Posted on by Stephen Tuck

And the Hell with us too.

Over the weekend another woman died in Melbourne.  Laa Chol, a young law student of Sudanese background, was stabbed after being caught up in a fight at a party.  Just as they did after the murders of Jill Meagher and Eurydice Dixon, the usual array of fingerpointing and virtue signalling has begun.  From Facebook –

Male violence is a major “law and order problem” but we never hear Dutton mention that

From an acquaintance of mine –

WE as men need to remind ourselves in everything we do, every step along the journey, that we should not sexually assault or rape women.

When one looks at the pictures of the victims I have mentioned, something in particular stands out:

Laa Chol
Eurydice Dixon
Jill Meagher

Images from here

All young.  All pretty.  All plausibly middle-class.  Now let’s consider the death of Samantha Kelly in 2016.  Kelly was not young.  She wasn’t pretty.  She was an intellectually disabled woman living a down-at-heel existence in regional Victoria when a housemate caved her head in with a hammer*.  Remember the outpouring of community grief?  Neither do I.

Does anyone remember Margaret Maher? Maher was a 40 year old drug-addicted prostitute in northern Melbourne.  Her diet was poor and left her at permanent risk of heart failure.  In 1997 she encountered serial killer Peter Dupas.  As Kaye J afterwards said in his sentencing remarks** –

After you murdered her, you then mutilated the deceased’s body … and left it by the side of a road, in a desolate place, as a disgusting display of loathing for the deceased and contempt for her dignity. Not content with what you had done to her in life, you robbed her of her dignity in death. Those actions are, I consider, an eloquent insight into the unmitigated evil which actuated you to kill Margaret Maher and to behave as you did.

I can’t remember Maher’s death rating a headline until Dupas faced a charge of murder.

Nor has there been much public reaction to the death of another 40 year old working girl, Tracy Connelly, in whose death the Victorian Coroner recently issued a finding***.  Connelly sometimes conducted business in a van owned by her and her partner.  And on the night of 21 July 2013 she died in that van, stabbed repeatedly until the knife passed through her left eye and into her brain.  Her killer has not been located.

May I suggest that the difference in response has much – perhaps everything – to do with class and appearance?  It appears much easier for those of us who are articulate and in control of our lives to  care for the pretty, the popular, and those from our own class.  No doubt people will say that of course the lives of the working class and underclass matter greatly.  But the difference in responses will remain the same, and so will the doubt about motivation.  Facta non verba.

Some people get bent out of shape at the idea of accusing all men of being violent.  I don’t.  The response is too narrow.  Our society has decided some lives deserve less mourning because the victims were faceless or voiceless?  If so, then the hell with all of us.

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* He is now serving 22 years for murder: R v Arthur (2018) Bendigo Advertiser, 28 February 2018.

** R v Dupas [2004] VSC 281

*** In the Death of Tracy Anne Connelly (Coroners Court of Victoria, Hinchey C, 16 July 2018, unreported)

Posted on by Stephen Tuck

Ex Africa semper aliquid novi

Nobody really won on 25 July 2005.

In a town in South Africa on the night I mentioned, Mr Shavhani Ramusetheli was shot in what may have been a robbery.  Four men were charged with murder, robbery and attempted murder.  In the Limpopo High Court, one of the men was convicted of murder and aggravated robbery.  The sole evidence against him was an extra-curial statement by one of his co-accused exculpating himself and incriminating the others –

In that statement, the first accused alleged that he was party to a conspiracy involving his co-accused in terms of which it was agreed that they would rob the deceased of his money. He alleged that his role was to point out the deceased’s homestead to the second and third accused whilst the fourth accused’s role was to supply the firearm to be used during the robbery. The appellant drove them to the deceased’s home in a Toyota Venture motor vehicle owned by the appellant’s employer. The first accused said that he was an unwilling participant in this escapade but was compelled to participate for fear of reprisal at the hands of his co-conspirators and in particular the fourth accused. He went on to allege that it was the second accused and the appellant who committed the offences with which they were charged and that the former was the one who pulled the trigger. In his testimony at the trial, the first accused in substance regurgitated the contents of his statement.

