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Tenancy Tribunal: Abuse of the Tribunal’s Process for Furtherance of Fraud

About the Article

Editorial Note:

Cogitare Aude was requested to suppress the name of the author of the article published below.  It was disclosed that the author of the article was not a party in the CTTT case – reported in that article.

Cogitare Adude was also informed that a Tribunal Order has been made to protect the identity of the responding party in any published reports of the proceedings.  Accordingly, due care was taken not to publish any personal identifiers of that party.

Cogitare Aude was also informed that the responding party in that dispute was not yet informed about the pending publication of the article.  Cogitare Aude strongly advised the author to get a formal approval for publishing of the works at least from the responding party involved in the proceedings.

Since the case described in the article is an interesting one, in that it relates to what can only be described as profound corruption in the Tribunal’s handling of the case, in consideration to the conduct of the Applicant (as per Applicant’s own evidence delivered, for example:  Applicant’s mp4 file recording her own defecation & her letter of intimidation i.e. evidence of her engagement in malicious, frivolous & vexatious litigation) in that case.  This makes the Toilet Lid case of high public interest, for which reason Cogitare Aude decided to publish the article.

For fairness in journalism Cogitare Aude did approach the Applicant in the CTTT proceedings in question for her comment on accuracy of the facts covered in the article.

Consequently, the Applicant was provided with due opportunity to address any issues that may have been perceived by her as incorrect, and was requested to provide evidence in respect of those issues of contention to secure necessary corrections and to assist fair reporting.

For the purpose of fair reporting of Tribunal proceedings Cogitare Aude was provided apart from the article itself also with large amount of supporting materials which appeared to have been submitted to the Tribunal as evidence.

Upon review of the supplied material Cogitare Aude noticed that majority of the content of the article supplied for publishing is copied and pasted directly from the Tribunal’s Submissions of the parties as well as relevant Tribunal materials including evidence tendered.

Consequent to this and also considering the purpose of the article to report the author’s views and perceptions of corruption in the Tenancy Tribunal Cogitare Aude, did not find it necessary to contact the Tribunal for comment.

The article was finally published as supplied (with minor corrections) on 08/09/2013 at 6:46PM after no response from the Applicant in the proceedings was provided.

Consequently, the views expressed in the article displayed on the Cogitare Aude pages or related posts, are not those of Cogitare Aude, but those of the original author(s) of the works supplied and/or displayed.

All the images and relevant personal information were provided by the author and appeared to have been obtained from public sources on the internet and from the Tribunal evidence files supplied.

Acknowledgement of Internet Sources publicly available around the time of publishing:

Facebook: https://www.facebook.com/mary.spierswilliams

http://au.linkedin.com/pub/mary-spiers-williams/23/1a/405

http://www.meetup.com/members/15930831/

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Mary Spiers Williams

http://anu.academia.edu/maryspierswilliams

http://anulaw.anu.edu.au/

ANU Australian National University Mary Spiers Williamsand

What should you give your PhD supervisor for Christmas?

Cogitare Aude noticed that some of the sites are no longer operative and/or the Applicant’s personal information from the relevant sites has been removed.   Cogitare Aude however received, together with the article, the original pdf & images downloads of the sites while they still contained the personal information.

Film Strip GlossyA - MSW

Cogitare Aude has sent the following email on 02/09/13 to mary.spiers@anu.edu.au:

Dear Ms Williams

 Cogitare Aude was recently approached by an author of an article with a Title: “Tenancy Tribunal: Abuse of the Tribunal’s Process for Furtherance of Fraud: The Toilet Lid Case” which we are attaching for your comment. 

We understand that the author is not a party in the dispute and that the responding party in the dispute may not have yet been informed about the pending publication of the article. 

Since our aim is to report corruption, but at the same time wish to report fairly, we wish to provide you with due opportunity to review the article for correctness of facts. 

Kindly provide supporting evidence on any issues of contention (preferably as an email attachment in pdf format) to assist us with necessary corrections. 

We will only alter facts which are supported by evidence. 

We will also endeavour to correctly report (on your express request) any relevant views you may wish to share on our platform. 

The deadline for your comment is COB 04/09/2013.

If we do not receive your response by that time, we will assume you agree with the correctness of the author’s facts and will go ahead with publishing of the article as is. 

Regards

Cogitare Aude”

No response was achieved.

_______________________________________________________

The Toilet Lid Case:  Author’s Thoughts & Opinion

This Post relates to the “Corruption in Tribunals” page.

Facts pertaining to the Toilet Lid Case are in the “CTTT External Complaint” displayed on the “Corruption in Tribunals” page.

Who is Mary?

In a nutshell, Mary or Mary Spiers Williams (with full name:  Mary Anne Elizabeth Jane Spiers Williams) is a malicious, disrespectful and dishonest person who lies to people, to Court or Tribunal, and cheats (instead of supports) the very system which she is a citizen of.  In 2015, Mary was rewarded for her dishonesty and disrespect of the legal system by being appointed as a lecturer in law at the Australian National University, and teaches criminal law, evidence and ethics of which the latter two are simply not in her dictionary.

Mary Spiers Williams misrepresented her self (in 2011) as being a criminal lawyer providing pro bono legal services.  However, subsequent investigation revealed that she is not registered as a lawyer and did not practice law for many years.

She also represented her self being an university academic who among else also lectured evidence law,  as well as PhD candidate on an APA scholarship who was also awarded with a generous research grant.  She revealed in the Tribunal’s proceedings that she also has 3 times the teaching load of a full-time lecturer.  She is also the Applicant in what is here referred to as the “Toilet Lid Case“.

While Mary represents her self as an university academic who among else also lectured evidence law (when she sees fit), in her Toilet Lid Case however (in 2012) she swore under oath that (quoting): “… because I didn’t understand about evidence …”  in response to a question as to why did she write so many false allegations of criminal nature against the Owner into her CTTT Applications as well as her Statutory Declarations.

Film Strip Glossy - MSW - Blue

Mary’s Declared Original Motivation to Litigate

Mary declared in her correspondence to the Owner that her original motivation behind pursuing her misconceived claim in CTTT was her wish to recover her husband’s expenses (who was not a party to the Luxury Holiday Accommodation Contract) for repair of the Toilet Lid negligently broken by him by inappropriately sitting on the lid (instead of the seat) while cutting his nails.

It is common knowledge that most toilet lids are generally not designed to be sat on, as opposed to the toilet seats – hence the terminology seat versus lid.

Quoting the Applicant from her email dated 07/08/12, from her CTTT Application/Submission filed 17/08/12:

“. . . the toilet seat broken when Cris was sitting on it, cutting his nails.”

Further quoting the Applicant from her Letter dated 30/08/2012 [pg 1 of 10, par 03] to the Respondent in response to his Contract Termination Notice to her:

In my view, the trigger for this Notice has been the threat of legal action by me 3 days prior in respect of recompense for the replacement of the toilet seat, ….

We assert this damage was a result of fair wear and tear”, and “We are in dispute about damage that we assert is fair wear and tear, which we are happy to have adjudicated by a court or other tribunal,…”

Film Strip Glossy - MSW - Toilet

Mary Spiers Williams complained in her Statutory Declaration [at 56] on page 6 (quoting):  “On 15 May 2012, [the Respondent’s Assistant] had emailed my husband and told him to go ahead with the purchase of a replacement toilet seat he had broken when sitting on the lid (having previously required that it be the same expensive model).”

Mary Spiers Williams claimed, in order to escape liability, that the premises were not luxurious premises despite:

  • she previously complained that the installed toilet lid was of too expensive modelwhen required to be replaced by her husband
  • she signed Luxury Holiday Accommodation Contract, and
  • the Luxury Holiday Accommodation Contract in its clause cl.9.1 relevantly provided (quoting):  “The Grantor agrees to deliver the residential premises in their advertised condition i.e. as luxurious and absolutely clean” – as opposed to just reasonably clean, and
  • the Luxury Holiday Accommodation Contract in its clause cl.9.3 relevantly provided (quoting):  “The term “Luxurious Accommodation” attempts to describe premises of a High Standard that are fully functional, absolutely clean and of new and modern appearance”, and
  • the “Ingoing Condition Report” disclosed on the top that the premises were Newly Renovated, and
  • the “Ingoing Condition Report” reflected that the premises were absolutely (as opposed to just reasonably) clean, new and fully functional, and
  • this above standard condition of the premises was agreed on by Mary Spiers Williams by signing the “Ingoing Condition Report” and the Photographic Part 2 of the Luxury Holiday Accommodation Contract, and
  • the premises only featured expensive luxurious fixtures such as the Semi Frameless Grange Stegbar Shower, custom designed kitchen/living room built-in furniture (not a standard flat pack), designer light fittings, high quality stain less steel oven and ceramic cook top, fully vitrified Italian tiles with acoustic bonding for maximum style, comfort and privacy (representing around $50,000 renovation bill).

