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Annoyed? Inconvenienced? Nah, just incandescent with rage ...

... and I don't even live in Sydney. However, I am gobsmacked by the latest stupidity of the bunch of thugs that calls itself the NSW government. My learned colleague the president of the NSW Bar Association obviously shares my concern:

World Youth Day regulations undermine our basic rights

The president of the New South Wales Bar Association, Anna Katzmann SC, has condemned the Iemma government’s World Youth Day regulations as a direct affront to freedom of speech and assembly.

‘To make something that causes inconvenience to people the basis for a criminal offence is both unnecessary and repugnant.

‘It is difficult to understand the need for, let alone the wisdom of, such a law’, said Ms Katzmann.

Creating a criminal offence by regulation bypasses the same level of parliamentary and public scrutiny that would be given to an Act of parliament.

‘Who required this? Why are the existing laws good enough to regulate conduct at, say, the Mardi Gras parade or the Rugby World Cup, but not on this occasion?’ Ms Katzmann said.

To make matters worse, the terms of the regulation are vague, its operation uncertain and it does not at least require the conduct to be disorderly or insulting.

In this last respect it is in stark contrast with existing laws governing crowd behaviour at Mount Panorama or the Sydney Cricket Ground.

‘The mere presence in the vicinity of a person wearing the apparel or insignia of another religion might be annoying or inconvenient to a participant in a World Youth Day event. So, too, the presence of a protestor.

‘If I were to wear a T-shirt proclaiming that “World Youth Day is a waste of public money” and refuse to remove it when an officer of the Rural Fire Service asks me to, I would commit a criminal offence. How ridiculous is that?

‘Why should participants in a World Youth Day event be the arbiters of good taste and behaviour and why should their sensitivities or those of a police officer, an SES member or a member of the Rural Fire Service dictate the behaviour of other, law abiding members of the public?’ Ms Katzmann concluded.

Here’s the relevant regulation:

7 Control of conduct within World Youth Day declared areas

(1) An authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that:

(b) causes annoyance or inconvenience [my emphasis] to participants in a World Youth Day event,

(2) A person must not, without reasonable excuse, fail to comply with a direction given to the person under subclause (1).

Maximum penalty: 50 penalty units.

(3) A person is not guilty of an offence under this clause unless it is established that the authorised person warned the person that a failure to comply with the direction is an offence.

(4) In this clause, authorised person means:

(a) a police officer, or

(b) a member of an SES unit (within the meaning of the State Emergency Service Act 1989) or a member of the NSW Rural Fire Service, but only if the member is authorised by the Authority in writing for the purposes of this clause.

So what is a World Youth Day “declared area”? See Schedule A:

Event sites [47 of them…]

Sydney Adventist College Activity Centre
Australian Museum
Barangaroo site as defined in section 3 (1) of the World Youth Day Act 2006
Hyde Park Barracks
B’naiB’rith Centre
Birrung Gallery
Customs House
St Mary’s Cathedral
Darling Harbour
The Domain
Emmanuel Synagogue
Cinema Paris
Pilgrim Walking Route (as shown on the map entitled “World Youth Day – Pilgrimage walking route” prepared by the Authority and dated 29 May 2008 and deposited in the office of the Authority)
Barangaroo Walking Route (as shown on the map entitled “World Youth Day – Main event walking routes: Tuesday to Friday 15 to 18 July 2008” prepared by the Authority and displayed on the Authority’s website)
Centennial Park
Randwick Racecourse
Royal Botanic Gardens
Royal Agricultural Society Showground
The University of Sydney
Art Gallery of New South Wales
State Sports Centre
Sydney Harbour Bridge
Sydney Olympic Park
Harbourside Amphitheatre
Hyde Park, between Elizabeth and College Streets
Legion of Mary
Loreto Kirribilli
The Mint
Maunsell Wickes at Barry Stern Galleries
Mary MacKillop Place
National Trust Centre, Observatory Hill
The University of Notre Dame Australia (Darlinghurst Campus)
Our Lady of the Rosary
Sydney Opera House
The Sydney Jewish Museum
King Street Gallery on William
St Collumcilles Woolloomooloo
St Joseph’s Catholic Church Edgecliff
St Paul’s Catholic Chapel East Sydney
St Peter’s Catholic Church Surry Hills
St Scholastica’s Chapel Glebe
St Scholastica’s Trixie Forrest Hall, Glebe
Tumbalong Park
National Council of Jewish Women of Australia
Paddington Uniting Church
Wynyard Railway Station, Barangaroo site, Sydney Opera House, Royal Botanic Gardens, The Domain, Hyde Park,
Central Station, Darling Harbour, Centennial Parklands, Randwick Racecourse and Mary MacKillop Place as shown on the map entitled “Map of key World Youth Day venues and facilities in and around Sydney City” dated Monday 23 June 2008 prepared by the Authority and displayed on the Authority’s website.

Then there are (wait for it) 584 Accommodation and Catechesis sites” – predominantly schools (and not just Catholic ones, either), and 35 “Transport sites”, mostly railway stations, plus a few bus interchanges and terminuses.

I’m sorely tempted to visit Sydney on this ridiculous occasion, wearing the most offensive t-shirt that I can lay my hands on, and see if I can get arrested.

And – here’s a pleasant thought – just think what fun Chaser should have with this inanity.


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Unexpected entertainment on a bleak Sunday

So, Bill Avent when someone surpasses you at pedantry, it's really "microscopic nit-pickery". That's most amusing.

