Justinian’s brain spasm

Sometimes the generally sensible SMH legal affairs pundit Richard “Justinian” Ackland has a brain spasm. Today’s column is an example. He argues that it’s unfair for the NSW Director of Public Prosecutions to use relatively new statutory powers to seize or freeze “chequebook journalism” funds offered to criminals (and alleged criminals) for interviews.

The immediate impetus for Ackland’s outburst was an apparent offer of $100,000 by the Seven network Today Tonight program for an interview with security guard Karen Brown, who is accused of gunning down a bloke after he bashed her with brass knuckles and robbed her of a payroll.

Ackland’s principal arguments are:

  • The bizarre bleeding heart proposition that criminals already suffer enough in the criminal justice system without being deprived of the otherwise legal fruits of their crimes.
  • Any chequebook journalism proceeds are probably going to be absorbed by lawyers’ fees anyway, and might sometimes save taxpayers the cost of funding the criminal’s defence on legal aid.


Ackland’s first argument really speaks for itself. But the second one merits comment. It might sometimes be the case that chequebook journalism proceeds will be partly used to pay legal fees, but in many if not most cases criminals cash in after the court process is complete rather than before. Thus, the interview payment is a windfall that goes straight in the criminal’s pocket.

Given that compensation schemes for crime victims are capped at $25,000 in the Northern Territory and some other jurisdictions, there’s something vaguely obscene about Ackland arguing that offenders are being unfairly treated by being deprived of four times that amount for inflicting the injury! Victims don’t seem to loom large for Ackland.

Even in Karen Brown’s case, the proposition that Seven’s $100,000 will all end up in the lawyers’ pockets is dubious. Without canvassing in an improper way the merits of a sub judice case, the evidence seems fairly straightforward. It’s not likely to be a long trial, and Brown won’t need batteries of high-powered QCs to defend her. Unless there are appellate proceedings, her legal costs are unlikely to be as much as $100,000. When you consider that we might conceivably be dealing with a case of hot-blooded deadly revenge rather than self-defence, the deterrent and exemplary principle of preventing the alleged criminal from profiting by her alleged crime seems a sound one.

In fact, I’d like to see the scheme extended further. I’d be more than happy to see retrospective legislation allowing the confiscation of all money ever earned by Chopper Read from cashing in on his life of crime as a murderous standover man. None of the arguments of principle against retrospectivity have much force in this area. (Link is to a page in the excellent and fascinating Melbourne Crime website).

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Aidan
Aidan
2022 years ago

Ken,

Care to cast your legal eye over this:

http://www.smh.com.au/articles/2004/08/06/1091732063216.html

Indefinite incarceration not against the constitution? Well it damn well should be.

Look forward to hearing a “distillation” of the judgements if you can be bothered.

Cheers

snuh
snuh
2022 years ago

if the perps were able to keep the money, would it not then be open [indeed, worthwhile] for the victim [or here, family of the victim] to seek damages in tort? i mean, if a victim did think chequebook journalism of this sort was “vaguely obscene”, is this not an obvious way for them to do something about it.

snuh
snuh
2022 years ago

should be a question mark at the end of the previous post.

Ken Parish
Ken Parish
2022 years ago

Snuh

In the Karen Brown case, I guess any surviving spouse could in theory sue her (the primary victim can’t because he’s dead), but there would be a number of practical problems:

(1) The damages claimable would be fairly limited – loss of consortium etc. They can’t claim loss of income or the other big heads of damage, because they’re personal to the primary victim. In any event, if he was a professional armed robber, you can’t claim illegitimate income in any event!! So we’re probably talking about (say) $20-30,000 max (or thereabouts) in damages for a spouse and maybe slightly more for dependent kids.

(2) That might then be reduced severely by contributory negligence. The victim was after all killed in the course of a pretty savage armed robbery, so a court would probably reduce damages by a factor of at least 50% in apportioning responsibility. Note, however, that the tort personal injury law isn’t really my area, and I’m not sure whether contributory negligence applies to those heads of damage for a surviving spouse or child claim (it was their dad and not them who was contributorily negligent).

If we look at the more general case (i.e. not just Karen Brown), sometimes offenders “cash in” and do interviews years after the events occurred, sometimes even when they’re released from prison (although I’m mostly thinking here of ones who were found years after conviction to be innocent e.g. Mickelbergs, Lindy Chamberlain etc). The point is that there may be limitation problems. The usual limitation period for commencing action is either 3 years or 6 years after the cause of action (i.e. the original crime) arose, and it would often be too late by the time the offender got the money that made them worth suing.

