists whose conduct falls short of perfection as “cockroaches on wheels” (3), although no doubt the implied threat of extermination was unintentional (4).   One might hope that the dissipation of antagonism predicted by Allen Mikaelian is underway (5)

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(1) There is room for doubt as to what inferences the jury could usefully have drawn from these photographs.  See Kevin Davis, ‘Brain Trials’, 98(11) ABA Journal 36 at 39-41 (2012).

(2) Courtland Milloy, ‘Bicyclist bullies try to rule the road in D.C.’, Washington Post, 8 July 2014.

(3) Derryn Hinch, ‘Cockroaches on Wheels’, Human Headline website, 19 August 2013.

(4) Disturbingly, ‘cockroaches’ was the name used by the perpetrators of the Rwandan genocide for their victims: Prosecutor v Bizimungu, The Independent, 18 May 2011 (Int. Crim. Trib. Rwanda, 2011); United States v Munyenyezi (1st US Cir. Ct. App., Lynch CJ, Thompson and Barron JJ, 25 March 2015, unreported).

(5) Allen Mikaelian, ‘Pedaling through Memory’, 52(6) Perspectives on History 61 (2014).

State v Nisbet (2014) H&FLR 2014-58

State v Andrew Nisbet (2014) H&FLR 2014-58

Alameda County Superior Court (California)

9 October 2014

Coram: Grimmer J

Appearing for the Prosecution: Edward Viera-Ducey (Deputy District Attorney)
Appearing for the Defendant: Timothy Rien

Catchwords: California – criminal law – golf – coach – assault on student – sentence

Facts:  The defendant was a prominent 32 year old youth golf instructor.  He sexually assaulted three of his students who were aged between 12 and 17 years.  He ultimately pleaded guilty to one count of “lewd and lascivious acts” on each of his victims, forced oral copulation, possession of child pornography and three counts of solicitation to murder (concerning an attempt to hire an assassin to kill his victims).  As a result of a plea agreement 79 other charges were withdrawn.

Held:  The offender was sentenced to 27 years and four months imprisonment and fined $10,000.00.  He was ordered to pay compensation to his victims and to register as a sex offender.

Judgment

No written reasons are available.  This report has been prepared based on reports in the Contra Costa TimesNew York Daily News and ESPN.

Note

The sentence imposed bears comparison to the 28 year sentence imposed in R v John Xydias (2009), The Age, 30 June 2009. for a much greater array of offences.  This suggests the significance that might be attached by Californian courts to the breach of trust involved in an assault by a sports coach on one of their charges.

X v French Republic (2007) H&FLR 2014-56

Dr Eric X v French Republic (2007) H&FLR 2014-56

Court of Cassation (France)

5 June 2007

Coram: Cotte P, Blondet and Farge (conseillers)

Appearing for the Appellant: Didier Le Prado and Jean-Jacques Gatineau
Appearing for the Respondent: Francis Fréchède (Public Prosecutor)

Catchwords: France – criminal law – doctor – surgery – obese patient – pulmonary embolism – death – manslaughter – compensation

Facts: The appellant was a surgeon specialising in plastic and reconstructive surgery.  On 13 January 2000 he performed an abdominoplasty on an obese 56 year old woman patient in order to remove excess skin and fatty tissue.  In the course of the surgery the patient developed a pulmonary embolism which caused her death.

It was found that the danger to the patient had been increased by the appellant’s decision not to delay the procedure pending the patient losing weight by following a dietary regime recommended by an endocrinologist; in the circumstances the surgery performed should have been considered only as a last resort.  It was further found that he had not drawn the attention of the attending anaesthetist to the risk of thromboembolisation and that he had also not drawn those dangers to the patient’s attention.

The defendant was convicted at first instance of homicide involontaire (≈ manslaughter).  The Court of Appeal at Versailles quashed the conviction but declared the defendant liable to pay compensation to the deceased’s heirs pursuant to article 470-1 of the Code du Procedure Pénale*.  The defendant appealed.

Held: Per curiam, dismissing the appeal –

1.  While the doctor’s responsibility relates to the choice of medical means and not to the ultimate result, this principle is displaced where it is established that there has been an error in the carrying out of those means.

2.  While a doctor is obliged to inform their patient of the risks of proposed treatment, the doctor is entitled to adduce a range of evidence (including presumptions) to demonstrate that they have fulfilled that obligation.  It was not open to the Court of Appeal to find that Dr X had failed to fulfil this obligation solely from the absence of a signature by the deceased.

