Speaking ill of the dead

I’ve never subscribed to the rule of ettiquette that claims one should  not speak or write ill of the newly deceased.   Ignoring it might cause a degree of distress to grieving close  friends and family if they happen to hear or read disparaging comments, and that might well militate against speaking out  in some cases.   Minor pecadilloes from long ago are best buried along with the dead.   However, setting the record straight will usually trump those interests where the deceased has been prominent in public life and alleged misdeeds were themselves publicly significant, and even more so where they’re reasonably contemporary.   You can’t defame the dead, but you can certainly express truths that should have been  spoken long ago but for the stifling effects of defamation law in this country.

Maybe the ethical balance between truth and privacy has been tipped slightly by the new national defamation laws, which now provide a defence of truth without any additional need to establish a “public benefit” or “public interest” component in the subject matter of the publication.   That makes it marginally  safer to speak the truth about someone during their lifetime.   However, even that overdue liberalisation of archaic defamation laws would not have availed anyone who wanted to speak the truth about a powerful, well-connected lawyer like John Marsden, the high profile founder of one of Sydney’s largest ambulance-chasing law firms, while he was still alive.

Paul Sheehan says just about everything  I think needs to be spoken about Marsden in today’s SMH, although I found his apparent closing inference about Justice Michael Kirby to be rather  odious.    Kirby’s activities in public life are a world away from the sleaze that characterised Marsden.   He doesn’t deserve to be slyly disparaged by association.   Nevertheless,  I hope  Kirby resists the temptation to deliver a eulogy at this week’s memorial service.   Marsden doesn’t merit such public expressions of esteem  anyway.

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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Geoff Honnor
Geoff Honnor
15 years ago

I very much agree with the incontrovertible fact that Marsden was a deeply flawed character and not a very nice person.

I do however take issue with Sheehan’s central thesis: Marsden’s sexuality was the ultimate fount of his bad behaviour. It wasn’t. he was a rude, belligerent, ethically-challenged lawyer with a penchant for self-aggrandising publicity.

It seems to me that the only reason that Kirby features in Sheehan’s piece is to validate Sheehan’s theory about the general inappropriateness of poofters in conjunction with the legal profession.

His crack about the Lavender Mafia is laughable. No gay barrister or solicitor I know in Sydney was under any illusion about John Marsden. The idea that he was somehow protected by powerful poofs is completely derisory.

vest
15 years ago

He’s dead so go ahead, vilify him, could stick a pin in to be certain.

Joshua Gans
Joshua Gans(@joshua-gans)
15 years ago

I must admit I don’t know the exact definition of rough trade, but Sheahan does seem to harp on this point unnecessarily. Do people who like rough trade have a higher than average propensity to befriend criminals and use them to protect their interests? I’d say that what it takes is a degree of ruthlessness and manipulative skill that’s equally to be found in heterosexuals and, for that matter, gays in monogamous relationships.

Jason Soon
Jason Soon
15 years ago

What I found odious was this bit:
“Marsden won his defamation case because, although he liked rough trade, and although he was reckless, he could deny he was a pederast, which is criminal offence. ”

So presumably he picked up some gay hookers who were younger than him, just as some ‘respectable’ straight men go to brothels and hire 18 year old escorts. And because they didn’t go below the age of consent, they can’t be called pedophiles (notice that Sheehan himself writes further below how Marsden boasted of picking up gay ‘men’). So what of it? What’s the point of saying Marsden could have been a pederast if he’d done something else? And Marsden could’ve been Canadian if he was born in Canada.

I’ve never had a high opinion of Sheehan’s sneering, mean spirited columns and this doesn’t raise it one bit.

Patrick
Patrick
15 years ago

De mortuis nil nisi verum, de vivis nil nisi bonum would be a good start – except that there seem to be so many ‘vivis’ who deserve to have all sorts of bad things said about them…

Paul Watson
15 years ago

Ken,

An interesting post, if only because until one reads your two (to date) supplementary “comments”, it makes little objective sense.

Re the post itself, call me a jaundiced Melburnian, but to damn just one particular Sydney lawyer on the simple basis of his “sleaze”

Patrick
Patrick
15 years ago

I’ll happily make such an accusation against any man who has been to a brothel, at all, and with abandon against anyone who has done so without at least some concern for the werewithal of the prostitute, male or female.

If they are only there because they are forced to be (and I don’t count economic considerations ‘forcing’, except obviously bond-slavery) then frankly a good many of the legal elements of rape are made out, to my mind at least.

All the elements of personal moral culpability are made out, to my mind.

Ken Parish
Ken Parish
15 years ago

Paul

I don’t know of many (indeed any) other practising lawyers of whatever gender or sexuality who have employed convicted rapist/murderers to intimidate potential witneses against them. I certainly don’t know of any who have enjoyed flattering eulogies from prominent politicians etc despite such conduct.

I certainly wouldn’t deny that there are quite a few lawyers who are every bit as rapacious and self-promoting as Marsden was. But I don’t know of any others who boast openly about their sexual promiscuity and multiple illicit drug use, and yet continue to be feted by assorted senior politicians, judges etc. Marsden was just a shonky lawyer who parlayed his contacts for all they were worth (and then some), but whom karma eventually caught up with.