Care for a spade down there, or would a ladder be handier?

Lawyers in clover

"You have my number. "

 Malcolm, I sincerely hope you are not wishing me ill to your own advantage but yes, I'll bare you in mind.

Richard: Scott, I've decided to press on and publish in spite of the possibly Freudian aspects of your wordchoice.  The concept of a naked Mr Duncan is too much for moi to consider.  Also, I can't contemplate this bear of considerable brain wishing anything but the best for anyone.

Bareing it all with Sigmund

Naked and unmalicious?    Too much even for me to contemplate.

Father Park,

Paying a dickhead employee compensation is not the same thing as being responsible for his crimes, is it?  If he went out and committed a crime whilst working for you, you cannot be held responsible for his crime. That is the crux of the matter.

I have already said that a church official who moves a pedophile priest to another place where he commits further offences is guilty of something. Aiding and abetting, misprision of a felony, whatever.  Let the lawyers sort that one out.  But said official is guilty of his own offence; not vicariously guilty of the offence perpetrated by the pedophile.

As for mantras, and beside the point, do you subscribe to the atheist mantra that everything came from nothing?  I find that one pretty hard to swallow. Such a thing would only make sense if seen as an act of some God or other.

Malcolm B. Duncan, is there anything you don't imagine you know more about than anyone else?  Literature, history, psychology, and now medicine. You come across as a legend in your own mind.  You can fool some of the people, laddie…

What does the difference between common law states and statute law states have to do with anything? If you can support what you have been saying, why do you need to resort so much to obfuscation?  I wonder, do judges before whom you argue have to continuously order you to get back to the point?  I repeat, yet again, when and under what circumstances was any transport company prosecuted in a criminal court for a crime carried out by one of its employees?

I'm in trouble so it's back to the pen,

I moved a priest for with boys he'd play
He played again so I moved him away
He played again so I moved him away
He played again so I moved him away
He played again so I moved him away

Read Bill, read:

Workers Comp not being exactly the same thing.

All said, as Scott observes, I am responsible for what the "dickhead" does and it really wouldn't matter what I did to prevent him.

Were I to remove an employee from one part of the business, because of complaints of sexual harrassment, to elswhere in that business and the employee harrased again, I would go down in the ensuing claim. Responsibility.

Father Park

Michael Park

I don't know what you're on about. You advise me to read. I respond: give me something sensible to read. What you have offered is not that.

And I in turn advise you to read. Read what I have written, for a start. Surely you can tell the difference between criminal offences and non-criminal ones?

Don't direct your complaints about how the law works at me. I don't make laws.

Responsibility Bill.

Responsibility Bill, responsibility.  It is who the law finds responsible you pompous prat.

The Christian Brother(s) that moved that predatory arse about are just as RESPONSIBLE. No point in going over it again though - what I and others might have suffered were evidently not criminal  enough for your sensibilities. Perhaps had the mongrel utiised an impersonal pronoun (sic) you'd see it differently?

Bye, bye Bill. Argue vicarious responsibility with a lawyer.

Father Park

Onya Mike!

Time to give  it a rest Bill, old son.

Michael (he will always be Mike the fisho, drinker of blacks, consumer of shanks, to me) makes a very salient point..

Barristerial Infallibility

I only got a decile 4 in Advanced Latin at the School Certificate (i.e. 60% of those candidates successfully sitting the exam in 1972 beat me) I have indifferent French, I have no Greek and only about four words in Arabic.  Of the last, my favourite, is Imshee (spelling is probably wrong) which I understand means "fuck off".  It worked quite well with a camel driver in Cairo.

I have always been incapable of understanding the principle behind simple harmonic motion.

I am ever prepared to admit my shortcomings and acknowledge any mistakes I make, Mr Avent.  However, as I said to one of my lecturers when discussing my results in a real property exam where I got 50% (no wasted effort as one of my friends used to say) when quizzed in the following terms: "But Mr Duncan, I don't understand.  Most of your paper was appalling but in this answer on easements you only wrote 12 lines and you got a credit."  "When I know what I'm talking about," I replied, "I know what I'm talking about."

Go and look the cases up for yourself.  There are thousands of them.  Google Workcover - they prosecute hundreds of companies for vicarious liability (including industrial accidents occasioning death) every year before the Chief Industrial Magistrate.

Judges are generally grateful for my assistance and succinctness.  In fact they have said as much.  One judgment congratulated me for a "creative and intelligent solution."  One can only be as good as one's facts but one does the best one can.  The difference between common law states and code states is quite astonishing but I would not expect a layman to appreciate the difference and if you want it explained, I'm happy to do so at my usual hourly rate of $400 plus GST.  Get your solicitor to send me a brief.

Now, Imshee.

Ian M (Ed.): Malcolm, I draw your attention to the Webdiary Code of Ethics. Item (e) says: No matter what exam result a Webdiarist may have got in Real Property, he/she shall suffer all other Webdiarists gladly; regardless of  their alleged shortcomings, and now matter how perceived. On this occasion, only wit has saved you from the fate of DNP.

Good morning, your infallible majesty

Malcolm B Duncan, I am no more interested in your shortcomings than I am in your schooldays. I will however wait without bated breath for you to acknowledge that you have any such thing as a shortcoming. But I suspect that mere contemplation of such an admission would cause you too much pain, so I'm not going to ask for that.

