The ‘but for video’ moniker refers to the fact that if not for video, none of these claims would have been taken seriously. Few cops will admit to behaving badly, and fewer courts will take an ordinary citizen’s word over that of a cop.

The grainy footage and bad lighting make it even more like a B-grade horror movie.

You almost never hear of this happening in Australia. Oh sure, there were those detectives a few years back who bashed the guy in the interrogation room and a bunch of the usual civil rights crowd bleated about it. But that was a pretty huge deal, and part of a much broader corruption issue. It could plausibly be put down to ‘bad eggs’, not something most ordinary citizens would ever have to deal with.

And that’s what makes this story so fascinating. A pair of coppers viciously beat the crap out of some dickheads who decided to do burnouts outside the Mansfield police station (pro tip: this is a poor life decision). Because they are clearly the sharpest tools of the Mansfield constabulary, they did it in view of the camera on one of the patrol cars. The two officers got criminal convictions, and their careers largely ruined. VicPol may yet be sued civilly. All in all, the way things should be.

Yet for most people who get bashed by the cops, there is no video. There is no corroborating evidence. So their complaints go unheeded or, more often, just unmade.

But for video.

We like bicycles! And mindlessly demanding harsher sentences.

Unfortunately, they also seem to be members of the Laura Norder crowd.

The other week, the Court of Appeal overturned a total effective 13 year jail sentence given to a driver who ploughed into two cyclists while off his face: Shields v The Queen [2011] VSCA 386.

Now Shields doesn’t deserve much sympathy. He had a blood alcohol level way above 0.2, he was driving an unregistered vehicle, and he has priors for drunken driving and speeding. His dickhead behaviour killed a man, and seriously injured another. These blokes were thrown over 50 metres from the impact. Let’s get this straight: I have little sympathy for Shields.

What bothers me, though, is the way BV reacted:

Victoria’s Court of Appeal has overturned a harsh jail term which had set a welcome benchmark for the punishment of drivers who violated the lives and rights of vulnerable bike riders.

[...]

The decision, while legally defensible, perpetuates a long standing blind spot of police agencies and legal systems whereby little or no consideration is given to the vulnerability of the person on a bike.

The idea that society would expect a great degree of care and responsibility from drivers where bike riders are sharing the road, is still not on the radar of many in the judiciary.

Much is made of the principle of equality under the law, but there is not much that is equal when a speeding car crashes into a human on a bike.

Due respect, BV, but this is an appalling load of bollocks.

1. The principle of equality under the law has exactly borry-all to do with anything in this case. Even if it did, your last sentence makes about as much sense as a troll’s comment on a youtube video of Rebecca Black.

2. The case hadn’t set a ‘welcome benchmark’ for drivers who kill or injure cyclists. It was just another sentence handed down toa  dickhead who drank too much, got behind the wheel, and killed people. As I understand it, the vulnerability of the cyclists was not a factor in the original sentencing. Therefore it can’t have been a factor on appeal – and, indeed, the Court doesn’t consider it at all.

3. If you’re arguing that consideration should be given to that vulnerability, then go for it. Argue that it should be considered an aggravating factor in sentencing, for example (it shouldn’t but that’s another arugment). But don’t pretend that this decision has anything to do with it.

4. Even you admit that the decision is ‘legally defensible’. You know why it’s legally defensible? Because it’s the right decision. There is nothing in the VSCA judgment that is the least bit controversial. It is a stock standard application of sentencing principles. Just because it doesn’t satisfy your lust for vengeance, doesn’t make it wrong.

5. As I’ve argued before, harsh sentences do little to deter bad behaviour in any case. Maybe if the police pursued every single collision with every single cyclist and the OPP sought harsh sentences for every single one of them, it might make a difference. But we’ve been trying that with illicit drugs for decades, and look how well that’s worked out.

6. The dude is still going to jail for at least 10 years. 10 years, BV. Think about how old you (or your kids) will be in 2021. Yeah. Shields will have been in jail that entire time. That’s not a soft sentence for something people, sadly, do every single bloody day.