3.  On the available evidence, the Court of Appeal was able to find that Dr X’s errors had directly contributed to the patient’s death and justified it ordering him to make recompense to her heirs.

Judgment

The Court’s judgment is available here.

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* No copy of the decision can be located.

Velasquez v Superior Court (2014) H&FLR 2014-35

Jorge Velasquez, Jr v Superior Court of Los Angeles County and The People (2014) H&FLR 2014-35

Court of Appeal of California (Second Appellate District)

17 July 2014

Coram: Klein PJ, Aldrich and Kitching JJ

Appearing for the Petitioner (Velasquez): Messrs Ronald Brown, Albert Menaster, Kenneth Erlich and Dylan Ford (public defenders)
Appearing for the Respondent (Superior Court): No appearance
Appearing for the Real Party in Interest (People): Mesdames Jackie Lacey, Phyllis Asayama and Beth Widmark and Mr Matthew Brown (District Attorneys)

Catchwords: California – criminal law – bicycle – intoxicated cyclist – injury – reckless – vehicle – definition.

Facts: On 1 April 2013 the defendant was travelling downhill on his bicycle after a prolonged drinking session. His bicycle had no brakes and could only be stopped with foot pressure. A car pulled in front of him and to avoid it he veered onto the wrong side of the road, colliding with Ms Sudha Russell, who suffered significant injuries. The defendant’s blood alcohol reading was 2.18 and he was charged with reckless driving of a vehicle causing injury under §23103 of the Californian Vehicle Code (Code).

The Code is ambiguous as to its application to bicycles. Section 670 defines a vehicle as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power …” However, §21200(a) states that a “person riding a bicycle … upon a highway … is subject to all the provisions applicable to the driver of a vehicle by this division”.

On the basis that a bicycle is not a vehicle, the defendant applied to dismiss the proceedings. The trial court denied the application but invited the defendant to seek a writ of prohibition in the Court of Appeal: People v Velasquez (Superior Court of Los Angeles County, Priver J, 7 November 2013, unreported).

Held: Dismissing the application, that –

1. A specific provision prevails over a general one. Because §21200 (and by extension §23103) applies specifically to cyclists, it is to be preferred to the generally drawn §670. A cyclist can therefore be subject to criminal charges for reckless driving.

People v Ahmed (2011) 53 Cal. 4th 156 and People v Calderon (2013) 214 Cal. App. 4th 656, followed.

Clingenpeel v Municipal Court (1980) 108 Cal. App. 3d. 394, not followed.

2. While bicycles and motor vehicles will often pose significantly different levels of danger to the public, the unfairness is mitigated by the availability of lesser penalties for reckless cyclists.

Judgment

The court’s judgment is available here.

Official Veterinarian v Unidentified Defendants (2013) H&FLR 2014-21

Official Veterinarian v Unidentified Defendants (2013) H&FLR 2014-21

Augsburg District Court

c. 9 January 2013

Coram: Wieser M.

Appearing for the Prosecutor: Not known

Appearing for the Defendants: Not known

Catchwords: Germany – Bavaria – criminal law – dog – overfeeding – obesity – cruelty to animals

Facts: The defendants were a couple aged 69 and 71 years.  In October 2010 they came into possession of a Pekinese dog.  It was alleged that they overfed her such that her weight increased to 22 kilograms (48.4 pounds).  The standard weight of a Pekinese is around 6 kilograms (13.2 pounds).  Advice from a veterinarian as to proper feeding had been rejected.

In April 2012 the dog’s condition was reported to authorities by one of their neighbours.  The dog was found to be suffering two torn cruciate ligaments, extreme shortness of breath and had an inaudible heartbeat.  The animal was unable to walk and instead moved by dragging itself.  Destruction of the animal was recommended*.  The owners were charged with breaches of the Animal Welfare Act.  They responded that the dog was overweight when they acquired it and in particular denied feeding it chocolate.

Held: The charges were upheld.  A penalty of several thousand Euros was imposed and the offenders were ordered to perform 80 hours of community service**.

Judgment

No written judgment is available.  The report was compiled based on reports in the Augsburger Allgemeine on 3 August 2012 and 9 January 2013, the Welt of 8 January 2013, the Süddeutsche Zeitung of 24 August 2012 and the Sächsischen Zeitung of 2 August 2012.  Translations by Google.

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* The dog was ultimately given to another owner and at last report weighed 12 kilograms.

** An appeal against the penalty was abandoned.