As for mistakes you may make from time to time, according to my observations your policy is steadfast refusal to recognise at any price any such thing. Examples abound. One I remember was your insistence that your construct "honing in" on something or other was correct, and when it was proven logically wrong your resort to plan B; namely that by some arcane logic all your own your misuse of the term was deliberate and far too sophisticated for the average person to understand. As I said before, you can fool some of the people some of the time…

That exchange was, from my point of view, no more than lighthearted banter. Always happy to engage in that. You, on the other hand, defaulted as you usually do when anyone challenges your understanding of anything, to hostile defensiveness.

On vicarious responsibility for criminal offences, are you saying now that the Chief Industrial Magistrate presides over a criminal court? Or is that just another attempt at obfuscation? Ignoramus me, I would have thought he was presiding over an industrial court…

Almost beyond bearing

I am abjured not to be abusive Bill Avent, so I shall not say what I would, in accordance with Rule (d), to your face.

I claim no majesty or infallibility and I'm not much interested in whether I interest you but I am here to try and explain things as simply as I can.

Let me have another go.  The Chief Industrial Magistrate sits in the Local Court in NSW and regularly administers a set of laws which enable him to impose criminal penalties on persons who come before him.  That is one of the things that enlivens criminal jurisdiction.  Strictly speaking, in Australia, as far as I am aware, but certainly in NSW, there is no such thing as a criminal court.  All Courts in NSW (with the possible exception of the Dust Diseases Tribunal) have criminal divisions, the power to impose criminal sanctions, and the power to deal with contempt in the face of the Court whether summarily or by reference to the Attorney or DPP.

It is manifestly clear from what you say in confusing civil and criminal matters that you do not have the least idea of what you are talking about.  It is further clear that you don't like me and I don't like you.  Hope I get to test that proposition by cross-examining you one day.  Ask Dr Reynolds what that is like.  Now, as they say in Arabic ...

Arabic terms of immaturity aside

Malcolm, laddie, rest assured, I don't dislike you at all. I must admit to finding you a bit unattractively up yourself sometimes, but I'm not going to waste emotions on you. And how you feel about me, well, that's another thing I couldn't care less about.

You reckon there's no such thing as a criminal court in Australia? The following is from the Australian Institute of Criminology:

There is a hierarchy of criminal courts at both the Federal and state/territory levels.

Magistrates' court: a lower court that deals with relatively minor or summary criminal offences. Under some circumstances, these courts may also deal with less serious indictable offences. They are also responsible for conducting preliminary (committal) hearings for indictable offences.

Intermediate (district/county) court: A higher court that, together with the supreme court, deals with the more serious crimes. Intermediate courts hear the majority of cases involving indictable crimes.

Supreme court: the highest level of court within a state or territory. Supreme courts deal with the most serious crimes.

Tasmania, the Northern Territory and the Australian Capital Territory do not have intermediate courts; all relevant charges are dealt with their respective supreme courts. In states with both supreme and intermediate courts, a large majority of charges are decided at the intermediate court level.

All state, territory and Commonwealth courts handle a number of matters that appear in the court system for the first time. Almost all criminal charges are lodged for the first time at the magistrates' court level.

Cross examine that.

Invitation accepted

Dr Reynolds has had a fair stab at it but one of the things I find amazing about people like you Bill Avent is your not knowing when you don't know or you are out of your depth.   You rely on things posted on the internet.

The material you have posted purportedly coming from the  Australian Institute of Criminology (and it may well do so) is, as a matter both of fact and law, incorrect in at least one aspect.

There is a vast body of law which is authority for the proposition that a committal hearing is an administrative process.   It has nothing to do with a criminal Court even though it is conducted by a Magistrate operating under the Criminal Procedure Act.    It makes no criminal decision and, even when a Magistrate sitting on a committal makes a decision to commit, the case is often dropped (we call it a nolle prosequi or "no-bill").  Equally, if that administrative process results in a determination that the defendant has no case to answer, an ex officio indictment can still be presented either by the Attorney or the DPP.

Similarly, under the current law in NSW, a Magistrate sitting as a coroner is required to terminate the inquest at the point where he thinks criminal charges may be capable of being presented against any person of interest in the inquest.   That is not a criminal proceeding either.

And answer came there none. 


Bill Avent, I think Malcolm B Duncan has gone to lunch so I shall, with some hesitation, try to answer your question. I won't, however, attempt to cross-examine you - I have no pretentions whatsoever to being an advocate.

It seems to me that you may have been misled by the Australian Institute of Criminology, which has in my opinion indulged in rather loose language.

The courts that they mention are not called criminal courts, and they are not exclusively criminal courts. They have both criminal and civil jurisdictions.


Commonsense language

Fiona, are courts dealing with criminal matters not called criminal courts?

How many times have we heard of the Court of Criminal Appeals? I reckon you're biting a big chew when you challenge the wording used by the Australian Instute of Criminology. 

More than I can chew?

Bill Avent: “Fiona, are courts dealing with criminal matters not called criminal courts? How many times have we heard of the Court of Criminal Appeals?”

No Bill, in Australia courts dealing with criminal matters are not usually called criminal courts. As to how many times we have heard of the Court of Criminal Appeals, we hear of it whenever that particular court is the subject of discussion.

Thus, in New South Wales, the Local Court is always called the Local Court, the District Court is always called the District Court, the Land and Environment Court is always called the Land and Environment Court, and the Supreme Court is always called the Supreme Court – with one "exception", which I shall now try to explain.

In New South Wales (and I think it’s the same in the other seven jurisdictions in Australia, but I haven’t checked) the Supreme Court operates on two levels – divisional and appellate.