Tribunal Orders Sought by Mary

Mary in her CTTT Application dated 17/08/2012 sought, among others, also the following Orders:

  • Order under s.11 of the RTA 2010 (NSW) to change the Short Term Luxury Holiday Occupancy Contract into standard Residential Tenancy Agreement after 8 months of reliance on the Short Term Luxury Holiday Occupancy Contract, i.e. after 8 months of use of the premises as Holiday Apartment, after her 3 month fixed term contract was extended twice.
  • An Order to extend the 3 months Holiday Contract to a 18 months fixed term Standard Residential Tenancy Agreement despite explicitly declaring being in fear for her life.
  • An Order under s.187(1)(a) to ban the Owner from any direct communications with the Occupant, seeking for the Owner to communicate with her always and strictly only via the Tribunal.
  • Order under s.73(a) of the RTA 2010 (NSW) to change the lock to the apartment and to lock the Owner out on the grounds of being in fear for her life, for her psychological health and for her possessions.

(No valid examples of Owner’s alleged conduct reasonably capable of causing her such fear were identified and no evidence of any such conduct was ever identified or produced.)

Warning:

In this regard all Owners & Landlords need to be warned about the combined effect of the  s.190(1) RTA 2010 (NSW) & the Part 5 cl.22(9) Residential Tenancies Regulation 2010 (NSW) quoting:

“(9) For the purposes of section 190 (1) of the Act, the prescribed period for making an application for an order in relation to a breach of a residential tenancy agreement or proposed agreement is within 3 months after the applicant becomes aware of the breach.

It strongly appears to the author of the article that Mary, as a skilled lawyer, attempted to abuse the above legislative provision for improper purpose – specifically to escape any and all liability through trickery – which she would likely had achieved if her request to lock out the Owner and to ban all business related communication was successful.  This would have left the Owner paralyzed and unable to effectively respond to and investigate any damage notifications due to the added expense, hence allowing the Applicant to abuse the Fair Wear & Tear provision as well as the Tribunal’s process.

Considering the perceived “expertise“, “fairness” & “transparency” of the Tribunal (see further below) it was reported by the author that the Owner’s Assistant considers herself very lucky to have successfully argued for termination of the contract and to have evaded what still strongly appears in her mind to have been the main original aim of the Occupant before the contract was terminated.

  • Mary also sought an Order under s.187(1)(d) to financially compensate her for trespass to her privacy purportedly occasioned by the Owner’s Assistant by attending her university class in which she was enrolled from Monday, 21 November 2011, 3:42PM which is  one  month prior to ever meeting Mary on 24/12/11.

While Mary wrote in her Statutory Declaration dated 01/03/2013 [at 2] that she had only (quoting):  “in principle agreement to teach at UNSW” around the 24/12/11.  This means that she did not have an actual binding contract at that stage – for which reason her name was not yet published in the UNSW Student’s on-line Timetables around 24/12/11.  She appeared to have earlier claimed however, under oath, in the Hearing 22/02/13, that she had already her UNSW appointment secured.

It strongly appears to the Owner’s Assistant that this statement dated 22/02/13 was made for the purpose of giving misleading testimony to the Tribunal to argue that the UNSW student timetable link was an adequate proof of her employment at UNSW which she furnished to the Owner’s Assistant on 24/12/11 – on the basis of which, and in absence of any other material or any Residential References, and before any contract negotiations even started, she purportedly successfully negotiated on her first viewing appointment 24/12/11 some sort of valid Oral Residential Tenancy Agreement.  The Applicant mislead the Tribunal that the Owner had later changed his mind and changed his offer to a Short Term Luxury Holiday Occupancy Contract despite the Applicant responded to an advert offering Holiday Occupancy.

The Member noted in the Hearing that the Applicant was in fact responding to a Holiday Occupancy advert and that she signed Short Term Luxury Holiday Occupancy Contract.

The Tribunal accepted this false testimony and rejected an actual relevant evidence in form of a complete, written and formal Holiday Contract (containing 5 Parts) and in it attached under Part 5 Mary’s own separately signed Declaration (quoting):  On (insert date) 24.12.2011 – I submitted a Luxury Holiday Accommodation Reservation Form and paid a reservation fee amounting to the first week’s rent.” 

This is commonly referred to as Wednesbury Unreasonableness and represents valid ground (jurisdictional error) for External Appeal to the Supreme Court – to those who can afford it – which most people can not – hence not having real recourse and no real access to justice.  

In any event, if Mary’s statement in the Hearing 22/02/13 – that she had already her UNSW appointment secured – was true it would then most likely follow that when Mary turned up for her 1-st apartment viewing session on 24/12/11 she already had an access to her preliminary student class list generated automatically by the UNSW on-line NSS system – which would have reflected that the Owner’s Assistant was enrolled in Mary’s Criminal Law C class from Monday, 21 November 2011, 3:42PM (as per Owner’s evidence in Folio 40-48 filed 24/01/13).

This would explain why Mary intentionally failed to admit and to further inquire with the Owner’s Assistant about a possibility of a ‘Conflict of Interest‘ down the track when the Assistant fully disclosed already on the very first viewing session on 24/12/11 that she is studying law at UNSW.

Mary, as a lawyer and a university academic claiming to have secured a contract at UNSW, was highly likely to have known or anticipated that she either already had a ‘Conflict of Interest‘, or at least that it was likely to arise – which she inappropriately failed to disclose in order not to lose the apartment.

Had Mary disclosed her ‘Conflict of Interest‘, it could and would have been easily solved by Owner’s non-engagement in negotiations and by sending her on her way to find another rental accommodation – had she fairly provided such opportunity.

It is also noted for the record – that had Mary been really interested in a Standard Residential Agreement as she claimed in her testimony – she would have most likely have secured one – had she provided the necessary Residential References – as there was and still is an oversupply of standard residential tenancy units in the area.

Quoting Mary from Table 06 Transcript of Recording Extract: Contract Formation & Negotiation:

Julie I spoke – she didn’t come back to me – she is my – we didn’t really have landlords – we were in Canberra because we stayed with family and things like that – we’ve got lot of family down there – and Julie is the longest landlady I’ve had – and there is an Allice Springs landlord that I’ve been waiting for reply to my email – so I just need to – maybe because in Alice Springs they shut down – you know – it’s like summer time up there  – yea – I think they must have shut their office last week early before Christmas eve — we rented through a landlord – you know –  the Professionals – Real Estate Agents – so – we had a house for a year – so – that’s probably a best one – but Julie – I rented from her probably for 5 year when I was here – she was great!

and

rented weekender from friendsrecently house sat for a friend …

and also quoting Mary from Table 03 Transcript of Recording Extract: Contract Formation & Negotiation)

“… for us to give up extra $2000 is – you know – why do we need to give up this when there is gonna come a lot of properties onto the market in January – you know – there’s a lot of properties coming onto the market in January – and that sort of things …

After Mary secured her occupancy and only after the UNSW classes already started she then went to the Course Coordinator and asked for the Owner’s Assistant to be removed from her class on the grounds of “Potential Conflict of Interest“.

However, as there were no alternative classes available (all booked out) at that stage (with the rest being not fitting due to timetable clashes), and also due to no assistance from the UNSW (despite requested) the Owner’s Assistant was forced to withdraw from the UNSW completely – which unduly delayed her carrier.

Mary then wrote the following to the Owner’s Assistant in an email dated 02/03/12 (Folio 52 – filed 17/08/12) quoting:

I’m writing this email at 9:30pm after a really long first week, and annoyingly after I’ve tried to answer your email twice – first the iPhone crashed and then somehow my computer shut down by itself when I left my desk and wiped the second version.  This of course is not your fault – so here I go again…!  This is email is longer that it might otherwise be as I’m quite tired. Please excuse any typos or strange autocorrects that creep in. …

First of all, let me be plain: there is a clear conflict of interest. This is completely uncontroversial.

Now, I’ll openly say: I had not immediately come to grips with this reality, and this raises in me some concern that there was already partiality on my part: rather than simply acting immediately as the conflict demanded (and as I’ve done quite easily in other comparable situations), I see now that I hesitated because I was concerned that this might upset you.