This sort of garbage is what I expect from the Herald Sun. Not from a high quality organisation that I pay membership fees to. Please don’t do it again.

Law? Crime? Aren't they the same thing?

John Silvester has a job to do.

As the Age‘s award-winning crime reporter, he regularly reports on the comings, goings and shootings of Melbourne’s underworld. And, to be fair, he’s very good at it. Somehow he manages to report some of the shadiest dealings in our fair city with the same ease that society columnists report celebrities’ attire. His columns are worth reading for entertainment value, if nothing else.

Unfortunately, he doesn’t really get the justice system.

And so over the weekend he went on a specious rant about what an easy deal criminals get and how they play the system and how terrible it all is. He was prompted by Sean Sonnet’s appeal and subsequent guilty plea.

For those who don’t know the story, Sonnet is a gentleman with some pretty dubious friends. He apparently used to be one of Carl William’s hitmen, and was arrested and charged over an attempted hit outside Brighton cemetery that was thwarted by police. A key witness gave evidence at the committal, but died of a drug overdose before trial. Justice King allowed the transcript of his evidence to be used in the trial proper. Sonnet’s lawyers appealed and won, and Sonnet then pleaded guilty. Silvester explains why:

So why appeal only to then plead guilty? Because when Sean is sentenced, Justice Lasry must ignore the inadmissible Thorneycroft claims and will give the offender a substantial discount in return for the guilty plea.

Yeah. That’s what happens when the prosecution introduces inadmissible evidence and the judge allows it. Maybe – just maybe – the fault doesn’t lie with Sonnet & his defence lawyers, but with the people who screwed up in the first place?

The appeal/guilty plea somersault is a brilliant legal strategy and we hope Sonnet has ”moved on” and will finally fly straight when he returns to civilised society.

This is not the first time Sonnet has played legal rope-a-dope. He once successfully appealed against a serious conviction, only to turn around and plead guilty to lesser offences, winning a Boxing Day sale-type sentence discount.

Oh! He’s successfully appealed before! Clearly the legal system is a failure.

I’m not sure what the details are of the previous case Silvester refers to, but the Court of Appeals doesn’t allow notorious criminals’ appeals unless there’s a pretty good reason. But that, of course, would get in the way of Silvester’s story.

It’s shame that Silvester sometimes uses his considerable writing talents to regurgitate Herald Scum-style soft on crime talking points. Because he is nothing if not entertaining.

Much is written about sentencing, with judges often accused of simply tickling offenders under the chin with a feather before taking their pet gerbils for a brisk lunchtime walk.

This is clearly false on two grounds:

a) Not all judges own gerbils.

b) If they did their associates would walk them.

In this particular column it is even more of a shame, because in the last section he makes some quite sensible comments about the problems brought about by the outrageous delays in Victoria’s courts.

C’mon, John. You can do better than this. Lift your game.

It’s like watching this clip of the Kings of Leon from 2004. Before they released Only By The Night (I refuse to acknowledge the existence of Come Around Sundown). This is why I still love them, despite their transgressions:

————-

First, people in the so-called ‘blawgosphere’ – that is, people (mainly in the US) who blog about law – have got their knickers in a knot, yet again, about some police behaviour. This time, it’s a campus policeman – Lt John Pike, apparently – pepper spraying a bunch of kneeling protesters who are already in custody:

Brian Tannebaum takes a breather from berating internet marketers to observe:

College students, sitting in a line, in custody, being pepper sprayed in an image that reminds those of us who have seen them, of the videos of mass executions

Hyperbolic, sure. But after watching the video you can’t help but think he’s got a point. It’s chilling, and sickening. Even if the protesters needed to be moved (which is a whole other issue – in the states they have a constitutional right to free assembly for chrissake), Lt Pike’s actions are blatantly disproportionate. He makes the Occupy Melbourne brouhaha look like a picnic. (Of course, as Jeremy notes, increasing the range of non-lethal but severely painful options may in itself encourage police violence.)