The divisional level deals with both civil and criminal matters. The Court usually deals with matters involving the most serious criminal cases (e.g., murder) and civil matters concerning land ownership or cases involving large sums of money.

The appellate level has two manifestations: the Court of Appeal, and the Court of Criminal Appeal. In New South Wales, the Court of Appeal hears civil appeals from decisions of:

  • the District Court
  • the Land and Environment Court
  • the Compensation Court
  • some tribunals
  • single judges of the Supreme Court.

The Court of Criminal Appeal only hears appeals arising from criminal trials.

The Australian Institute of Criminology may well have been trying to use “commonsense language” but in my opinion they were not using language accurately. Thus, I reckon that I am not “biting a big chew” when I challenge that language use.

Courts and lawyers

Bill, there are however 'criminal lawyers'!

The interpretation of that I leave to you!

Fiona, you missed the coroners court  --- I think!

(I'm doped to the gills in an attempt to keep some lung function!)

Fiona: I'm trying to keep my mind off such places, Peter. Get better quickly.

Crims, lawyers and courts

Peter, I suppose when criminal lawyers are engaged in civil litigation they are not acting as criminal lawyers. So it is with courts. Try telling that to Malcolm or Fiona, though, and you will feel like you are beating your head against a brick wall.

Criminals get caught, they go to court. Which court? Criminal court. Where they are represented by a criminal lawyer.

Fiona Reynolds: "As to how many times we have heard of the Court of Criminal Appeals, we hear of it whenever that particular court is the subject of discussion."

Exactly. A court dealing with criminal matters is a criminal court. It's good enough for the Australian Institute of Criminology, and it's good enough for me. Pedantry is one thing. Microscopic nit-pickery is quite another.

Wrong again!

 Bill, and here I always thought that they became 'criminal lawyers’ when they got caught with their hands in the cooky jar!

Too accustomed to it to be amazed

Peter, you can't really expect those legal geniuses to make sense when they name themselves. I understand some criminal lawyers do get caught with their hands in the cookie jar from time to time. And then, when they do, and make their titles make sense, they get kicked out of the club and aren't allowed to call themselves criminal lawyers any more. I guess they're still allowed to call themselves criminals…

Richard: Your 10th for today, Bill.

Bloody subs

Gee, Ian, there's something wrong with my computer or something.  Item (e) seems to be missing from the link.   What is abusive about "irritant"?  I've always believed that people are entitled to their oninions no matter how much I disagree with them but only if they don't express them.

Glad to see you are feeling better and still have your sense of humour. 

Reply to Malcolm (Without Prejudice)

Malcolm: Noted.


Ian, remind me sometime to tell you the law relating to "without prejudice" communications.

You  might note that as well.


Malcolm, on the subject of the above would you like to give us a bit of a run down on it? Others take note; this is one area of the NSW law where conviction is all but guaranteed. Correct me if I'm wrong but as my memory serves me, a better than 90% chance. No other area comes remotely close and as an employer I'm always nervous because I'm personally liable. Some of the judgements I've read about are stupefying; in one case a company was fined $50,000 or so after one of its employees, specifically hired for his expertise in unloading dodgily packed containers of Chinese scaffolding, was killed when the heap collapsed. Just why the authorities didn't intervene and send it back is another matter.

I'm not blaming the judges (don't know enough about it to apportion blame), but the the way the law is written is Draconian in the extreme (like many others). What wonderful times we live in, that much law, you couldn't learn it in a lifetime.

Poor old Napolean, whose ambition it was that every Frenchman could carry the law of France in their back pocket.


Where do I start, Scott Dunmore?  I've only done one big one.  My advice is: don't look at the photographs - at least that's what I told SWMBO as I was reading the brief at home.

That case involved a very experienced engineer (something like 45 years in the trade) doing very specialised drilling work.  They were loading something onto a truck, they thought they'd done things properly but someone hadn't accounted for the torque on a piece of kit (yes Bill Avent, I'm now an expert on physics and torque and motoring - apart from simple harmonic motion) and it crushed a cherished employee's skull.  Photos were bad enough.

It is always difficult to deal with a man in his sixties who starts crying in conference.  He faced gaol.  I managed to keep him out (I do a stunning plea - yes Bill Avent, I am also an expert in self-aggrandisement with just cause) but he got a whopping fine plus costs which effectively ruined him and sent him bankrupt.  I have never seen anyone get off by being acquitted although I have been reasonably successful in minimising the damage, if you can call being financially ruined but not going to gaol a minimisation.

You have my number.

The proverbial

Scott: "Planet Sane? What galaxy is that in?"

A galaxy far, far away...

Vicarious liability for criminal acts. What rubbish.

Malcolm B Duncan: "Try the Crimes Act."

Where in the Crimes Act is there demonstrated some instance of "Vicarious liability for criminal acts..."?

It's incredible that anyone could imagine such a thing.

Michael Park: "It is all about responsibility. A bishop, Education dept official or other who moves a paedophile priest or teacher on to greener pastures - knowing that he has molested and sexually abused victims - is as guilty as the individual so moved."

Are you speaking of the "bishop, Education dept official or other" acting as an accessory to the commission of a crime?

In which case, that would be a matter for the police, and not the Pope in Rome.

Are you saying Pope Benedict or John Paul II were accessories to child abuse and rape?

Nobody on Planet Sane has ever suggested such a thing as far as I'm aware, certainly not the police, judiciary or anyone else I'm aware of.