Mulaudzi v S (Theron, Petse and Willis JJA, Supreme Court of Appeal of South Africa, 20 May 2016, unreported)

The man with whom we are concerned was sentenced to imprisonment for life for murder and to 20 years imprisonment for robbery: S v Mushweu & Ors (Limpopo High Court, Makgoba AJ, 22 August 2005, unreported.

LP High court
Image from here

The defendant appealed to the Supreme Court of Appeal.  The matter took over a decade to be dealt with, largely for reasons outside the appellant’s control.  Lewis and Saldulker JJA and Mothle AJA noted that the common law principle that

admissions made extra-curially were not to be used against a co-accused. … [S]ince any out-of-court statement by a co-accused would compromise the constitutional right to a fair trial, it should not be admissible against an accused.

The Court upheld the appeal and set aside the conviction.  A verdict of acquittal was entered in its place.

Ndwambi v S, The South African, 20 June 2018.

 

Posted on by Stephen Tuck

Bad weather can be murder

What happens when a civilian is conscripted into police work?

On 13 March 2011 Kristine Constantino phoned the California Highway PAtrol from her home in Kettenpom, California.  She whispered “help me” and that she lived at the end of the Kettenpom airstrip.  The dispatcher formed the impression that she was trying to avoid being overheard.  The message was passed to the dispatcher of Trinity County Sheriff’s Office, who tried to call Constantino without success.  The call for help was passed to the Office’s Corporal Ron Whitman.

skyrichardsonandkristineconstantinorogueriver201012
Christopher Richardson and Kristine Contantino (Image from here)

Apparently because Kettenpom is a remote town, Whitman called Norma Gund who lived near the airfield.  He asked her to do a welfare-check on Constantino.  He said that Constantino has called 911 for help, which probably related to bad weather.  He did not advise her that the caller was whispering or trying not to be overheard.  Gund and her husband went to Constantino’s home.  Constantino and her partner Christopher Richardson had immediately before been murdered by Tomas Gouverneur, who was still at the scene and attacked the Gunds, causing significant injuries (the full sequence of events is detailed in an article from radio station KMUD).

The Gunds sued Trinity County as Whitman’s employer.  Thye alleged that he had negligently misrepresented that the call for help was likely weather related and did not suggest a crime in progress.  The County applied to dismiss the claim  On the grounds that the Gunds’ only remedy was in workers’ compensation: Labour Code §3602.  California’s Labour Code §3366 provides that:

… each person engaged in the performance of active law enforcement service as part of the posse comitatus or power of the county, and each person … engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division.

The trial court agreed and dismissed the claim: Gund v County of Trinity (Trinity County Superior Court, Scheuler J, 27 April 2014, unreported).  The Gunds appealed.

The trial court’s decision was affirmed by the Third District Court of Appeal.  The Court noted that if Corporal Whitman had responded to Constantino’s call for unspecified ‘help’, he would have been engaged in active law enforcement because

any 911 call seeking unspecified help presents a risk of criminal activity.  Since the deputy would have been engaged in active law enforcement had he responded, plaintiffs were engaged in active law enforcement when they responded to the 911 call on his behalf — regardless of the deputy’s misrepresentations to plaintiffs that the call was likely weather-related and omission of facts that the caller whispered for help, was disconnected, and did not answer a return call. Even though plaintiffs were unaware of the facts suggesting potential criminal activity and felt lulled into a false sense of security by the deputy’s misrepresentations and omissions, plaintiffs still knew they were responding to a 911 call for help, the nature of which was not certain.

It followed that §3366 applied.  Because the Gunds could claim workers compensation, they had no common law damages claim.

Gund v County of Trinity (2018) __ Cal.App.4th __.

Posted on by Stephen Tuck

Say what, now?

Nobody could say Jay Chandler didn’t give it a his best shot.  It still wasn’t a winning strategy to change stories at the last minute.

riot-trinidad-prison-1
Golden Grove Remand Prison (Image from CaribFlame website)

On 8 October 2004 Jay Chandler was an inmate at Golden Grove Remand Prison in Trinidad and Tobago.  He was involved in a fight with another inmate who was shortly afterwards found to have sustained a fatal stab wound.  He was charged with murder.

Chandler’s first trial in the High Court of Trinidad and Tobago ended in a hung jury*.  He was retried, convicted and sentenced to death**.  His appeal to that country’s Court of Appeal was dismissed***.  On each of the three proceedings he denied having stabbed the victim.  He appealed to the Privy Council where he sought for the first time to admit medical evidence supporting a defence of diminished responsibility.