Jason Soon
Jason Soon
15 years ago

Patrick
prostitution is legal in Australia. Brothels are licensed. One is even listed in the stock exchange.

Paul Watson
15 years ago

“Prostitution is legal in Australia”, etc.

Jason, a person would have to be pretty dumb to not know that. But even with licenses/probity-checks/whatever, organised crime currently dominates the brothel industry – and a person would have to be pretty naive to not acknowledge *that*.

You’re also way out of date on the ASX-listed brothel (I assume you are referring to The Daily Planet Ltd, which listed in 2003, and only ever owned brothel real estate, never the business also).

Anyway, listed Daily Planet got out of even the real estate side of the brothel business in 2004, after less than a year; see: http://www.theage.com.au/articles/2004/04/21/1082530231373.html?from=storyrhs While the story doesn’t say this explicitly, my strong suspicion is that, given a listed company’s extra constraints on going with the criminal “flow”, The Daily Planet found itself at an acute competitive disadvantage in its industry.

Most brothels are, at least on the surface, mom’n’pop-owned operations, which makes it all the stranger, of course, that a modern, large corporate wouldn’t have an actual competitive *advantage*. This disconnect can only be explained by the mom’n’pop-owners being flimsy fronts for organised crime.

Patrick
Patrick
15 years ago

Jason’s basic point is fair, Marsden couldn’t have put it better himself.

Of course, In the second part I used the word ‘moral’, not ‘legal’, but no matter.

Ken Parish
Ken Parish
15 years ago

Paul

Do you have any basis (other than “a person would have to be pretty dumb”) for your assertion that organised crime dominates the brothel industry? There’s certainly lots of research and intelligence indicating that organised crime syndicates control the international trafficking of women for prostitution, and there have been well publicised specific examples of brothel owners (official or off-the-record) having organised crime connections. But that’s a long way from justifying a general conclusion that the various state licensing regimes are completely ineffective at excluding organised crime from controlling brothels.

I’m not arguing that you’re necessarily wrong. I just don’t have any personal knowledge of it and I’m interested in what evidence you’re relying on for such a confident assertion. It’s certainly an area that was traditionally controlled by organised crime back when prostitution was illegal, so I suppose it’s not unlikely that they would attempt to maintain their dominance given that the industry is a nice little earner. But do you have any basis beyond that sort of commonsense suspicion/intuition?

Paul Watson
15 years ago

Ken,

No, I don’t have a “dossier”, or similar. In making the above claims, I rely on media reports of what could (and usually is) dismissed as a “few bad apples”, combined with the following two observations.

First, the mom’n’pop-owner phenomenon. In a world where even milk bars have gone “corporate”, this is significant. (Note: brothel licensing regimes generally impose per-premises ownership limits, but I’m sure that (say) Macquarie Bank’s lawyers could draft a way around these, so as to consolidate the brothel industry into a (legal) oligopoly of large corporates (that is to say, the norm in any other, legal Australian industry).)

Second, brothel licensing regimes are weird (at least if one regards keeping organised crime out of the industry as a priority). On one hand, there is a detached, paper-shuffling bureaucracy (that issues the license, and that’s pretty much it), and at the other extreme, physical regulation of brothels is a matter of local council planning and enforcement – as in the same people who tell you which colours you can use to paint your house.

Dare I say it, but I reckon that a crack vice-squad, one that gets its hands (if not other body parts also) dirty, would be the only effective way of keeping the brothel industry “clean”.

derrida derider
derrida derider
15 years ago

Well, I met John Marsden once, thirty-odd years ago when he was a suburban criminal lawyer in Campbelltown. I don’t know what he was like in his private life then, and what he was like in either his professional or private life later. But I can say he was much respected locally then by all but the local coppers – a corrupt and brutal lot (this was Sydney during the Askin years, remember) – for his tireless and very brave pro-bono efforts for his
clients.

Geoff Honnor
Geoff Honnor
15 years ago

There’s a interesting piece on Marsden in the Sydney Star Observer (gay Sydney’s “journal of record) this morning.

http://www.ssonet.com.au/display.asp?ArticleID=5381

Bill Posters
Bill Posters
15 years ago

Never mind speaking ill of the dead; this is Paul “magic water” Sheehan we’re talking about here, right?

observa
observa
15 years ago

Sheehan finishes with “And when his memorial service is conducted this week, he has requested that one of the eulogies be delivered by his friend and confidant, Justice Michael Kirby of the High Court of Australia.”

Presumably Sheehan is pretty comfortable that Kirby was a friend and confidant of Marsden and also he that he will give the eulogy. If that’s the case then clearly Kirby and Marsden are either peas in a pod, or Kirby is simply a shocking judge of character. Any conclusion I might have missed, given the general agreement about Marsden’s character here?

harry clarke
15 years ago

Marsden didn’t seem to keep good company. But a strange time for this sort of attack. I don’t like this tendency of journos to sum up a person’s life in this way – a lot of the claims here are very emotive and sensational and will leave a nasty memory even if they are inaccurate.

Bill Posters
Bill Posters
15 years ago

“Any conclusion I might have missed, given the general agreement about Marsden’s character here?”

A better question: any you haven’t?