Perhaps Hetty Johnson, or other intellectual leading light of the Great Witch Hunt of the Antipodes, but nobody above a grade school education.

Or are you speaking of "duty of care", in which case you are talking about torts, and which has nothing to do with criminal acts.

Any lawyers in the house?

Scott: Planet Sane? What galaxy is that in?

Vicarious liability for criminal acts? Now, there's an idea.

Malcolm B Duncan: "Vicarious liability for criminal acts is a concept that has long been known to the law."

Criminal liability? Really?

I'm familiar with the concept that a 'Tort of the servant is a tort of the master', but Torts law creates, and provides remedies for, civil wrongs that do not arise out of contractual duties but arise from 'negligence'.

But that's nothing to do with the criminal code.

Could someone here, perhaps Mr Duncan, appraise us of any reference in law principle that one can be  vicariously liabile for criminal acts"?

You know? Like, you join the Taliban? Go to Afghanistan with them? And then they give assistance to Osama bin Laden? And then later you end up in Gitmo?

Would you be personally subject to this radical new concept "Vicarious liability for criminal acts" as outlined by my learned  colleague Mr Duncan?

Can you show us where that principle is enshrined in precedent or statute? I'm amazed.

Not enshrined, just enacted

Try the Workcover Legislation son.

Try the transport legislation.  Try the Crimes Act.

That should save the necessity for you to pull your head in. 

Talking through headwear

Is Eliot Ramsey talking through his hat, Malcolm B Duncan, or are you talking through one of those silly little wiglet things of yours?

I am disinclined to debate the ins and outs of that ass the law with a lawyer. But then again, few lawyers I have known spout so much asinine nonsense on matters general as you sometimes do. So here goes:

Eliot is talking about vicarious liability for criminal acts. You speak of the responsibility of a transport company for the negligent or criminal acts of its employees. Can you provide an example of a case where a transport company has ever been held responsible for a criminal act by one of its employees? Please note: an act of a criminal nature, not of negligence. A real one would be best, but in the absence of that a hypothetical one would do.

As I understand it, for an act to be held to be a criminal one both actus reus and mens rea need to be demonstrated to be present. On the face of it, this would seem to me to preclude the notion of vicarious liability for criminal acts. If you want to argue otherwise, you need to present an argument. Lofty dismissal of Eliot's contention with an attempt to confuse criminality with mere negligence won't do.

To disagree with Eliot in respect to the Catholic Church, more than mere negligence seems to have been present. It is not hard to see that the act of taking a pedophile priest from a place where he is known to be a pedophile and transferring him to a place where his reputation is not known, and where he will have access to children, is a criminal act. Tantamount, should any further offence be committed by that priest, to aiding and abetting in that offence.

Scott: I suspect you're on a hiding to nothing here Bill; there is such a thing as Criminal negligence.


I sometimes wonder why I bother with some of you people.  Ramsey and Avent are the prime offenders of course but we get a bit of flak from a few of the girls from time to time.

Now you [well I do actually want this published because it is in the public interest to do so - fill in your own epithet but starting with an f might help] cop this: try Gilles Criminal Law (2nd Ed)  Law Book Co Sydney 1990 - just pulled it off the shelf at random - Chapter 5 Vicarious Liability.  The learned author says:

Broadly speaking, vicarious liability in the criminal law may be described as the imposition of criminal liability upon a person in the capacity of a principal offender, by virtue of the commission of an offence or (at least) an element in an offence by another person.  This type of liability is usually imposed in situations where D [the Defendant], broadly speaking, is acting through this other person (as for example, in the employer-employee situation).

On the mens rea point, there is now a plethora of legislation that provides for strict liability (traffic legislation is a classic example) where you can be as innocent of criminal intent as you like but still be convicted.  They are known sometimes in the trade as "status" offences.

Now, could you people who don't have a schmick of an idea what you are talking about please stop misleading other people generally and stop wasting my time having to correct your inaccurate ramblings?  I have a community to run.

Let 'em go

As in cricket: let the silly ones go.

Father Park

Fiona: Old Argus is still on your case, Father. I will send you an email about your little problem shortly.

So with a bit of luck

So, with a bit of luck MBD had all this been explained to me in my pre teens I might have been able take the gun to the boss of the debt collector company instead of that idiot they sent to hassle my poor old mum. Vicarious liability - I like that and I reckon the behaviour of those sort of companies bordered on the criminal in the methods used by their agents to intimidate hard up farmers and their wives - usually the wives since the men were always down the paddock somewhere.  But never mind. At 12 I understood enough to know me mum's castle was her castle and I applied my limited knowledge of the meaning of trespass to good effect , though I suspect it wasn't that that sent a one nasty individual off the premises at a run.

Confess I found it hard to understand why a company who made a certain farm implement was held liable on negligence grounds for serious injury to a bloke who was using the thing, (forget what it was). He ignored the safety instructions. As I recall the company copped a heavy damages payout. Made a lot of us farmers nervous given how some employees will not adhere to safety instructions when using farm machinery no matter how often you draw it to their attention. In fact it makes us very reluctant to employ anyone at all if one can do the job oneself. As for asking an employee to climb a ladder these days, forget it.  

Nice to see you sort the boys out on legal issues. As for this girl. I do it my way.

Been there, done that

I've had hidings before, Scott. And from time to time, plenty of nothing. Feel free to give me one or the other, in the present context, lumping criminal negligence in with just plain criminal.