————-

On a happier note, Oregon’s governor John Kitzhaber has announced a moratorium on all executions:

The change of heart comes as a surprise for a governor who twice before — in his first term as governor — allowed executions to go forward. Despite his personal opposition to the death penalty, Kitzhaber said he was upholding the will of the people in allowing the 1996 execution of Douglas Franklin Wright and the 1997 execution of Harry Charles Moore.

“I have regretted those choices ever since,” he said in a prepared statement. ”Both because of my own deep personal convictions about capital punishment and also because in practice, Oregon has an expensive and unworkable system that fails to meet basic standards of justice.”

[...]

“I am convinced we can find a better solution that keeps society safe, supports the victims of crime and their families and reflects Oregon values,” he wrote. “I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am Governor.”

We can only hope that full abolition will soon follow.

————-

On another happy note, here’s a rather lovely decision from the 7th Circuit in Aleman v Village of Hanover Park et al. Not only does it seem to be largely correct,* but it is written in a charming, clear and downright conversational style:

Carlson, who played the central role in screwing up the investigation (quite possibly deliberately, as we’re about to see) …  asked Danielle whether she had ever struck Joshua and she said no, although she acknowledged that he’d had a fever in the days leading up to his collapse. This should have been a warning … Nevertheless Carlson decided he would investigate Danielle Schrik no further. From his subsequent conduct in attempting to protect her from questioning by Booker and in holding her hand and sobbing with her at Joshua’s funeral, a reasonable jury might infer that he was sexually attracted to her and for that reason wanted to keep the investigation focused on Aleman.

[...]
Instead of shutting up after Aleman sought his lawyer’s aid, the officers, exploiting his distraught state, badgered him to waive his Miranda rights…

But it’s not just colloquial language that makes this judgment so readable. It is actually clear, concise and logical. Attributes, of course, that most judges strenuously avoid:

If a question has only two answers—A and B—and you tell the respondent that the answer is not A, and he has no basis for doubting you, then he is compelled by logic to “confess” that the answer is B. That was the vise the police placed Aleman in. They told him the only possible cause of Joshua’s injuries was that he’d been shaken right be fore he collapsed; not being an expert in shaken baby syndrome, Aleman could not deny the officers’ false representation of medical opinion. And since he was the only person to have shaken Joshua immediately before Joshua’s collapse, it was a logical necessity that he had been responsible for the child’s death. Q.E.D. A confession so induced is worthless as evidence, and as a premise for an arrest.

If only Australian judges would take leaf out of the 7th Circuit’s book.

————-

…or, for that matter, the book belonging to Justice Blackmon of the Superior Court of Caroll County, Georgia:

Sometimes, only the courts of law stand to protect the taxpayer. Somewhere, someone has to stand up. Well, sometimes is now, and the place is the Great State of Georgia. The defendant’s motion to dismiss is hereby denied.

[...]

(This court cannot imagine why U. S. Bank will not make known to Mr. Phillips, a taxpayer, how his numbers put him outside the federal guidelines to receive a loan modification. Taking $20 Billion of taxpayer money was no problem for U. S. Bank. A cynical judge might believe that this entire motion to dismiss is a desperate attempt to avoid the discovery period, where U. S. Bank would have to tell Mr. Phillips how his financial situation did not qualify him for a modification. Or, perhaps he was qualified, yet didn’t receive the modification, in violation of U. S. Bank’s Service Participation Agreement (SPA). A cynical judge might think that, if the guidelines clearly prevented Mr. Phillips from getting his modification, then U. S. Bank would have trotted out that fact in mathematic equations, pie chart, and bar graphs, all on 8 by 10 glossy photo paper, with circles and arrows and paragraphs on the back explaining each winning number. U. S. Bank’s silence on this issue might heighten the suspicions of such a cynical jurist. I, on the other hand, am sure that nothing of the sort could be true. Maybe U. S. Bank no longer has any of the $20 billion dollars left, and so their lack of written explanation might be attributed to some kind of ink reduction program to save money. I’m sure there is a perfectly reasonable explanation for why the U. S. Bank will not print out the ONE page of figures that show Mr. Phillip’s financials compared to the HAMP guidelines to clear all this up.)