…  I recall now when we were talking at the flat that you mentioned in passing that you were studying law, but I didn’t realise that it was at UNSW, nor that you were doing Criminal Law.”

Mary also wrote the following to the Owner’s Assistant in her email dated 09/03/2012, 5:45PM:

I was sorry to hear that you have withdrawn from the Criminal Law 1 course.  I’m surprised that it wasn’t able to be resolved by everyone, as it’s not that exceptional an event.”

Response from Owner’s Assitant to Mary dated 15/03/2012, 8:32PM:

Dear Mary.

I am very sorry too, mainly in regards to Sandra’s ‘Chinese Wall of Non-communication’ and her refusal to attend to her administrative responsibilities.  Just to explain – I received no reply from her what so ever which effectively left me in an ‘Assessment Limbo’.  

 Considering the expense of the education, UNSW’s refusal to assist, my inability to transfer to another class due to timetable clashes, … – I was left with no other option.   Consequently I feel having been coerced into such a decision. 

This has caused me a great distress, delays as well as financial loss. … “

Mary also wrote the following to the Owner’s Assistant in her email dated 16/03/2012, 1:39PM:

All – literally all – I am hired to do is teach at UNSW.  I have no role at all in relation to administration.  As it is I barely have enough time to prepare, teach and mark.  I have no time nor is it my role to even consider the other matters that you raise.  I’m not going to go into the issue of the conflict of interest;  I’ve already explained in detail what that was; …, .  I repeat to be clear: I don’t have the  time to address whatever your concerns are, it’s not my job and I don’t want to.

My email was intended to offer sympathy, that is all.”

The following was written by Mary in her Tribunal Application 17/08/12 Chronology Table on page 2, 1-st row (quoting):

[The Owner’s Assistant] mentions that she is a law student.  I ask her no questions about this and no further information is proffered by her.  I had in fact assumed that she was at another university, otherwise one would have expected her to mention she was in the same law school.”,

Despite all of this Mary still had the “moral fiber” to claim this kind of compensation.

  • Member Simon in the Hearing 22/02/13 voluntarily provided free legal advice to Mary spontaneously offering her that, since she is unable to action Mary’s request in the way it is currently formulated (specifically requesting the Owner to surrender his Electricity Bill Originals he paid to his provider), but she could instead order the Respondent to refund the electricity paid by Mary to date.  The Member said that she will find out what the law is on this issue, and will allow Mary to amend her Application accordingly – if it is misconceived for the second time.  Mary immediately took up the offer and amended her CTTT Application for the second time to also include an Order for return of all of her electricity payments made to date, despite:

1.)  Mary admitted in her Tribunal Application filed 17/08/12  in the attached Chronology table on pg 5 in the 4-th column, 3-rd & 4-th entries/rows from the top (quoting):

MSW sends SMS … to [Owner’s Assistant] requesting the original electricity bills … be posted to [Mary’s mail box]”,   and   “[Owner’s Assistant] emails that has received SMS, and will not post but will hand at the next cash payment of rent

2.)  Mary also earlier admitted in her Sworn Hearing Testimony on 22/02/13 that she does not believe that she was overcharged or improperly charged for electricity and that she suspects the receipts are correct.

Section 38(1)(a) of the RTA states (quoting):  “A tenant must pay the following charges for the residential premises:  (a)  all charges for the supply of electricity, gas … or oil to the tenant at the residential premises if the premises are separately metered,”

During her occupancy, Mary was never interested to inspect and to verify the electricity bills, which was repeatedly being offered to her.  She only wanted to receive the Owner’s Originals.

Clearly, there is no legislative requirement even under the RTA 2010 (NSW) for originals or any electricity receipts for that matter to be provided to tenants – but there is clear legislative requirement for electricity charges to be paid by them – consequently it strongly appears that Member Simon attempted to do much more than just legally assist Mary.

For the record, Mary was able to check the correctness of her electricity payments as she received detailed transcribed copy of the originals of the Owner’s Bills on each occasion, had full and unlimited access to the electricity meters in the building, and could have verified the current electricity rates on the internet.

Mary’s Primary Motivation – Malice

Her primary and overriding declared motivation behind running the Case was “to teach the Owner a lesson” and to cause him a maximum damage.  A copy of her email dated 19/12/12 can be found in the ‘Corruption in Tribunals‘ page section.  Extracted quotes:

“… we just agreed [with the Holiday Contract] so we didn’t have to keep looking …” 

“… the ‘‘winning’’ is really only that you lose a lot, and it seems completely disproportionate to the scale of the dispute.”,

I just felt: I really don’t want you to be harmed.  Quite suddenly I didn’t feel like ‘‘teaching you a lesson’’ any more,

…  To make the situation worse, your names and the property address will also be published.

“… I asked myself: what do I really gain by pushing this hearing to the limit?  I win, …, with you left facing a prosecution process, fines, a criminal history and future income loss …”

Remedy – Clearly Not Mary’s Primary Motivation

From the email dated 19/12/12, and specifically from the quotes published above, the recovery of remedy i.e. the recovery of the Bond (which was claimed by the Owner for the damages occasioned by Mary to the recently renovated luxury apartment which arose as a consequence of her multiple breaches of contract) does not really appear to be her primary goal.

Retaliatory, Malicious, Frivolous and Vexatious Litigation

Such conduct usually amounts to malicious, frivolous and vexatious litigation.  The Tribunal – despite it has an overriding duty to protect its process from abuse and perjury – instead of proper inquiry actively prevented the Owner from addressing this issue.  Despite relevant evidence was provided, it was treated by the Tribunal as “irrelevant”.

The Owner/Respondent never received fair opportunity to challenge the obviously false Occupant’s claims or her abuses of legal process (which was admitted by the Member to have occurred [at 4] of her Decision 02/07/13 (quoting): “… At the conclusion of three hours the Tribunal had only heard submissions and evidence relating to jurisdiction. …”, this means that the Owner was denied that right as per Deputy Registrar R. Komban on 04/01/13 (quoting):  14.  … All Respondent’s concern as contained in the documentation provided with RT-ID-Witheld can and in fact must be dealt with in RT-ID-Witheld.

After Mary’s email evidence dated 19/12/12 was brought into issue in the Hearing 22/02/13 – in response to a question as to why did she write so many false allegations of criminal nature against the Owner into her CTTT Applications – she responded while under oath (paraphrasing):

“… at the time when I made the application on the 17th of August … and then I repeated it in the application for this matter because I didn’t understand about evidence  …  I was still really upset about everything that was going onand part of these orders for this matter I’d actually sought they be prosecuted …  and – as you probably gathered from the email 19/12/12 – I no more really am interested in that …

The only events which were occurring at the time were:

  • 20/07/12 – Owner’s Premises Condition Investigation Report – was sent to the Occupant – assigning liability for the reported property damages to the Occupant as a result of being occasioned by negligence and her multiple breaches of contract
  • 14/08/12 – the Occupant was served with document foreshadowing the upcoming termination of her contract
  • 17/08/12 – the Occupant was served with valid 2 weeks’ Termination Notice based on about 14 Breaches of Contract, inclusive of her refusal to remedy the damage and breaches

Film Strip Glossy - MSW - OHM

In the Hearing 22/02/13 when the Respondent attempted to cross-examine the Applicant in order to inquire about her motivation behind a particular statement (in her email 19/12/12 – which is displayed in the ‘Corruption in Tribunals‘ page section) which appeared as an admission that she is receiving substantive legal advice directly from Tribunal which encouraged her to go the Hearing – and to specifically find out whether it was in fact an admission or intimidation (amounting to contempt) – the Tribunal Member improperly stepped in and argued angrily for the Applicant with threatening attack asking whether the Respondent is alleging Tribunal’s collusion.

Naturally, consequent to the Tribunal’s duress, the Applicant’s answer was never obtained, as it also happened regarding the rest of the relevant issues on most of which the Respondent was misled by the Member.

When the Respondent attempted, in the Hearing 22/02/13, to bring into issue (and into evidence) all the Applicant’s illogical and clearly frivolous and vexatious Orders and false allegations made in her Tribunal Applications/Submissions alleging in effect Owner’s Misrepresentation/Unconscionable Conduct/Fraud (however without any evidence), the Member Simon again spontaneously offered to the Applicant that the Tribunal can deal with that on the fact that it is irrelevant and asked if it prejudices the Applicant in any way.