Hidings to nothing

Bill, it's not my argument, I'm just observing. All I'm doing is letting you know that taking on experts in their field is fraught unless you are totally sure of your ground.

Even then it can be a pointless exercise, my solicitor has welshed for five years on a dinner for two. I'll shame him into it eventually but why should I have to? Maybe I'll take it off his next bill.

Pomposity never in hiding

Scott, I think my moo-cows are more outstanding in their field than our "qualified lierary critic" will ever be in his. Never yet saw one of them go out of its way to make a fool of itself.

Note: any lawyer's argument must fail, for another's to win, however totally sure each may be of his ground. Like would-be politicians, they had better not fear a bit of a hiding now and then. Some even seem to court it. Both in and out of court.

Does anyone of sound mind know what:

…vicarious liability in the criminal law may be described as the imposition of criminal liability upon a person in the capacity of a principal offender, by virtue of the commission of an offence or (at least) an element in an offence by another person…

is supposed to mean? Is the person vicariously liable also the principle offender? That's what the words seem to say. Do these donut dunkers have their own private meaning for the word "vicarious"?

I prefer the Wiki definition:

Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator.

At least it manges to make sense. And I will no doubt die of climate change related injuries before I learn when and under what circumstances any transport company was prosecuted in a criminal court for a crime carried out by one of its employees. Still sounds like bullshit to me.

After the Avent or just post facto?

You don't understand the language, Bill Avent.  Nor are you supposed to.  That is why we have lawyers.  We are taught lawyer-speak and we maintain it so the thick amongst us do not understand it.  We have terms like estoppel and cestui que trust that you wouldn't have a clue about.  Bit similar to the terms used by medicos in referring to anatomy (something else I understand a bit about having a Dad who, amongst other things, is an anatomist).  They can sometimes be described as "terms of art". 

You prefer the Wiki definition do you?  Well the problem with that is you are confusing the application of the doctrine of vicarious liability in its civil and criminal manifestations.  It's a bit like the law of assault really.  Assault is both a tort (a civil wrong) and a crime (under the Crimes Act).  NSW is not a code state (more lawyer-speak that you wouldn't understand).  In plain language, it means that the Criminal Law in NSW is not designed to displace the common law relating to criminal offences (unlike, e.g. Queensland).  So much more economical in time, intellect and words just to say "code state" isn't it?  And it only takes about five years to get a law degree.

It would be rather nice in my view for people like you to butt out rather than contributing more greenhouse gas to a lost cause.

Well good morning judge, yes it's me again...

Still sounds like bullshit to me

It most likely won't to a judge though Bill. I'd love not ever to be liable for the injury an employee may cause himself being a dickhead - and indirect contravention of training and well posted "rules" - resulting in my paying same compensation. Workers Comp not being exactly the same thing.

Again, a bishop, cardinal, Christian Brother in a position of authority who moves one of theirs - in the full knowledge that this bloke is committing grave sexual offences - "under the radar" somewhere else where the behaviour continues is as responsible for those crimes then committed. I find Eliot Ramsey's sterling defence of the Catholic Church on this point odd considering a strong former predilection to dismiss theology and creationism. Then again I also do not swallow the creationist mantra. Perhaps it is only from a strictly legal, secularist viewpoint.

Father Park

Criminally responsible!

Angela Ryan: "And why the Roman Catholic Church has not been held criminally responsible for exactly that action with their paedophile priests is what I what to know!"

You see? In Angela's mind, the Catholic Church is "criminally responsible" for the conduct of its members.

Criminally responsible!

An absurd claim the likes of which would never be made against any other organisation.

In effect, she alleges a global conspiracy by the hierarchy and membership of the Catholic Church to further organised pederasty, or conceal it.

As far as I am aware, no legal authority or investigative body of any repute has ever made such a wild allegation.

Yet Angela makes such a claim as if it were a commonplace.

The orifice

Is it your hat, the back of your head or somewhere else you are talking out of, Eliot Ramsey?  Vicarious liability for criminal acts is a concept that has long been known to the law.  A simple example is the responsibility of a transport company for the negligent or criminal acts of its employees.  Companies are frequently fined for such things and companies are even less corporeal than the Roman Catholic Church.  So, perhaps it would be better if you dropped your blinkered devotion to a religion and came and joined us over here in the real world - secular Australia.


Perhaps that's what's the syndrome - that manifests itself as a blinkered and dogged refusal to to see - is, Malcolm? .

It is all about responsibility. A bishop, Education dept official or other who moves a paedophile priest or teacher on to greener pastures - knowing that he has molested and sexually abused victims - is as guilty as the individual so moved. A simple concept Eliot Ramsey, as Malcolm says

Father Park

Fiona: You into the black beer again, Father?

Scott: Makes sense to me but I'm into white wine.

where is the overturning of the money tables

And a little vignette from the recent past, about 2003, is this interview about Bayer Rat of the Week, for – hard to believe – allegedly, after the US government forced it to withdraw HIV contaminated Factor V111 (a treatment for haemophiliacs, usually children), then selling the known contaminated therapy to France, Spain and Japan, perhaps even with the full knowledge of US departments involved in its export. Apparently the French officials involved have been prosecuted and gaoled but the Bayer executives? In the US??

Ah, "they hate us because of who we are ", not because of what we do.

Manipulating anti HIV programs in Africa, selling serum known to be HIV contaminated, testing drugs in Africa not allowed to be used in USA (Constant Gardner), changing regimes to suit their big business mates' needs( Perkins’ Confessions of an Economic Hitman,)......and how easy the Churches allow themselves to jog along.

