While the decision in the matter of Cardinal George Pell concerns criminal issues it does raise questions about the application of the rules of evidence by Australia's courts in all including commercial matters. While commercial disputes are generally civil matters between the parties in commercial matters litigants face the burden of presenting financial information to judges who often seem dismissive of financial detail (see article below for the reasons why Australian courts seem to find dealing with financial data a burden).
In handing down the decision in Cardinal George Pell's appeal against his conviction for crimes relating to child sex abuse Chief Justice Ann Ferguson said that “it is not enough that the jury might have had a doubt, but they must have had a doubt” .
Her Honour said so in explaining why she and the other judge in the three judge panel disagreed with dissenting judge Mark Weinberg's decision where he concluded that the "jury might have had a doubt".
In reading out the court’s conclusions for rejecting the appeal, Chief Justice Anne Ferguson outlined Justice Weinberg’s reasoning.
“In his dissenting judgment, the judge found that at times, the complainant was inclined to embellish aspects of his account,” she told the court this morning. “He concluded that his evidence contained discrepancies, displayed inadequacies so as to cause him to have a doubt as to the applicant’s guilt. “He could not exclude as a reasonable possibility that some of what the complainant said was concocted, particularly in relation to the second incident.”
“Nevertheless, Justice Weinberg stated that in relation to the first incident, if the complainant’s evidence was the only evidence, he might well have found it difficult to say that the jury, acting reasonably, were bound to have a reasonable doubt about the Cardinal’s guilt,” she said. “He went on to note, however, that there was more than just the complainant’s evidence. “In Justice Weinberg’s view, there was significant and in some places impressive evidence suggesting that the complainant’s account was, in a realistic sense, impossible to accept.” “Justice Weinberg stated that in his view, the convictions could not stand,” she said. “Nevertheless, the appeal on the unreasonableness ground has been dismissed because two of us took a different view of the facts.”. In short, its seems as if the CJ is herself aware that one cannot prove with absolute certainty that the jurors must have had a doubt. It will always have to be an objective test, which is what Weinberg set-out. However, because it can only be an only be an objective test, Weinberg could only make a conclusion based on probabilities (hence "may" and not "must").
Nevertheless, the Chief Justice seemed determined, as has become the norm, to formulate if not state legal principle without reference to a factual matrix. Commercial lawyers (one hopes) but certainly litigants in commercial matters can immediately see the problems that can and will arise in taking such an approach.Conversely, Weinberg's reasoning provides a timely if not long overdue reminder of how the facts in any case ought to be assessed.
Westpac's Fed Crt win can also mean a Westpac downgrade: Asian investors would not consider Westpac a safe investment given Perram J's peculiarly Australian judgement
Whilst I accept that the ( National Consumer Credit Protection Act 2009 (Cth)) requires a credit provider to ask the consumer about their financial situation (s 130(1)(b))and, in turn, to ask itself—and to answer—the s 131(2)(a)Questions, I do not accept that this has the further consequence that the credit provider must use the consumer’s declared living expenses in doing so.
While lawyers and judges may be able to perceive the wisdom and clarity of these words, to investors , especially from Asia, the words make little sense for they imply that a lender need not concern itself with what the borrower says about his or her living expenses ie his or her net cashflows.
Additionally, while ASIC's pleadings may well have been deficient (in Perram J's words “this case fails on the facts") the judgement does raise a question about what it is Australian courts consider to be relevant in matters that concern lending, if not net cashflows.
Consequently while Westpac can celebrate its victory over ASIC,investors, especially in Asia, are likely to re-assess Westpac's risk profile and the quality of its loan book,and in particular its consumer loan book. Of primary concern will be the quality of current loans.However there will also be concerns about future loan quality given the likely perception that Perram J's decision provides Westpac justification to grow its loan book unconstrained by considerations of borrowers' capacity to repay. His reference to spending on wagyu and shiraz, presumably in an attempt to quantify cash outflows, is not likely give investors any comfort. Bankers who do not consider what their borrowers say they earn and spend to be relevant, while not uncommon in Asia, are also not considered a safe investment, either in shares or in deposits.
Perram's wagyu and shiraz explanation adds to the evidence that Australian lawyers and judges are not comfortable dealing with commercial matters, and worse, not capable of dealing with the increasingly technical nature of commercial transactions.
by Ganesh Sahathevan Victoria Police Chief Commissioner Graham Ashton. Picture: Getty Images. While Victoria's Police Commissioner Graham Ashton is being praised for putting away George Pell, one wonders what he might have achieved to keep us safe from terrorism had he devoted that same energy to policing jihadis. Ashton is regarded as an expert in terrorism,having spent time working with Indonesian police, and apparently fluent if not proficient in Bahasa Indonesia. Yet, it was the Singaporeans , not Ashton who detained and are keeping us safe from Melbourne resident Zulfikar Shariff:
The failure to act on the threat of Zulfikar Shariff was not the only instance where Ashton failed to act,if not missed crucial and somewhat obvious evidence.There was, not too long ago,the matter of the Bali bombing and Jemaah Islamiah's Hambali (see story below).