And yes, he gave credit to Arlo Guthrie where it was due.

H/T Scott Greenfield

————-

That’s all for now. And you never know, the next post may even include some original content.

*Not that I have any idea about the law, mind you. It’s just nice to see US judges smacking down egregious cop/prosecutor misconduct for once.

Democracy at work.

What a pack of clowns our city is run by.

The ‘Occupy Wherever’ movement has been camped out at City Square on Swanston St for the past week. They have tents. They have long hair. They run workshops on growing your own food and have been providing food to homeless people. They are, in short, pretty harmless. They’re trying to make a political point,* but as far as I can tell they have been peaceful, respectful and friendly (though obviously I’m on the other side of the world, so could be wrong).

According to the Age, the protesters were defying an order to vacate the square by 9am AEST this morning. I’m not clear who gave the order or on what grounds, but I’m prepared to believe that it was a lawful and legitimate order. Therefore, the protesters should have left. If they chose not to, then they should be prepared to face the consequences. The police would have been entirely justified in arresting anyone defying the order and charging them appropriately.

But what did Bobby Doyle and Teddy Baillieu decide to do? Send in the riot police!

Because charging a peaceful, non-violent protest with shields and batons is a great method of conflict resolution. Because clearly a calmer, more measured approach to removing the protesters and enforcing the order would have been impossible. Because clearly, hospitalising people exercising their democratic rights to free expression and free assembly is appropriate in our society.

Do these people have no other ideas?

UPDATE: Crikey reports that the protesters were presented with an eviction notice yesterday, which was issued under the MCC’s Activities Local Law 2009. So as I said, an entirely proper and legal basis on which to ask them to leave.

Video has also come out of a protester being trampled by a police horse. I actually don’t blame the individual officer here – the horse seemed pretty antsy, and I don’t think the officer intended to trample the protester. But it’s an excellent demonstration of why police horses at protests are a disastrously bad idea. No matter how good a horse-rider you are, a horse has a mind of its own and can get panicky. It is particularly likely to get panicky in stressful situations – like 1000-odd screaming protesters. They have hoofs that can kill you, an awful lot of weight to throw around. Baaaad idea.

*That I don’t necessarily agree with, but that’s not the point.

I know I am!

So Bromberg J made final orders in the Bolt case yesterday (Eatcock v Bolt (No 2) [2011] FCA 1180). The Herald Scum will have to run a corrective notice, the same size as Bolt’s column normally is. They’ll have to do this twice. In principle, this is an excellent idea. Have a notice detailing his errors and the fact that he made shit up would be far more effective than an insincere, court-ordered apology.

The problem is that the corrective notice will be in a format that nobody in their right mind would read.

Crikey has done a mockup here, and unfortunately it’s probably pretty accurate. Court-ordered corrective notices/recalls/apologies/whatever are always in small font, written in legalese, and generally look about as interesting as a carpet-cleaning contract (follow the link to the judgment to see the soporific text). None of Bolt’s readers are likely to read it, let alone consider it or wonder whether their hero might actually be a knob.

A much better idea would be to run a corrective notice along these lines:

ANDREW BOLT MADE SHIT UP

As most readers will know, regular columnist Andrew Bolt was recently sued for articles that appeared in this space. Those articles were factually incorrect. Mr Bolt got in strife not because his opinions were unpopular, but because they were based on lies. More importantly, Mr Bolt should have known that they were lies.

The notice could then go on to correct each claim individually, ideally in 25 words or less.

Of course what we’ve got is lots of references to the Racial Discrimination Act, a bunch of confusing legalese, a reminder of just how stupid s 18 is (ZOMG HURT FEELINGS) and a whole bunch of Bolt’s readers feeling righteously enraged yet again.