By a 3-2 majority the Board dismissed the appeal.  The Supreme Court of Judicature Act 1962 (Trin. & Tob.) §47 provides that

For the purposes of an appeal in any criminal cause or matter, the Court of Appeal may, if it thinks it necessary or expedient in the interest of justice … receive the evidence, if tendered, of any witness …

Previous cases had established that any fresh evidence should be capable of belief and that a reasonable explanation be given for the failure to present it at trial, but that an appellate court had an overriding power to admit new evidence if it were in the interest of justice.  In this case the majority (Lords Carnwath, Sumption and Reed) found it significant that the new evidence directly contradicated the case proffered at trial.  There was no explanation of the change in position.

Crucially, in the Board’s view, there is no evidence that the failure to advance a case of diminished responsibility at the trial was anything other than deliberate, and indeed a fair reflection of the appellant’s own position. … [T]here is no evidence even now that the appellant has himself changed his position, or would do so if there were to be a retrial.

The minority (Lords Kerr and Lloyd-Jones) considered that unless there was a sound basis for concluding that the Chandler knowingly neglected to advance this defence, it should not be presumed that he deliberately chose not to raise it.

Strikingly, no member of the Board considered that the death sentence on its own made a possible new defence significant enough to warrant a retrial in the interests of justice.  This may reflect the rarity with which Trinidad and Tobago actually carries out the death sentence.

Chandler v The State (2018), Privy Council, 12 March 2018.

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* The State v Chandler (2009) Trinidad Express, 2 April 2009.
** The State v Chandler (2011) Trinidad Guardian, 19 August 2018; Trinidad Express, 17 August 2011.
*** Chandler v The State (2013) Trinidad Express, 16 December 2013.

Posted on by Stephen Tuck

A castle is a castle

A man’s (mobile) home is his castle.

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

Posted on by Stephen Tuck

Too soon?

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

Sherri_Rasmussen
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.

Posted on by Stephen Tuck

The Queen v Lane (2011) H&FLR 2014-16

The Queen v Keli Lane (2011) H&FLR 2014-16

Supreme Court of New South Wales

15 April 2011

Coram: Whealy J

Appearing for the Crown: Mark Tedeschi SC (instructed by the Solicitor for Public Prosecutions)
Appearing for the Defendant: Keith Chapple SC (instructed by Archbold Legal)

Catchwords: New South Wales – murder – newborn – circumstantial – water polo – Olympics – sentencing – mother – premeditated

Facts: The defendant was convicted of the murder of her newborn daughter on or about 14 September 1996. Earlier that day (then aged 21 years) she had been discharged from Auburn Hospital with her daughter but later that day arrived home without her. She had concealed both the pregnancy and birth from her associates. The child’s body has never been located and the Crown’s case was entirely circumstantial. Lane pleaded not guilty and maintained at trial that she had given the child to her (the child’s) father to raise and not seen it since.

At the time of the offence the defendant was a sports enthusiast and semi-professional athlete, as were many of her friends and family members. The Crown argued at trial that the murder was prompted by the defendant’s wish not to have a child interfere with her goal of representing Australia in water polo at the 2000 Olympics in Sydney.

Held: Whealy J sentenced the defendant (by then aged 35 years) to 18 years imprisonment, to serve a minimum of 13 years and five months. He did not take the option of imposing a sentence of life imprisonment. Relevant to the sentencing decision were the factors that –

1. The killing of a child by its mother is “tore asunder the natural relationship between mother and daughter”

2. The offence had been premeditated for a short period.

3. Aggravating factors were the age of the victim and that the murder involved abuse of a position of trust.

4. The Court accepted that she had murdered her daughter “in a situation of desperation … [from which] from her perception there was simply no way out”. His Honour accepted that Lane was unlikely to reoffend and presented no risk to the community.

The defendant’s (perhaps excessive) passion for sports appears not to have been an aggravating factor.

Judgment

Whealy J’s sentencing remarks are restricted. This report has been prepared based on reports prepared by the Australian Broadcasting Corporation and the Sydney Morning Herald.

An appeal against conviction to the Court of Criminal Appeal was dismissed: Lane v R [2013] NSWCCA 317. It appears no attempt was made to appeal to the High Court of Australia.