These facts concerning Hambali, the Bali bombers, and Jemaah Islamiah have long been a matter of public record.,Victoria Chief Of Police Graham Ashtonwas chief Australian Federal Police investigator of the Bali bombings and ought to know these facts by heart (we do). The evidence of a strong level of passive support,at the grassroots and above is evident:
JI Training in Malaysia
The JI has been conducting training camps in Malaysia since 1990. Up to 1994, the training was focused mainly on maintaining physical fitness like jogging and trekking. From 1995, however, the training camps held in Gunung Pulai and Kulai began to also teach "military" skills (without firearms training). For instance, JI members were taught to make Molotov cocktails, learn knife-throwing skills, topography, jungle survival skills and trekking. In 1997, additional modules like guerrilla warfare, infiltration and ambush were included. Around 2000, reconnaissance and observation courses were conducted in Kota Tinggi; these classes were dubbed "urban warfare". The JI even conducted "Recall and Operation exercises" to ensure that members were operationally ready. 14 (which includes the 3 who went to Afghanistan) of the 21 arrestees participated in such training camps in Malaysia.
According to Malaysian officials, the so-called school of terror,Luqmanul Hakiem school, was established more than a decade (before 2002, that is before 1992 by Abu Bakar Bashir and Hambali.2
Malaysian authorities say Bashir, Hambali, Samudra and Mukhlas had used the Luqmanul Hakiem school in Ulu Tiram, in the southern state of Johor, since 1993.3
According to report in a Government-owned and controlled newspaper in Singapore, Abdullah Sungkar, was also among the founders of the Luqmanul Hakiem school. Mukhlas, brother of the Bali bomber Amrozi (who helped out at the school), helped set it up. Shahril Hat, an ex-engineer arrested by the Malaysian police, was the principal, while his assistant was Noor Din Mohd Top, a fugitive member of the Kumpulan Militan Malaysia (KMM).Three other Bali bombing suspects , Idris, Imam Samudra and Dulmatin - were said to have met and studied at the same school in the early 1990s.A course instructor there was bomb-maker/trainer, Fathur Rohman Al Ghozi - now in custody in the Philippines4.
Nowhere in official AFP and other Australian Government reports have the above AND the their implications and consequences for the future of Australian national security been discussed. It must be assumed that Ashton and others have either suppressed if not are totally ignorant of the facts and/or the issues they raise. That Ashton has ignored all this must break the hearts of those whose lives have been lost or otherwise affected by both Bali bombings.It also discloses an appalling lack of skill and knowledge, evidence most recently in the matter of Zulfikar Shariif.Of course, it is also likely that Ashton is more interested in preserving his "diversity" credentials.
New Federal MP Gladys Liu, the first Chinese-Australian woman to ever sit in the House of Representatives, is facing questions over her links to a secretive Chinese influence network.
The ABC can reveal ties have been discovered between the Liberal member for Chisholm and an organisation linked to Beijing's United Front, which aims to influence politics in foreign countries.
Chinese-born Australian MP Gladys Liu has asked chief spy Duncan Lewis whether ASIO could vet anyone requesting her for face-to-face meetings.
The Liberal MP was also told by ASIO to consider deleting the popular Chinese social media platform WeChat, which was already downloaded on her mobile.
At a special security briefing for new MPs, Ms Liu asked Mr Lewis if there was a process for ASIO to run background checks on people and organisations before she agreed to meetings
This seems to be a classic attempt at sanitization so as to remove suspicion at official levels of those associated with her.
In accordance with Section 29 of the Uniform Law and by virtue of the transitional and savings provisions in the Legal Profession Uniform Admission Rules 32(3)(a) the NSW Legal Profession Admission Board has accredited the following Academic courses
Name of Institution
Course
Legal Profession Admission Board
Diploma in Law
University of Sydney
LLB or JD
University of New South Wales
LLB or JD
Macquarie University
LLB or JD
University of Technology Sydney
LLB or JD
University of Wollongong
LLB
University of New England
LLB or JD
Southern Cross University
LLB
University of Newcastle
LLB or JD
Western Sydney University
LLB
University of Notre Dame
LLB
TOP Education Institute
LLB
Australian Catholic University
LLB
Charles Sturt University
LLB or LLB/BCrimJustice
Top Group has been happy to advertise the fact that the LPAB granted it the "first and only" license to grant law degrees granted a private company.