Quite obviously Mary’s false allegations of Misrepresentation/Unconscionable Conduct/Fraud contained in her Tribunal Applications, Submissions, Testimony & Statutory Declarations were evidently NOT IRRELEVANT – as they were regurgitated by the Member in her Decision [at 30] and repackaged into a slightly different context that the ‘Respondent intended to avoid jurisdiction of the RTA’ – which finding, given the facts as well as the Member’s own observation in the Hearing, is simply untenable (find below under Member’s Observations).

Perjury

Not less significantly, in the author’s opinion, Mary perjured her self on multiple occasions during the proceedings however the Tribunal refused to take notice or action, and on each occasion allowed her to either amend her claim or to withdraw relevant statutory declarations in every instance of the Owner’s attempt to challenge, or awarded the Applicant with protection by assigning unspecific kind of “privilege” to an unprotected and contemptuous document  (specifically the email 19/12/12 – displayed in the ‘Corruption in Tribunals‘ page section) which was labeled by the Applicant as (quoting):  It is my opinion about this case [Ref: Applicant’s Table of Objection to Respondent’s Evidence, on page 9 under Attachment 34] .

Upon due analysis of the document – it is clear that it does not contain any (let alone genuine) offer to settle or mediate, does not represent legal advise, in fact it waives any that may have been obtained, and is replete with threats and admission that the litigation is malicious, frivolous and vexatious.

What the Tribunal did not do however – it did not change its Decision which was based on that withdrawn misleading material.

It also refused to give Re-hearing.  

Paraphrasing the Owner – as per Tribunal’s Audio Record dated 11/06/13:   

“… Ms Simon – it may be more practicable if our application is dealt with first – So that issues can be identified – or maybe there will be some overlapping – since there are issues there are issues that may result in contempt and dismissal of the malicious applicant Mary Spiers Williams … Well – new documents that came to our mailbox.  … That’s a document from Electoral Commission – Ms Williams swore on oath that she registered our address with the Electoral Commision.  I have a proof that is in fact not correct – as are all her other allegations

This is not – please don’t interrupt – this is not a fishing exercise at all – you are misconceiving this.  Ms Williams provided brand new evidence in her statutory declaration.  There were many personal attacks and many items raised and many old and new items reiterated.  Old and new.  So if she – and it’s dated 1st of March – so it’s after the hearing.  Since she is reinstating issues and issuing new evidences or referring to new evidences – and since they are attacking our reputation – we have a right to see and challenge those allegations – that evidence – because it was placed into statutory declaration – that is a serious thing.  So we have right to challenge and see that evidence.  That is the reason – since it was re-agitated – that she has to now deliver them – because she hasn’t actually delivered them yet…  – and it’s also in the Decision without evidence – and it’s false accusation – actually it’s very defamatory to me. … If she put forward these obvious lies – could I at least address those?

Paraphrasing the Applicant – as per Tribunal’s Audio Record dated 11/06/13:   

I’m abandoning it.  … I’ve just said those matters are all withdrawn”, and “the reason I have that material there is because of some uncertainty that the jurisdiction issue is somehow gonna be reopened because – yeahh – so most of the stuff in the affidavit can be stricken out

Paraphrasing the Member – as per Tribunal’s Audio Record dated 11/06/13:   

I do not find – the tribunal does not find it necessary for all of those things to have to be summonedYou may feel it – you need to start to recognise that what you feel you require – and what the tribunal requires – may be two different things and you just going to have to deal with that.  OK?  So what I am going to do now is we are first of all going to deal with the application of the Tenant.”

Quoting the Applicant’s response to the Owner’s rehearing Application – filed 05/08/13:   

“… The applicant explained that this affidavit evidence had been tendered to address that [jurisdiction] question.  When the Tribunal member clarified that jurisdiction had been determined, the applicant indicated to the tribunal hat that evidence would not be relied upon, and sought to withdraw the tender which was granted.”

The author also reported that it strongly appears (from the above paraphrases of the statements from the Audio Record of the Hearing) to the Owner’s Assistant that Mary lied to the Tribunal in regard to the issues of Tribunal’s Jurisdiction – which statements she subsequently decided to quickly withdraw on the Owner’s attempt to challenge her testimony.

And no, the withdrawal of Mary’s tender of her Statutory Declarations was not granted, as the relevant Audio Record of the Hearing does not confirm that claim.

If it was however – of which there is no formal record – then there is no basis for the Tribunal’s Decision what so ever – as no objective factual evidence proving to the requisite standard that Tribunal has jurisdiction was produced by the Applicant to this day, with the onus of proof resting firmly on her.

Despite this, the Tribunal refused to grant the 1-st Application for Re-hearing, and it is anticipated that the same is likely occur for the second time. 

We will update the report – according to new developments as they happen.

Film Strip Glossy - MSW - Blind

Blind Cord Perjury:  another example of lack of credibility

In some of the Mary’s video files pertaining to the frayed blind cord Mary lied that the Owner refused to repair the frayed blind cord, and that the blind was so bad that it prevented Mary’s enjoyment of the property.

However Mary in the Owner’s audio evidence [Ref: Transcript of Recording Table 14] of the Inspection dated 18/07/12 repeated – in order to emphasise – that she is not requesting and in fact does not need the Owner to repair the blind cord, and that the blind is fine, fully functional and does not limit the Applicant’s enjoyment of the property:

quoting Mary:  “…  I mean — up to you – we don’t mind – it’s not affecting it’s use.   As far as us concerned it’s perfectly fine  …  but – you know – as I said – we’re fine with it   … I sent him an email we don’t need to – you know – we’re not asking for it to be repaired …”

quoting Owner’s assistant:  No – you didn’t

quoting Mary:  Well – I didn’t ask for it to be repaired – I’m just letting you know that that’s what was going on – so

Similar was stated by Mary in her 3-rd Premises Condition Report [Ref: in Owner’s Folio 150 (filed 24/01/13)] (quoting):

“… nil request for repair as does not interfere with enjoyment of property…” .

Back to the issue of jurisdiction.

Mary unambiguously stated her-self on pages 4 & 5 of her Closing Submission filed 06/03/13 that she does not have any post contract negotiation evidence except for her testimony that she originally wanted and inquired (before contract negotiations even started) about the possibility of getting a regular residential tenancy agreement – which the Owner refused to give her.

This means that she provided evidence to the Tribunal that she did not have any evidence capable to prove that she entered into a valid standard Residential Tenancy Agreement.

Contempt of Tribunal

Mary spiers Williams - Toilet and Shitting

This lack of evidence on Mary’s side did not prevent her however from expressing her opinion about this case & possibly also about the Tribunal’s process which she expressed through her tender of Defecating Evidence with file name: “\A. Images relevant during tenancy\IMAGES … during tenancy mostly 20110722\ IMG_1256 Please turn down sound! accidental film entry\IMG_1256 accidentally filmed entering shows opening padlocks and a little of the entrance perhaps 20110820.MOV”.

It is an audio, it is most irrelevant, offensive and disrespectful piece of evidence ever heard, it was admitted into Tribunal’s evidence, Tribunal had no objections or comments, nor did it ever place any ban on its publication.   You can locate it on the Corruption in Tribunals page and enjoy the sounds of Mary Spiers Williams “literally defecating”.

Remember the proceedings in Tribunals are undertaken under the “Open Court” conditions.  If Mary Spiers Williams ever thought it was OK to produce this material for such purpose – then it is equally OK and in public interest to be released.

Considering that (according to Ng v Wee [2011] NSWCTTT 396) it is the Claimant/Applicant who bears the burden of proving the existence of Residential Tenancy Agreement, and also that (according to Dayeian v Davidson [2010] NSWCA 42) the onus of proof is quite high in that it requires the claimant to prove an existence of a valid Residential Tenancy Agreement with necessary requirements of formality of a contract which satisfies the inclusion of contractual consideration flowing both ways, and also contains a clear evidence of an intention to create legal relations and certainty in fundamental terms, and not less importantly also considering (according to Jonsson v Arkway Pty Ltd and Anor [2003] NSWSC 815) that the Tribunal cannot just give itself jurisdiction subjectively in absence of Facts or authority of the law, and also that (according to Armstrong Jones Management Pty Ltd v Saies – Bond and Associates Pty Ltd (RLD) [2007] NSW ADTAP 47), the Tribunal can not allow a party to bring an action for misrepresentation, unconscionable conduct or fraud’ out of time due to estopel, and especially not without any evidence what so ever – while also considering that the Tribunal completely ignored all the relevant evidence, law, principles of equity & justice including good conscience – one would simply have to be forgiven for believing that the Mary’s Toilet Lid Case was a criminal abuse of legal process for furtherance of fraud, especially when Elizabeth Louise Williams just happens to be a CTTT part time member and Louise appears to be Mary’s either sister or cousin according to the following public record on http://tributes.smh.com.au/obituaries/smh-au/obituary.aspx?n=ronald-williams&pid=155715641#fbLoggedOut: 

WILLIAMS, Ronald Henry Charles

12.1.1921 – 30.1.2012

Passed away in Canberra.  Beloved husband of Norma (dec).