I am the next Ratko Mladic! Oh wait, no I'm not

So apparently, preparations for genocide are underway in South Africa. The ANC, in particular their youth wing, are planning to massacre ‘Boer farmers’ and other whites. Any day now, the streets of Cape Town and Joburg will run red with white blood (um). At least, that’s the carefully considered opinion of Genocide Watch.

I had never heard of Genocide Watch until last month. I heard of them courtesy of postings from racist Afrikaners on news websites. A stroll around their website suggests that they are a legitimate organisation. Their board of advisors includes Romeo Dallaire (who was head of UNAMIR in Rwanda) and William Schabas. Most of their assessments seem eminently sensible.

And yet, they regard South Africa as a serious genocide risk. Along with Nigeria, Columbia and the CAR.

The reason appears to be Julius Malema. Malema, for those not familiar with South African politics, is head of the ANC Youth League (he’s 30, but whatever). He’s a man whose foot is permanently stuck in his mouth. He’s been found guilty of hate speech twice now – once for saying that the woman allegedly raped by President Jacob Zuma (yes, the ANC produces some charming leaders) ‘had a nice time’, and once for singing a traditional protest song called ‘Shoot the Boer’. He’s called for the redistribution of white-owned land a la Zimbabwe, wants to nationalise mining, and every now and then embarks on breathtakingly incoherent rants about how whites control everything in South Africa and it’s all dreadful.* There’s no doubt that he’s an ideological successor to the Pan-African Congress, and would really like all whites out of South Africa. Basically, he’s like a South African Pauline Hanson or Nick Griffin.

So, he’s a nasty piece of work. He’s very popular among some sections of society (the same sections who enjoy staging violent riots in Joburg), but most South Africans wish he would quietly disappear from public life. He’s facing disciplinary proceedings at the moment, running the risk of being expelled from the ANC and removed from his position. Currently, though, he’s still the leader of ANCYL. And according to Genocide Watch, that fact is enough to elevate South Africa to ‘Level 6′ – preparation for genocide.

South Africa has its share of problems. The country faces brutal inequality, rampant HIV, and appalling living conditions in many areas. The crime rate in this country (and the resulting culture of constant insecurity) is as notorious as it is terrifying. But to suggest that the ANC is on the verge of systematically exterminating its white population is absurd. It is ridiculous. Frankly, it is stupid.

But it’s not just stupid. It plays into the hands of aggressive white racists who still haven’t absorbed the notion that apartheid was bad. Listening and reading Afrikaner moans, claiming that they are not just the victims of black racism (which no doubt some individuals have been), but that as a group their existence is under threat, is both distasteful and pathetic – not least since whites still control the vast majority of wealth in this country (and there is no suggestion that the ANC plans to do anything to change that). It’s the same ugly and utterly imagined sense of victimhood that exists amongst white racists everywhere – made even more preposterous by the all-too-recent history of apartheid. Watching a group of people who so relentlessly oppressed others on racial grounds (and who continue to materially benefit from that oppression) claim to be the victim is pretty bloody hard to swallow.

[Which is not to say that most Afrikaners share these sentiments, because obviously they don't. Just like most white Australians abhorred the dickheads at Cronulla and most Brits can't stomach the BNP.]

Level 6. One step before TEH BLACKS actually kill all the nice, friendly white folk.

This rating diminishes the credibility of Genocide Watch itself. It makes one wonder if the relatively isolated threats to white South Africans are taken more seriously than the all-too-constant threats to non-whites elsewhere (how else could this place possibly be at level 6?). There are so many actual, real atrocities going on in the world. Singling out South Africa for such headline-grabbing, shrill criticism diminishes Genocide Watch, trivialises actual, real genocide, attributes a totally overstated level of power and support to a bully-boy politician, and needlessly aggravates tensions in a country still grappling with its racial past.