Where is the overturning of the money tables and flogging of the bastards eh?

No, not if the banking bonanza brings such profits as Ambrosia did, and if infecting larger numbers means that African nations are held to ransom for the HIV drugs that keep their working age people on their feet. Greater profits for all, and always the chance to pull the plug on those nations refusing the pillaging of their minerals, like Zimbabwe. There are always so many dimensions to international actions, and how frequently we only get the simplified five minute commercial break version.


Absurd double standard for Catholics

Richard: "Can't see why, though, you don't consider it appropriate for the Pope to have apologised for the mistreatment of members of his (and his predecessors') congregation by his ministers."

Because he didn't do it, and rape and sexual molestation are neither intrinsically nor necessarily Catholic predispositions.

Take the couple whose daughters suffered so dreadfully at the hands of the Melbourne priest. Who could possibly think such a thing wasn't terrible, and the Pope himself has said as much over and over and over.

And the fact remains, the priest was charged under the law, and dealt with in the courts.

I know that will never compensate the family for what happened to the two girls, but nothing ever will.

Either way, it's a matter for legal authorities here in Australia. Not the Pope in Rome (it sounds so bizarre, almost ludicrous when you say it that way).

If the local postman break into a house and raped two girls, that would be a dreadful thing. But should future Postmasters General be compelled to personally apologise for it?

It's a bizarre standard to apply to Catholics and one which seems to be imposed on them exclusively.

Should the Minister for Education - and future Ministers for Education - apologise if a teacher molests a student? Maybe someone in Parliament now 'apologising' for the conduct of a teacher in another state, under another Minister, but in the same political party? Just as logical - or illogical.

Or should the courts deal with it?

These are separate considerations from notions of duty of care, and the Church should exercise all due care for those going through its processes. Just like any other large organisation. The Australian Netball Association, for example, which is the largest women's organisation in Australia.

But if a girl gets hit on by her netball coach, should the head of the world netball association or whatever, be held accountable and be made to apologise?

Or should we just call the police?

If you could show that Pell or whatever thwarted a police inquiry, was negligent or whatever, then that's a matter for the civil authorities, and it could be also a basis for people forming a personal judgment about Pell, the Sydney archdiocese, or even the Church as a whole.

But compel the Pope to apologise for things that didn't even happen on his watch? Ten thousand miles away? By someone he never met? And who went to gaol for it anyway?

It's another aspect of the pedophile hysteria sweeping this nation. And now bordering on collective slander. Again.

educate yourself Eliot about the full extent of the cover up

You, Eliot, are woefully ignorant of the full extent of the cover up that went on.

If the coaching fraternity of club was well aware that their coach had raped children and every time a complaint was made just moved that coach to another club where he wasn’t known then YES indeed that organisation is criminally responsible!

And why the Roman Catholic Church has not been held criminally responsible for exactly that action with their paedophile priests is what I what to know!

It was this cover up by senior Roman Catholic executive clergy and the deliberate lying about the accusations, moving the offending paedophile priests to new dioceses to continue with their activities as indeed they did, that is the FULL and DISGUSTING legacy of those in power at the time. Read about the Maitland diocese if you want just one local NSW example, but it was not just here in Australia but a world phenomenon. It is why the Chicago diocese has been sued to bankruptcy and held to account.

Ratzinger was one of the most powerful policy movers behind JP2 and as chief "Inquisitor" was most likely well aware of all accusations and directed polices regarding  them.

The archbishop who covered up the Chicago abuse and enabled the priests involved to be moved around was recalled to the Vatican when the full evil that went on there became public knowledge and the court cases were revealing so much. The outrage in Chicago was palpable as people found out what was going on with full knowledge for years and years!

This archbishop, the cover up organiser of Chicago, who allowed paedophile perpetrators to get new meat, was not recalled for rebuke or disrobing!! No! He was recalled and given a special position and the huge honour of later that year reading JP2's eulogy to the world on behalf of the Vatican. Paedophile victims were astounded!

The cover up was sanctioned and promoted at the top and rewarded. The Mother Church was to be "protected" at the expense of the children and families of the church.

That is why the current pope, who was the very one with greatest access to such information at the time, has the weight of thousands of cruelly damaged children upon his disgusting hypocritical shoulders.

If he had done something, just as we are taught, then there is no difficulty in moving on as that is the Christian way, The Way, Mea Culpa, cleansing.

And it is wrong to think that it is all out so far. I know one chap who, in a moment of weakness, talked of how he had had to keep quiet about his suffering at the hands of the priest because he was afraid it would kill his deeply trusting and religious mother. These are the kinds of horrific betrayals of trust that are impossible to bear sometimes.

Educate yourself, Eliot. You’re a clever guy with a library of information at your fingertips, so educate yourself about the full extent of the cover up and the years and years of child abuse.

Fair and unbiased comment

Here is a very good article by former Vatican canon lawyer Tom Doyle (not sure if he is still a priest) In it he both praises and criticizes Pope Benedict:

"It is well worth noting that Pope Benedict said more and did more relative to the worldwide plague of clergy sexual abuse in five days than his predecessor did in two decades. John Paul II was aware in detail of the sex abuse issue from the time it emerged from hiding in late 1984. For reasons unknown he waited until 1993 before he publicly acknowledged it and between then and his death in 2005 he spoke publicly to the issue eleven times. Over the years individual victims and victims’ groups had repeatedly asked to be received in audience by the pope. Not only were none of these requests honored but they were not even acknowledged. For all practical purposes, the victims of the worst scandal in church’s history since the dreadful days of the Spanish Inquisition were non-persons as far as the Vatican was concerned. Not so with Benedict XVI."