Lastly, just because an offender is paid a large-ish sum by a media organisation, it doesn’t mean he’ll still have it by the time you get a judgment (2 or 3 years later). Much of it probably would have been absorbed in legal costs (a prolonged civil action being much more expensive than a relatively short criminal trial). Even if not, the offender might well have squandered the money on good times, or hidden it successfully. Remember you’re not suing an honest bloke here! You might be able to get a Mareva injunction to restrain disposal of assets, but only if you have some tangible evidence that it’s occurring or about to occur.

All in all, if a potential client came to me for advice about whether to sue an otherwise impecunious criminal who’d just been paid $100,000 by Today Tonight, I’d give them the above advice. That would include stressing that, if they lost, or if they won but failed to recover the judgment sum for one of the above reasons, they’d still have to pay my fees!!! So there would be a serious risk they’d end up down the tube by $50,000 or so instead of richer. Sometimes lawyers are prepared to do personal injury cases on a “no win-no fee” basis, but generally only where the risk equation looks good to the lawyer as well (because he or she is punting their fees on the outcome). I reckon the risk equation here is bad and I wouldn’t punt my fees, and I suspect most if not all lawyers would see it the same way. Would you decide to sue given the above advice?

PS I’d be interested in the asssessments of other lawyers, given that I’m not a PI expert.

snuh
snuh
2022 years ago

yeah, well, if i was your client, i’d probably accept your advice. i’m just trying to work out a solution to this problem that i like.

it seems to me that, if you were karen brown, you would want to be doing the bleary-eyed-oh-my-god-what-have-i-done type interview, in order to get some sympathy with the public. and if you were today-tonight, you would be prepared pay money in order to conduct this interview, because, for whatever reason, a large number of people would make an effort to watch it.

as things stand now, the proceeds of the crime go to either the network [in the event that networks are forbidden from bidding for the story] or the state [in the event of after-the-bidding confiscation]. while not as obscene as letting the offender keep the money, i can’t say i’m comfortable with either of these outcomes.

True RWDB
True RWDB
2022 years ago

“Without canvassing in an improper way the merits of a sub judice case, the evidence seems fairly straightforward.”

This is bloody bullshit, Ken. Forget the first 11 words here, you are making a judgement and your whole tone goes to your belief that the assaulter is the victim here and Karen Brown ought to be found guilty.

I know there appears no dispute that she fired a shot that killed a man who had just finished bashing her to within an inch of her life. It seemed to me at the time to be a pretty complex case dealing with her state of mind in no small degree. Oh well, you and Cowdery seem to have made up your minds, so let’s just have the obligatory trial and hang her quick, like, eh? I suppose some silly lawyer will defend her on a pro bono just to feel warm and fuzzy. It’s not like she’ll need a Tom Hughes or anything with such an open and shut case is it really? Heaven help us if the public starts empathasing with such rabble. That’d turn us all into vigilantes and where’d law and order be then, eh?

Ken Parish
Ken Parish
2022 years ago

True RWDB

I was wondering when someone would pick me up on that point. But in fact I haven’t assumed Karen Brown is guilty, nor used the qualifiers “alleged” or “might conceivably be” ironically. As you observe though, the facts (at least as reported) don’t seem to admit of the possibility of a defence of self-defence. The evidence might eventually sustain some sort of defence based on diminished responsibility or something else related to her mental state at the time. I simply can’t say. Her defence lawyer will certainly be able to find a psychiatrist who’ll say something to that effect, and a good lawyer may well be able to get a jury in a state of mind to acquit on the basis of it, seeing Karen as the real victim whose actions are entirely understandable and shouldn’t be punished. One part of me even agrees with that. But the other part tells me that vigilante justice isn’t something to be eoncouraged.

If you detected a certain cynical scepticism about Ms Brown on my part, you’d be right in one sense. But I wasn’t there, and I don’t know what her state of mind was. I certainly know from graphic personal experience that exposure to the shock and trauma of a violent crime (in Karen Brown’s case being bashed and robbed) does very strange things to one’s mind, perceptions and reactions. Thus my scepticism is tentative rather than immoveable.

I share your apparently low opinion of Nicholas Cowdery, but on this occasion he’s got it right. When the evidence doesn’t sustain self-defence, the DPP should lay the appropriate charge (whether manslaughter or murder) and let the jury decide. I’m happy for it do so, but in the meantime I’m not happy that an alleged murderer should be able to profit financially by her crimes. If she’s acquitted, that’s another thing entirely.