Much loved father and father-in-law of Sue, Robert and Daphne, George and Sandra and Cherie and Dennis.  

Beloved Grandpop of Mary, Catherine, Ben, Louise, Josephine, Rhys, Nico and great-grandsons Tom and Lochlan. ‘We will always love you.”

William Cole Funerals Canberra

Ph (02) 6253 3655.

Considering that Mary’s full name is:  Mary Anne Elizabeth Jane Spiers Williams, the above record may or may not be a coincidence – the fact is that it should have been properly investigated when the responding party complained about this including the obvious Bias repeatedly during the proceedings, including to the Chairperson.

Mary also misled the Tribunal when she claimed (quoting):  I … had content insurance for the apartment, was on the electoral roll at that address in her Closing Submission filed 06/03/13.  She made this statement in an attempt to prove that she used the premises as a standard residential accommodation rather than a holiday accommodation.

Perjury

Evidence of an actual Perjury proving that she in fact never registered that address with electoral commission was provided to the Tribunal in the Owner’s Folio 337 (filed in the Hearing 11/06/13).

Again even such a clear and direct evidence of Perjury seriously affecting the credibility of the Applicant and the value of her unverified and unsubstantiated claims – was completely ignored by the Tribunal – as if it was never provided.

Evidence

Her evidence also was that she responded to a holiday accommodation advert, applied for luxury holiday accommodation and signed a Luxury Holiday Accommodation Contract.

But she also claimed that she did not read the advert properly, misunderstood the advert and thought it also automatically offered Standard Tenancy Agreements, she though she actually applied for Standard Tenancy on the basis of some sort of unidentified and mysterious ‘Oral Agreement’, she also misread the Accommodation Application Form, thought she ticked off a 12 months standard residential agreement, and she also read the old legislation while she was clearly referring in her correspondence to the newly introduced sections from the RTA 2010 (NSW), and of-course “did not understand about evidence” despite being a criminal lawyer teaching evidence as a subject at university.

Accepted Evidence

The Tribunal accepted these obviously false claims and elevated them onto the pedestal of objective factual evidence.  The Holiday Accommodation Contract and in it contained separately Signed Declaration (quoting):  “On (insert date) 24.12.2011 – I submitted a Luxury Holiday Accommodation Reservation Form and paid a reservation fee amounting to the first week’s rent.” – all became irrelevant considerations, as were the facts that the Applicant was a skilled criminal lawyer, gifted academic awarded with a stipend and a research grant and was at the same time a university lecturer.

This Declaration alone, signed by the vexatious Applicant Mary Spiers Williams, reveals that the validity of the Short Term Holiday Contract stayed un-refuted by the parties’ conduct or surrounding circumstances capable to show that both parties shared an objective intention to enter into a different binding contract.  There simply was not any such evidence, as Mary Spiers Williams herself explicitly confirmed by stating in the hearing as well as in her Tribunal Submission that she did not have any evidence of the Owner’s engagement in misleading advertising, deceptive conduct, misrepresentation, unconscionable conduct or fraud.

Crucial facts (such as the Applicant’s Signed Declaration dated 24.12.2011, the Contract & its content) were mislabeled as  irrelevant considerations despite the Tribunal’s over reliance on a WA Case Law Re Glynn; Ex Parte Royle & Ors [2003] WASCA 122 main dictum in which expressly states that of cardinal consideration always is the signed contract, its terms and conditions, or the strategic intent expressed in it.  Only when there is no contract or the contract is invalid then, and only then the consideration of subjective intention of the parties to determine the purpose of the contract is permissible.

Hill v Newth [2014] NSWSC 298 also confirms that claimant will always have a difficult task in proving that the parties intended to be bound by informal letters, emails and discussions.  Parties will only be bound by a formal contract. In this case, s.14 of the RTA 2010 NSW requires a contract to be evidenced in writing.  The Short Term Holiday Contract was in fact in writing, was of substantial volume and detail and was evidently excluded from the operation of an RTA 2010 NSW by s.8(1)(h).

The “gifted” member Theresa Simon instead of proper reliance on the written Contract (as Re Glynn; Ex Parte Royle & Ors [2003] WASCA 122 would dictate) preferred to rely on the blatant fabricated lies of her acquaintance Mary Spiers Williams which were unsupported by any evidence or any contract.

Member Simon in her decision selectively reported only those terms and conditions of the Holiday Contract which fitted her biased agenda, and omitted from reporting those which gave the Contract its holiday character.  She also failed to report the expressly formulated Strategic Intent of the Contract.

The Member [at 29] of her Decision decided that she is permitted by s.13(2) of the RTA 2010 to consider surrounding circumstances instead of the express terms and conditions of the complete, entire and written contract.  Member Simon obviously misconstrued the purpose of that section, which is to ensure Tribunal’s jurisdiction to review Residential Tenancy Contracts which are not in written form or are only partly written.   This was not such case, as the Holiday Contract contained 5 parts, was very express, detailed, specific and tailor prepared according to the express wishes of the Applicant who co-operated on its production.  Consequently the Member acted ultra vires, in overstepping the boundaries of her powers conferred to her function by the Legislation, by inappropriately misusing the s.13(2) for inappropriate purpose not intended by the Legislation, and by subjectively awarding her self with jurisdiction which was excluded by the operation of s.8(1)(h) of the RTA 2010 (NSW).

Interpretation

s.8(1)(h) of the RTA 2010 (NSW):    an agreement made for the purpose of giving a person the right to occupy residential premises for a period of not more than 3 months for the purpose of a holiday

Section 8 therefore exempts agreements made for the purpose of giving a person the right to occupy premises for the purpose of a holiday.

Consequently the Member erred in identifying the wrong question whether the purpose of the occupation was for a holiday because the real question actually is whether the agreement was made for a holiday purpose.

That is of-course a huge difference because the Member’s preferred version of the question inappropriately excludes the process of negotiation, and the Contract itself from relevance – in contradiction with the dictum in Re Glynn; Ex Parte Royle & Ors [2003] WASCA 122 – representing a case on which the Member relied.

In addition, the “the right to occupy” applies equally to premises, to tenure (or length) of stay, as well as to purpose of stay.

Consequently, the s.8(1)(h) does not prescribe the length of stay in terms of prohibiting re-booking, or advance booking of premises ahead, it merely states that the agreement gives an Occupant right to stay at any particular time for a period not more than 3 months – in another words – that the agreement or contract at any particular time should not exceed 3 months – therefore clearly hinging on security of the stay.

In the same context, the s.8(1)(h) does not say that a person must not stay more than 3 months, it only says that an agreement period should not exceed 3 months.

Similarly, the s.8(1)(h) does not prescribe the use of a property either – it only refers to occupant’s right to inhabit residential premises for the purpose of a holiday, it does not say that the occupant must use the premises for the purpose of Holiday – it only provides right to do so.

The Holiday Contract provided to the Applicant is clear on its security of tenure aspect in that it does not provide any.

The Contract is also clear on its aspect of tenure itself in that it is at any particular point in time only a 3 months fixed term contract  –  only providing maximum 3 month long discrete fixed terms  – each being defined and counted as new discrete fixed term period (page 1 of the Contract).

In addition, each fixed term period ended with compulsory ‘Premises Inspection Self Report’ – equivalent to Final Inspection Report at the end of stay.

The Contract is also clear on the aspect of its Strategic Intent to provide luxury accommodation to public with high standard of living and comfort as to create an experience of a holiday atmosphere without discrimination and compromise (page 2 of the Contract).

Owner’s Interpretation consistent with Re Glynn; Ex Parte Royle & Ors [2003] WASCA 122

Consequently, on the only relevant, valid and cardinal evidence provided to the Tribunal, the only possible conclusion is that the Applicant’s dominant purpose of entry into the Holiday Contract was for the purpose of holidaying repeatedly in the same location.  This falls well within the exclusion of s.8(1)(h) of the RTA 2010 (NSW), and also satisfies the interpretation of the term “holiday purpose” as per Re Glynn; Ex Parte Royle & Ors [2003] WASCA 122.