Why a group supposedly dedicated to ending genocide would publish such inflammatory, misguided nonsense is beyond me.

*To be fair, there is some truth in that.

Cat + pigeons = Dimity Dornan

I had never heard of Dr Dimity Dornan before today.

Apparently she heads a Qld group called ‘Hear and Say’, which helps children who are deaf or hearing impaired to hear and speak. She was also named the Telstra Businesswoman of the Year on Tuesday. During her acceptance speech she compared deafness to polio. The word ‘scourge’ was used. Reporters quoted her as saying that deafness was ‘a scourge in our world’.

Various Deaf groups (and I use the capital advisedly) weren’t too pleased about this, and started vocally objecting. According to the Age:

Deaf Victoria manager Melissa Lowrie said ”the deaf community is angry and sees this as a form of cultural assimilation, similarly to what has happened, or attempted to happen, with the indigenous Australians. [Dr] Dornan feels she can ‘cure’ deafness and confine it to history, when she has not considered the whole picture of the culture, the language and the lives of many deaf and hard-of-hearing people.”

Now Hear and Say insists that she never described deafness as a ‘scourge’, but that’s not really the point. What I find interesting is the idea that being Deaf is a cultural identity more than a disability – and should be respected as such. This necessarily implies that trying to cure or eradicate deafness is, indeed, a form of genocide.

On the one hand, I entirely support people’s right to identify as whatever the hell they like. If you want to identify as Christian or Deaf or Pastafarian or Black or Trekkie or Quebecois or Hipster or Jedi or whatever, be my guest. If people want to identify with being deaf, form a Deaf community, choose to refuse or limit treatment for being deaf and so on, be my guest. More importantly, people shouldn’t be discriminated against on the basis of that choice.

But it’s troublesome. How do you balance respecting their choices with treating/alleviating/eradicating deafness? I’m not sure you can. Because if government continues to support research into hearing aids or hearing loss, and actively trying to assist deaf people to hear, then they are necessarily to claims that they are trying to eradicate a group within our community. Because, let’s face it, they are.

More dramatically, what do you do about deaf parents who don’t want their child to get a hearing aid so they can more fully participate in Deaf culture?

Perhaps we could argue that there are actually two separate groups – people who are deaf, who want to be able to hear, and people who are Deaf and do not. The government is only assisting the former, not persecuting the latter.

I’m not sure that’s going to fly. Because providing that assistance reinforces the idea that being hearing is the norm, and that Deaf people are lacking, inferior, and in need of modification.

To those of us who are hearing, this whole thing seems preposterous. I used to live with someone who was completely deaf, and I can’t imagine why anyone would choose it (she certainly wouldn’t have). Why on earth wouldn’t you want to be able to hear? But, as usual, we can’t stand in someone else’s shoes etc. One commenter on the Age piece pointed out that for some Deaf people, the fact of their deafness is a part of their identity – like having blonde hair or dark skin. Another argued that trying to medically eliminate deafness was like trying to medically eliminate homosexuality.

My kneejerk response is to reject these arguments – after all, being deaf is a disability. But that’s really a matter of definition and culture. Why not argue that being short is a disability (they can’t reach things on high shelves, come on!)? Why not argue that being blonde is a disability (you’re the butt of jokes constantly)? After all, each case is really just a difference from what is defined as ‘normal’.

I guess, as usual, for me it comes down to the individual. If an individual wants to identify as Deaf and not be treated, that’s fine. If an individual wants to get a hearing aid or cochlear implant, that’s also fine. Our aim shouldn’t be to ‘eradicate deafness’, but rather to ‘make deafness optional’. Or to ‘enable anyone who wants to, to hear’.

Which I imagine is what Dornan actually meant.

Why make good policy when I can just ask the Herald Sun?

I’ve ranted about the outrageous sentencing survey, and the general stupidity of the Victorian government’s approach to sentencing, several times before.

So here’s Mediawatch doing the same thing, but in a slightly more coherent manner. And with Jonathan Holmes.