On 16 March 2018 this writer sent an email to Lewis Patrick the Academic Director of the College of Law Sydney which was critical of the College's teaching and PLT course.It was sent in the course of an investigation commenced by this writer in early 2018 into the College's expansion into Malaysia, while enrolled in the College's PLT course.
Information has been obtained which shows that the email was forwarded to a person or persons in Malaysia on 17 March 2018.
Readers will also be aware that the bizzare blog claim was based on this story , which condemns PM Mahathir more than it does this writer, by RPK and his friend RJ Rithaudeen:
Ganesh was paid USD1 million by a member of team Mahathir to float the idea (READ FULL STORY HERE) while Kit Siang prepped the Red Bean Army (RBA) with one-liners that accused Trump of being anti-Islam.
The College continues to maintain its silence,as have the LPAB and the Department of Justice, all of whom are under the purview of the Attorney General NSW Marl Speakman. Mr Speakman has involved himself in the murky world of Malaysian business and politics,regardless of whether he intended to do so.
The story below was published by the well connected Malaysian investigative new site New Malaysia Times. An investigation by all the relevant Malaysian authorities can be expected, and that will involve a forensic examination of the College Of Law Sydney.
Questions about the College's activities in Malaysia have been put by this writer to the two parties ultimately responsible for regulating the College's activities , the Attorney General NSW Mark Speakman and the Legal Professional Admission Board NSW.
The queries have been met with accusations, by the LPAB and the AG of harassment , threat and intimidation by this writer of the College's management.They have gone so far as to object to the Attorney General Malaysia being informed about the College's activities in Malaysia They have also excluded from the LPAB's 2018 and earlier Annual Reports , which the AG tables in the NSW Parliament complaints against the College and its management; and in particular statements on the official record that they have made in support of the College.
All the above is now likely to be investigated in Malaysia. END
KUALA LUMPUR, July 19 – The Malaysian Bar Council launched its first education venture, a LLM in Malaysian Legal Practise (LLM), last year in collaboration with the College Of Law Australia.
The LLM does not seem to have the approval of Malaysia’s Legal Professional Qualifying Board (LPQB) but the website for the course, which is hosted in Australia, prominently displays the Bar Council crest.
The crest has not been used before to promote a course of study, and queries put to Bar Council President Fareed Gafoor about the use of the crest have been acknowledged but remain unanswered.
NMT has however sighted an email from Fareed dated Friday, May 24, 2019 with regards the LLM and the use of the crest where he states:
Dear Rajen,
We can’t remain silent on this.
Abdul Fareed Bin Abdul Gafoor
Sent from my iPad
It is understood that “Rajen” refers to Rajen Devaraj, Chief Executive Officer of the Bar Council Secretariat in Kuala Lumpur.
The Bar has remained silent for nearly 2 months since.
Key person suddenly retired during extensive query
The College of Law used to be represented in Malaysia by its Director, Peter Tritt. Tritt have been queried extensively about the LLM and about the College’s business in Malaysia but has refused to provide answers. Tritt has been based in Kuala Lumpur since 2017 but announced on Friday that he had “retired” from the College on 30 June 2019.
It is understood that Tritt has forwarded queries sent him to his head office in Sydney and hence it appears that Tritt is under orders from his Chief Executive, Neville Carter, to remain silent.
Questionable advertising claims?
In advertising on the College’s website Carter has claimed that he had established a Professional Legal Training course for Malaysian Law students seeking admission to practise in Malaysia. There seems to be no evidence of such a course, or of any national level training course for the existing Certificate of Legal Practise.
Carter has also claimed to have produced the “inaugural” Handbook in Legal Practise for Malaysia, in the late 80s. A search of the main law libraries in Malaysia directed by the Chief Registrar, Federal Court Malaysia, has not found any such handbook.
He has also claimed to have, during that time to have identified and addressed “gaps” in Malaysian legal practise, but not even those in practice during that period and since have ever heard of him. Nor are senior practitioners aware of “gaps” that needed that to be addressed by external consultants.
As CEO of the College Carter has ultimate responsibility for the College’s Malaysian operation headed by Tritt and variously named the “College Of Law Asia Pacific” and the “College Of Law Asia”. A search by NMT has not revealed any entities registered under those names in Malaysia or in Australia, not even a foreign entities registered to conduct business in Malaysia.
Meanwhile the College, in collaboration with the Bar Council continues to sell its LLM and other courses in Malaysia, deriving a fee income from Malaysian courses.