Tribunal’s Findings & Decision:

Despite Mary explicitly stated that she did not have any evidence of the Owner’s engagement in misleading advertising, deceptive conduct, misrepresentation, unconscionable conduct or fraud the Tribunal still miraculously found, without any evidence, that the Owner/Respondent intended to avoid jurisdiction of the RTA,  – this despite the Tribunal also found that the Owner was not a principal party in negotiation of the Contract, and (quoting the Member): ‘So this is not in the standard agreement.  This is stuff that you guys put together’, and despite Mary Spiers Williams admitted in her email 19/12/12 that she took her zealous negotiations to the limit by not allowing the owner to let the premises to someone else.

In this context, the mind-blowing testimony of the member Theresa Simon in one of the hearings (quoting): Despite what people say I know the law – will never be forgotten.

The Respondent certainly never said or even hinted anything but noticed that Member Simon took agitated objection every time he or his assistant allowed themselves to cite any legal authority.

Theresa Simon

Theresa Simon

This offensive and unsubstantiated Tribunal’s finding is in grave inconsistency with literally all existing evidence as well as with Marshall and Discrimination Commissioner and ors [1998] ACTAAT 258 in which a highly experienced panel of the ACT AAT gave the following directions about admission and treatment of evidence with a potential for great prejudice:

Where allegations have serious consequences for the person affected, whether in respect of reputation or otherwise, the Tribunal should not make findings unless satisfied according to the appropriate degree of satisfaction that the allegations have been substantiatedWhere the ultimate finding the Tribunal is asked to make depends upon finding that a person has committed unlawful act the Tribunal will not act upon generalised statements that unlawful activity has occurred, but will require evidence of the commission of specific unlawful acts to the satisfaction of the Tribunal.”

In particular a party to Tribunal proceedings is not required to bring evidence to disprove allegations or assertions made concerning the conduct of that person or of any other person.  A person who makes allegations or assertions about the conduct of another must produce material to the Tribunal that would, in the absence of any other material, establish to the requisite standard of satisfaction of the Tribunal that the conduct occurred.

Quoting an extract from the Applicant’s email dated 19/12/12:

“It seems very bitter that the “winning” is really only that you lose a lot, and it seems completely disproportionate to the scale of the dispute.I realise that you are very angry at me, and blame me in part at least for agreeing to the contract.I know now that I should never have agreed to the contract and should have just walked away when we weren’t going to get what we needed, which was regular long term lease I wish everything could be undone …, and just left you to let the apartment to people who really did only want to use the apartment for a holiday for a couple of months. …”

The Tribunal also decided to completely ignore the Armstrong Jones Management Pty Ltd v Saies – Bond and Associates Pty Ltd (RLD) [2007] NSW ADTAP 47 case which disallows a party from bringing a claim for `misrepresentation or unconscionable conduct or fraudunless some action was taken by the wronged party within reasonable amount of time, because a failure to do so gives rise to an estoppel which prevents such claim.  

This was such case − because according to the facts the Applicant after 8 months of reliance on the Holiday Contract and after 8 months of using the apartment as temporary or holiday accommodation, she suddenly “woke up” and only after she was informed by the Respondent on 20/07/12 (as per Respondent’s Folio 151-154) that she will be held liable for the damages caused to the recently renovated luxury holiday apartment she then for the first time requested a change of contract into a standard RTA in her email dated 14/08/12 (in order to minimise, or in this case completely escape her liability for the damages occasioned).

Quoting an excerpt from her email dated 14/08/12:    

“[the Owner’s Assistant], …, has been sending correspondence that it is: unnecessary, …, personally insulting, and makes baseless and false assertions about our conduct in the apartment.  This has been emotionally distressing and resulted in our tenancy being consistently disrupted by fears of your termination of the contract, that you are endeavouring to fraudulently create a misapprehension in us that you will be entitled to retain our bond moneys, and increasingly fears for our psychological well-being and now personal safety due to the irrational nature of this correspondence. … These inappropriate communication practices and my subsequent distress have lead me to reconsider whether I can continue with the periodic residential tenancy given that it has been an unsettled and unhappy tenancy experience, …”

Upon detailed analysis of the correspondence she referred to (in her quote above), it becomes very clear very fast that it is no more but an absolutely polite, formal and standard business correspondence clearly offering Mary a choice to decide on her preferred mode of resolving the issue of damage and the type of remedy.

The Tribunal did not find or identify a single instance of any harassment what so ever.

Consequently, the analysis of the correspondence, would strongly suggest that the above quote represents misrepresentation.

In the author’s opinion the quote also reveals the real motivation behind Mary’s litigation – that apparently being her (successful) attempt to completely absolve herself from any and all financial responsibility and to completely escape her liability for her negligent damages occasioned to the luxury premises after 8 months of reliance on a Holiday Contract (after its second extension) – by intentionally creating a misleading image that the Owner has somehow acted illegally, despite she admitted in her email 19/12/12 that she exerted pressure on the Owner during her zealous negotiations of the Holiday Contract and did not let him to let the premises to those who really wanted it just for few moths

The Tribunal decided to run the case in an adversarial court-like mode (paraphrasing the Member):  “… this is adversarial process …“.  Member Simon also said that she is free to run her hearing as she sees fit.  She ordered parties to send their closing submissions only to her and not to each other, she kept the real issues secret, identified the wrong issues and questions, ran the case un-transparently, ignored cardinal evidence, made irrelevant consideration, constantly interrupted the Respondent, actively prevented him from running his case and from being heard, argued and advocated for the Applicant, provided the Applicant with substantive legal advice directly in the Hearing, even offered to look up what the law was for the applicant, provided misleading information to the Respondent, treated the responding party extremely impolitely which resulted in a nervous breakdown of his wife in the proceedings – to which first aid officers needed to be called.

Given the Wednesbury Unreasonableness of the entire process, not surprisingly, the Tribunal found that the Owner was not a principal party in negotiation of the Contract, which effectively means that the Applicant negotiated her Contract solely with her-self and awarded her self with “an agreement made for the purpose of giving a person the right to occupy residential premises for a period of not more than 3 months for the purpose of a holiday” – as per the s.8(1)(h) of the RTA 2010 (NSW)which would logically remove Tribunal’s jurisdiction to decide the case – which is inconsistent with the Tribunal’s Decision that it has Jurisdiction.

Member’s Observations

Despite this the Tribunal also decided that the ‘Owner/Respondent intended to avoid jurisdiction of the RTA’, while the Tribunal’s hearing observations were (paraphrasing the Member – as per Hearing 22/02/13):

So this is not in the standard agreement.  This is stuff that you guys put together’.  … ‘They are all relating to “you knew you were signing this contract – you know exactly what you were getting yourself into” I understand that that’s what you are trying to get at.  The questions I want to ask are only those pertaining to jurisdiction.’  …  but you do ultimately sign this Contract’, ‘and did this happen on 3rd of January?’, ‘but you ultimately signed an agreement that is for three months’.

The Applicant’s intent to sign a Short-Term or Temporary Holiday Accommodation Contract was also expressed in her Hearing evidence dated 22/02/13 when she claimed under oath that (paraphrasing):

down at the bottom there was fine print which declared it was a 3 month contracts – holiday apartment contractwhich I remember seeingbut thought that it did not apply to us because I did not want a 3 month contract – so I didn’t read it properly and ticked the 12 months contract and at the time explained what I preferred – we might well think about it because we were having these negotiations also about the garage and so on – at that stage  – so there were a few things that still needed to be ironed out on the final agreement.’

Attempted Fraud – Credibility

According to the evidence tendered, Mary also misused the Owner’s address and actively occupied his mail box, about 8 months after purportedly returning full Vacant Possession.

Mary Spiers Williams & Cris Muliadi

The purpose of the use was, among else, also a recent registration of her husband’s business with Google (using the Owner’s address) and her dishonest attempt to claim Centrelink benefits on her husband’s name despite they were both employed, with Mary also on generous APA scholarship and research grant .  The proof that the Applicant never needed the Centrelink support is provided in the hyperlinks below:

 http://au.linkedin.com/pub/mary-spiers-williams/23/1a/405

http://anu.academia.edu/maryspierswilliams

http://www.aiatsis.gov.au/research/grants/grants2011.html

http://www.innovation.gov.au/research/researchblockgrants/pages/australianpostgraduateawards.aspx

This  issue of attempted fraud was relevant to the issue of Applicant’s credibility as well as to her active use of the Owner’s address including his mail box eight months after the allegedly complete return of vacant possession.  It was consequently also relevant to the issue of rent payment.   The Member really did not want to hear about it at all (paraphrasing):

Member:           “Again – jurisdictional issue

Respondent:       “May I –

Member:           “No no no – you may not!  Again – a jurisdictional issue I’ve dealt with.”