Further on Doyle says:

"Pope Benedict surely disappointed some for not taking any of the decisive actions that many see as essential such as canonical prosecution of bishops accused of sexual abuse and removal of bishops found to be complicit in the enabling cover-up and related negligence. On the other hand he managed to make clergy sexual abuse the central issue of his visit. Whatever he said at the United Nations will soon be forgotten and the worlds’ leaders will continue on as they had before with little visible impact from having heard the pope’s words. What he said and did with regard to the abuse problem will not fade away and will indeed have on-going impact."

And this:

"Many people have developed a realistic and well founded cynicism about anything said or done by Catholic Church office holders in response to the sexual abuse issue. This will not be turned around in a week. The pope’s words, symbolic gestures and visit with victims cannot possibly undue the decades of damage done and mistrust sown by the dark legacy of betrayal. "

One of the most even-handed articles about clergy sex abuse that I have encountered. Well worth the read.

Tom Doyle finishes by saying:

"The pope’s words and actions fell short of the expectations of many whose lives have been devastated by clerics and the Church. This disappointment is understandable given the legacy of non-response to this problem by a Church in denial. For those of us who are pragmatically optimistic as we continue to forge a path to justice and compassion, there are significant elements of hope embedded in his words and especially in his visit with survivors. The scourge of sexual devastation by the representatives of the Church has woven itself into the Church’s culture for centuries. More has been accomplished to eradicate it in the past two decades than in the previous thousand years. If anything, the pope’s words in April 2008 have reassured me that the efforts of victims, their supporters, the secular media, the attorneys, the sympathetic lay people and clerics and even those few supportive bishops have made a difference."

Lawyer Tom Doyle?

No Kathy, Al Pacino had sacked him by then...or he was dead. Don't remember. Doh! That was Tom Hagen!

No Fiona, but I was on my way out for shanks and black. Pressed for posting time and confused a couple of things...

Love to know why the formatting tools no longer appear on my pc. They do elsewhere...

Father Park

To be fair, Angela Ryan

It was not the sort of cover-up that was associated only with the Roman Catholic Church.  It happened in most churches, schools and youth and sporting organisations.  People just got moved.  Entirely wrong of course, but it happened.  We should all apologise.  I often feel like apologising for being human because of the excesses of the Nazis and Stalin.  No harm in apologising.

You mentioned Maitland.  SWMBO was teaching in Newcastle and living in Lorne when that was going on.  There are often many reasons that people do not speak out.  I know secrets that I can never tell because they are covered by legal professional privilege or I have given solemn undertakings that I shall not reveal what I know.  Do I have an obligation to breach my ethical duty merely because someone thinks he is guilty of a crime?  I think not.  How do I reconcile that?  Just because he thinks he's guilty of a crime doesn't mean he actually is.  People have the most astonishing ways of managing to delude themselves.  Back to the traffic campaign.

Pope should apologise for tourist's death

Bill Avent said:

"The man found dead in gaol was not a pilgrim, but a tourist who had an altercation with a pilgrim."

Very good point, Bill. In that case, the Pope should apologise for it.

Richard:  Ok Eliot, you've made your point.  Can't see why, though, you don't consider it appropriate for the Pope to have apologised for the mistreatment of members of his (and his predecessors') congregation by his ministers.

horses for courses and only in the members stand

Look Richard, not sure about you not  thinking  it is appropriate for the pope to apologise for mistreatment by his member (what is its predecessor?), or what happens in any congregation.

And how few jokes we heard, just Claude's dad's usual unlimited wit but no Chaser, and  just the usual Eliot gaffes. Ah sigh.

Here is a late night (warning for those who take offence , shut your eyes now) story.

My horse racing mate and I were latte-ing last Sunday and he asked me “do you know why it had to be at Randwick Race Course?" Wow, the inside tip, I thought, and it was indeed. "No, why?" "Apparently it is the only course IN THE WORLD where you can ride a three year old." It actually took me ages to realise what he said. Imagine that at Randwick, why DO the other courses have such limits – and does it apply to members?

And I was surprised the popemobile didn’t get a speeding ticket down there through the crowd.

But at least Rat looked healthier than when I last saw him – must have done him good that first bit of Rand R. Horse for courses.


I won't be holding my breath

Eliot, in the interests of accuracy, you originally said that no protester was arrested, but that a pilgrim was.

Angela Ryan then opined that it it had been a Muslim or Aboriginal youth, he would be in jail, and injured.

You then came back with: "…as predicted, none of the protesters were arrested - but a pilgrim was, of course!" You said he was found dead in gaol this morning.

But it turns out that it was not a pilgrim who was found dead in gaol, but a tourist who had an altercation with a pilgrim. You have been wrong about the whole thing from the start.

I don't much care who the Pope should apologise to. As the head of a church, I suppose he should apologise on behalf of that church for atrocities perpetrated by its officials, to the people they have offended against. Apologies ring pretty hollow, though, in light of the ridiculous statements continuing to be made by other officials of the church. What the Pope should be doing is getting his house in order. Not much sign of that happening, though.

What you should be doing is apologising for trying to mislead people as to who was arrested and found dead in gaol this morning.

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