Saturday, September 1, 2012

More Great Moments in Court

One for the lawyers . . .

STARKE J: This is an appeal from the Chief Justice, which was argued by this court over nine days, with some occasional assistance from the learned and experienced Counsel who appeared for the parties. The evidence was taken and the matter argued before the Chief Justice in two days. The case involves two questions of no transcendent importance, which are capable of brief statement, and could have been exhaustively argued by the learned Counsel in a few hours.

-Federal Commissioner of Taxation v S Hoffnung & Co Ltd (1928) 42 CLR 39.

A judicial discussion in Australia’s High Court:

CALLINAN J: Mr Jackson, it seems to me that clearly the people at the party, including Ms Joslyn and Mr Berryman, went out with the intention of getting drunk.

MR JACKSON: It would be a big night, your Honour, big night.

CALLINAN J: With the intention of getting drunk and they fulfilled that intention.

MR JACKSON: Well, your Honour, young people sometimes – - -

KIRBY J: I just think “drunk” is a label and I am a little worried about – it is not necessary to put that label. It is just that they were sufficiently affected by alcohol to affect their capacity to drive.


KIRBY J: “A drunk” has all sorts of baggage with it.

HAYNE J: Perhaps “hammered” is the more modern expression, Mr Jackson, or “well and truly hammered”.

MR JACKSON: I am indebted to your Honour.

KIRBY J: I do not know any of these expressions.

McHUGH J: No, no. Justice Hayne must live a very different life to the sort of life we lead.

KIRBY J: I have never heard that word “hammered” before, never. Not before this very minute.

-Joslyn v Berryman S122/2002 [2002] HCATrans 573 (8 November 2002).

Master Funduk:
"McDonald is a decision by the Supreme Court of Alberta, Trial Division, now the Court of Queen's Bench. I am bound by decisions of judges of this Court unless they have been overruled by our Court of Appeal or the Supreme Court of Canada, or unless there are contrary decisions by judges of this court, in which case I would face a dilemma (which I could probably "solve" by ordering a trial of an issue).

Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.

I am bound by decisions of Queen's Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.

I do not overrule decisions of a judge of this Court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.

South Side Woodwork (1979) Ltd. v. R. C. Contracting Ltd. (1989), 95 A.R. 161 (Master Funduk)

In the following Canadian case, A had lent B money, B had agreed to repay that loan and to pay interest.  A and B agreed for the interest to be paid in ways that enabled A to avoid declaring the interest and therefore avoid paying tax thereon.  After payment of interest for a period of time and repayment of part of the principal, B ceased paying.  A sued for the remaining principal and the outstanding interest.  The claim was dismissed on the basis that it was an illegal arrangement and therefore unenforceable.  Some comments by the judge, Quinn J:

"In this action, the parties sought to shed the cloak of criminality that they wore comfortably for more than a decade, only to find the vestments of the virtuous to be ill-fitting."

"With the exception of MacDonald and White, I have approached the credibility of the witnesses with apprehension and caution, for they are people who are well acquainted with falsehoods. After more than ten years of casual criminality, why should I think that they found God in my courtroom?"

"There are numerous other examples of Mary's contradictory and otherwise vague evidence as to the uses made of the lines of credit. I am left with a mash of transactions described by a tainted witness who appeared to be composing her answers on the fly.”

“Is it necessary to unduly anguish over balancing the interests of a collection of criminals?”

"I suspect that, of the many line of credit transactions, some were a smokescreen for instances of personal enrichment: Mary had mastered the methods of financial obfuscation."

And the unexpected (for the litigants) final paragraph of the judgment:

“A copy of these Reasons will be forwarded to the Crown Attorney at St. Catharines for whatever attention they may merit.”

Wojnarowski v Bomar Alarms Ltd 010 ONSC 273 (CanLII)

In 2006, Andrew McCormack, 20, was charged in Montana with burglary, having broken into premises and stolen a case of beer.  He pleaded guilty and, as part of the sentencing process, was asked to fill in a pre-sentence investigation report which included a question “Give your recommendation as to what you think the Court should do in this case.” McCormack cheekily replied “Like the Beetles say, ‘Let It Be.’”

District Court Judge Gregory Todd, 56, a Beatles fan, was not impressed.

He firstly corrected McCormack’s spelling:

“While I will not explore the epistemological or ontological overtones of your response, or even the syntactic of symbolic keys of your allusion, I will say Hey JudeDo You Want to Know a Secret?  The greatest band in rock history spelled their name B-e-a-t-l-e-s.”

He then dealt with the sentencing:

“I interpret the meaning of your response to suggest that there should be no consequences for your actions and I should Let it Be so you can live in Strawberry Fields Forever.  Such reasoning is Here, There and Everywhere. It does not require a Magical Mystery Tour of interpretation to know The Word means leave it alone.  I trust we can all Come Together on that meaning.

If I were to overlook your actions and Let It Be, I would ignore that Day in the Life on April 21, 2006.  Evidently, earlier that night you said to yourself I Feel Fine while drinking beer.  Later, whether you wanted Money or were just trying to Act Naturally you became the Fool on the Hill on North 27th Street. As Mr Moonlight at 1.30am, you did not Think for Yourself but just focused on I, Me, MineBecause you didn't ask for HelpWait for Something else or listen to your conscience saying Honey Don't, the victim later that day was Fixing a Hole in the glass door you broke.

After you stole the 18 pack of Old Milwaukee you decided it was time to Run For Your Life and Carry That Weight.  But when the witness said Baby it's You, the police responded I'll Get You and you had to admit that You Really Got a Hold on Me.  You were not able to Get Back home because of the Chains they put on you.  Although you hoped the police would say I Don't Want to Spoil the Party and We Can Work it Out, you were in Misery when they said you were a Bad Boy. When the police took you to jail, you experienced Something New as they said Hello Goodbye and you became a Nowhere Man.

Later when you thought about what you did you may have said I'll Cry Instead. Now you’re saying Let it Be instead of I'm a Loser.  As a result of your Hard Day's Night you are looking at a Ticket to Ride that Long and Winding Road to Deer Lodge.

Hopefully you can say both now and When I'm 64 that I Should Have Known Better."


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.