Respondent:       “It’s not!  It’s not – it’s about the rent!  And you banned us from providing evidence for the damages!  She is misusing our address for illegal activity – trying to get money from Centrelink registered to our address – they have their own address – why don’t they use the Karabar?  Why

Member:           “Yeah, but that is not a problem for me!”

Respondent:      “I am sorry – my address is being misused

Member:           “no need to address this – the question is – do they provide any prejudice to being considered?”

Mary Spiers Willaims

 So, guess who won?

The CTTT Chairperson then denied the Owner’s Application for Re-hearing on the grounds that no substantial injustice was caused to him because he received plenty opportunity to argue his case. 

With great respect for the Member’s daily caseload and experience, it is our humble opinion that it is completely impossible to read and review:

  • 100 pages long Tribunal Submission replete with detail and references to evidence, and then
  • to check for correctness and accuracy of the complaints/arguments made in those 100 pages by referring to the evidence linked to those arguments inclusive of the Tribunal’s Audio Records of the Hearings (which involves review of relevant information in the Tribunal’s Audio Record and/or Transcript representing about 9 hours of speech), and then
  • to make proper consideration – that all in the record time of only 3 days.  

This is simply beyond human capability which is therefore strongly suggestive that proper review has simply never taken place, and that the Owner’s Application was brushed off by a Template Denial.

Photo Summary of the Ordeal

Mary Spiers Williams Cris Muliadi Tenant from HellAuthor’s Disclaimer:

s.42 (1)(h) of the CTTT Act 2001 (NSW): The person may be guilty of contempt of Tribunal but only if:

the person publishes, or permits or allows to be published, any evidence given before the Tribunal or any of the contents of a document produced at a hearing that the Tribunal has ordered not to be published.”

No such Tribunal’s Order to protect the Applicant or any evidence has been issued to date.  In addition the Applicant stated that she does not mind if information pertaining to the proceedings is published  (quoting):

“… To make the situation worse, your names and the property address will also be published.  The Tribunal would find no reason to withhold the details, but would find that it’s in the public interest to release that information.  It’s the same thinking that the Tenant’s Union … have;  they’ve both really encouraged me to take this to hearing no matter what so that they know it will go on the public record.  After …, I reflected on the issue of publication and the concern you raised.  While I’m not that concerned as I’m already on so many public accounts, I realised that this really will have drastic implications for you  …”

This public disclosure is made in good faith and is made under the Public Interest Disclosure Act 2010 and is made specifically for the purpose of public advancement of education on the issue of Tribunal Corruption.  This is an attempt for accurate reporting of proceedings, evidence and issues relevant to the proceedings which are of  high public concern.

This report is also an honest opinion based on “proper material” that is substantially true and published with absolute or qualified privilege, or protected by the public-report defenses.

All attempts were made to ensure that the published information is correct and in compliance with the s.42 (1)(h) of the CTTT Act 2001 (NSW).

The published information primarily represents summary or extracts of Tribunal materials, extracted quotes from party’s Submissions or Hearing Testimonies (sworn on oath in open court and hence available to public) and relevant evidence given before the Tribunal or any of the contents of a document produced at a hearing that the Tribunal has not protected by Order from publishing. The rest represents the honest opinion about the unfairness of the process and honest understanding and interpretation of the law and of the unreasonableness of the process as experienced and perceived.

Film Strip Glossy - MSW - Twitter Boots

http://www.thenewsmanual.net/Resources/medialaw_in_australia_02.html

http://www.legal.unsw.edu.au/factsheets/defamation.html

http://www.law.uts.edu.au/comslaw/factsheets/defamation.html

Mary Spiers Williams with Wanta Jampijinpa Pawu-Kurlpurlurnu

Majority Verdicts

Published:    21 Oct 2010

At:                    http://www.notguilty.com.au/Document-6/Majority-Verdicts

Author:           Phillip Gibson

In New South Wales it is possible to be found guilty of a crime with only a majority of the jury agreeing.  After a jury has been deliberating for at least 8 hours a judge may tell a jury that they can deliver a majority verdict of 11-1.  The Judge must consider that the jury has been deliberating for a reasonable time taking into account the nature and complexity of the case.  This raises serious questions about the integrity of the criminal justice system and the fairness to the accused if convicted by a majority verdict.

It seems reasonable to think that if one person doesn’t think that you are guilty then that equals ‘a reasonable doubt’ and you should not be found guilty.  Imagine how you would feel if you were found guilty but you knew that one person on the jury was not convinced you were guilty.

Of course majority verdicts can be used to acquit people but experience shows that most majority verdicts are where people are found guilty.!!  And of course there are still juries that can’t decide so the system of majority verdicts has done little or nothing to improve the criminal justice system.

Recently Mr Phillip Gibson discussed this issue on ABC Radio Morning program with host Deb Cameron and Associate Professor Jane Goodman-Delahunty from University of New South Wales.

Professor Delahunty, who has done research on juries, said that most majority verdicts started out with more than one dissenting juror.  This wipes out the argument that we need majority verdicts to overcome ‘rogue’ jurors.

Law & Order 2007 by Dennis Miralis

Published:         21 Jun 2007

at:                          http://www.notguilty.com.au/Document-4/Law-Order-2007-by-Dennis-Miralis

Author:                Denis Miralis

THE 2007 NSW ELECTIONS

As the NSW State election fast approaches, politicians of both sides will attempt to outdo each other in the so called “tough on law and order debate”. If played to script, each Party leader will accuse the other of being “soft on crime” and promise to introduce even tougher laws to punish criminals. Sober statistics reminding us that there has not been an increase in major crime will be ignored. The policies released by the two major Parties so far, show that the bidding war is in full swing.

THE POLICIES

The NSW Liberal Party Policies are mostly contained in two documents, including “Restoring Faith in the Legal System- Making the Director of Public Prosecutions Accountable” and “Re-empowering Police- Supporting our Police on the Front line”. The Labor Party’s Policies are outlined in “Iemma Government – A Safe and Secure Community”. What follows is a summary of the policies we can expect to hear much about:

  1. Introduce more frontline Police ( A Labor and Liberal Policy )
  2. Increase Police Powers ( A Labor and Liberal Policy )
  3. Introduce more offences ( A Labor and Liberal Policy )
  4. Introduce increased penalties for these offences( A Labor and Liberal Policy )
  5. Reduce the Court’s discretion in sentencing offenders (according to the Liberal Party sentences are too lenient)
  6. Reduce the Police discretion when dealing with young offenders ( according to the Liberal Party the laws relating to young people are too lenient)
  7. Reduce the DPP’s discretion so that the DPP is more accountable to politicians, rather than completely independent as is the current situation(according to the Liberal Party the Director needs to be more ‘accountable to the community’).
  8. Introduce mandatory sentencing including mandatory life sentences for murdering Police officers (Liberal Party)
  9. Overturn established principles of the criminal justice system i.e. The right to silence. According to the Liberal Party this 500-year-old principle, one of the cornerstone of our justice system, is being abused
  10. Build new gaols ( Labor Party)
  11. Introducing tougher bail laws. (Liberal Party)

WOULD THESE POLICIES REDUCE CRIME?

Government research overwhelmingly shows that the causes of crime are linked to drug and alcohol abuse, poverty, mental illness, youth unemployment, and poor family structures. However neither Party has announced a single policy offering a “get tough” attitude to these problems. Likewise the rehabilitation of offenders doesn’t appear to be a policy objective, event though it is in interest of the community to give offenders opportunities for rehabilitation.

Figures released by the Australian Bureau of Statistics in January 2007 show the percentage of prisoners held in jail awaiting trial in NSW has increased by 164% since 1996. This should not come as a surprise as having a policy outlining alternatives to prison, could be seen as being “soft on crime and criminals”.

Whilst the above policies provide for tough solutions, neither Party has outlined how they will reduce crime.

NEW “TOUGH ON LAW AND ORDER” LEGISLATION

In the lead up to this year’s election, a number of Acts have been introduced to highlight the Government’s impeccable credentials on being tough towards crime and criminals. Each of the Acts has been introduced against the weight of considered opinion by bodies such as the Australian Law Reform Commission and the Legislation Review Committee.

The Legislation Review Committee was formed by the Legislation Review Act 1987. Under s8A of the Act , the Committee considers any Bill introduced into Parliament and reports to both Houses of Parliament on whether the Bill trespasses unduly on personal rights and liberties, or makes rights, liberties or obligations unduly dependant upon non reviewable decisions.

As such, the committee performs an essential function in ensuring that the rule of law is observed by the Executive. The committee retains a panel of eminent legal advisers and publishes its consideration of bills in the Legislation Review Digest.

It appears that the rule of law and basic human rights are being increasingly ignored in favour of victory at the polls. This results in hastily and ill considered legislation that should be of concern to all citizens of NSW.

THE “anti-gang” LEGISLATION

When introducing this legislation to the NSW Parliament, Mr. Tony Stewart MP made the following comments:

“We have ramped up the penalties for gang crimes, we have given police tough new powers, we have introduced Australia’s first criminal organization offences and we have given police and their families the protection they deserve. Crime gangs are on notice. Whether you are a violent mob or an ongoing criminal enterprise, the police are coming after you”.

The Crimes Legislation Amendment (Gangs) Act 2006 was passed on 19 September 2006 and amends the Crimes Act 1900 and the Law Enforcement (Powers and Responsibilities) Act 2002 to create new offences relating to “participation in criminal groups” and new aggravated offences in relation to assault or damage during a public disorder. The Act also gives police further powers to disperse groups and to enter and search premises.

Like many of the reading speeches on law and order, Mr Stewart’s speech contained dramatic assertions that were intended to create fear in the community about “rampant lawlessness”. It included a reference to “significant crime gangs based on common ethnicity. They include Vietnamese and Chinese gangs with a strong involvement in the drug trade, Pacific Islander groups who are specialists in armed robberies, and criminals of Middle Eastern origin who engage in firearm crime, drug trafficking and car rebirthing”

No objective evidence was offered in support of any of these claims and disturbingly ethnicity was being referred to as a cause of criminality, reflecting the prejudice often heard on talkback radio. The fact that these views were expressed in Parliament reinforces the significant influence the media have on politicians in the debate on law and order.

THE LEGISLATION REVIEW COMMITTEE’S REPORT

The Legislation Review Committee published its report in Legislation Review Digest no.10 of 2006. It was concerned that the meaning of “participate in a criminal group”, is unclear and may result in criminal liability for participation in a group, where a person does not intend to advance the criminal objectives of the group as set out in the Act. This means that a motor mechanic who merely repairs a “bike gangs” motorcycles may be potentially convicted without having any intention of assisting the criminal group. This is because the Act significantly departs from the traditional criminal law rules relating to accessory.

Under this Act there is no requirement that the accused must have intended to provide assistance or encouragement to a criminal group. Additionally it isn’t necessary for the prosecution to prove that the accused knowingly or recklessly contributed to the commission of a specific crime.

These are fundamental departures from the requirement in criminal law that an accused is guilty only if they have a guilty mind and intends to commit an offence.

The Legislation Review Committee was concerned that this “lack of clarity” may allow a person to be convicted of the offences of being involved in a gang, which carries a maximum penalty of 5 years imprisonment, on the basis of conduct that is “relatively peripheral to the commission of a minor summary offence by others, where the accused merely foresees that it is possible ( i.e. being reckless) that his conduct will contribute to the occurrence of crime in the future” The Committee concluded that this lack of clarity was in breach of the rule of law principle of “legal certainty”.

With respect to the increase in police powers intended to prevent or control public disorders, the Committee noted that the Act potentially trespasses on the right to peaceful assembly. This is a right established by long custom at common law and also international law. The committee noted that due to the very breadth of the Act’s scope, innocent bystanders will be subject to police powers. Under section 87D, if a police officer believed, for example, that a political protest posed a threat of public disorder, a targeted area could be declared and the protestors could be charged with a criminal offence, if they failed to disperse. It concluded that such a power significantly “interferes with peoples civil rights”.

Despite the significant nature of the concerns raised by the Committee the Act was passed. The political desire to be seen to be “tough on gangs” appears to have outweighed considerations of civil liberties and well established principles of the rule of law.

THE RIGHT TO TRIAL BY JURY?

One of the most significant changes to criminal law in NSW was made with the introduction of the Jury Amendment (Verdict) Bill 2006 which amends the Jury Act 1977 to allow for majority verdicts in criminal proceedings.

The following background was given in the second reading speech by Hon R J Debus MP: “The central aim of this bill is to reduce the number of hung juries in order to achieve certainty and finality to criminal proceedings; it is not necessarily aimed at achieving a greater number of convictions by majority verdict”.

Not surprisingly, the Act received the support of the Director of Public Prosecutions and the Senior Crown Prosecutor of NSW.

The Act provides for the decision of 11 out of 12 jurors or 10 out of 11 jurors to be returned as a majority verdict, if all of the jurors are unable to agree on a verdict after deliberating for a reasonable time (being not less than 8 hours) and the court is satisfied that it is unlikely that the juror will reach a unanimous verdict after deliberation (s 55F).

The Legislation Review Committee noted that the right to trial by a jury for criminal offences is a central plank of Australia’s fair trial guarantees and at the Commonwealth level is guaranteed by s80 of the Constitution.

In Cheatle the High Court considered s2(a)(i) of the Act which provides for the reduction of the jury to a number not below ten in criminal trials. According to the High Court, unanimous verdicts in criminal trials are an essential feature of trial by jury as required by the Constitution. The High Court explained this by stating: “The common laws insistence upon unanimity reflects a fundamental thesis of our criminal law, namely that a person accused of a crime should be given the benefits of any reasonable doubt…A verdict returned by a majority of the jurors over the dissent of others objectively suggests the existence of reasonable doubt and carries a grater risk of conviction of the innocent than does a unanimous verdict” (emphasis added).

The NSW Law Reform Commission in its report 111, tabled in the Legislative Assembly on 9 November 2005, noted that current research suggests that juries required to make unanimous decisions considered the evidence more carefully and thoroughly than juries operating a majority verdict system.

The commission also pointed out that if one or two of those jurors’ views can be ignored because they differ from the rest, then the true significance of the jury as an instrument of peer judgment is lost. The concern over the question of hung juries it observed is not necessarily bad as “disagreement among jurors can force the evidence to be viewed from different perspectives and leads to a more thorough investigation of the issues.”

The ALRC recommend that the system of unanimity be retained and that strategies be developed to assist juries in understanding the jury process better.

The Legislation Review Committee concluded that the Act was in breach of fundamental rights, as the majority verdict trespasses on the right to be presumed innocent until proved guilty.

Despite the significant concerns of both of these bodies, the Act was introduced, radically changing jury trials in NSW and exposing all accused people to a higher likelihood of a conviction.

SEX OFFENDERS

The public outrage that is expressed against child sex offenders means that the legislation dealing with these kinds of offences is the most susceptible to a tough on law and order approach. The Liberal Party has even issued a separate policy document dealing with sex offenders.

The Crimes (Serious Sex Offenders) Act 2006 is arguably the most draconian piece of legislation introduced in recent history. It provides for extended supervision or continued detention beyond the term of imprisonment given at sentencing for serious sex offenders.

The Act enables the Attorney General to apply to the Supreme Court for an extended supervision order (ESO) or a continuing detention order (CDO) against a sex offender, who is currently in custody serving a sentence for a serious sex offence or an offence of a sexual nature.

The Supreme Court may grant the application for an extended supervision order or a continuing detention order if is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence, if he or she is not kept under supervision.

However the Court cannot make a continuing detention order unless it is satisfied that an extended supervision order would not provide adequate supervision.

The maximum term for an extended supervision order or a continuing detention order is 5 years. However the Supreme Court may grant further extended supervision orders or a continuing detention orders upon Application by the Attorney General if it is satisfied that the conditions are met. There is no limit to the number of such orders it can make.

The Legislation Review Committee raised a significant number of concerns regarding this Act, including that it breaches “the basic principles of fairness that have tradionally guided the criminal justice system, that is, that a person should only be deprived of liberty in relation to conduct in which they have engaged in the past – not criminal conduct in which they may engage in the future.

“In Fardon, Kirby J (in dissent) put it as follows: “In this country, judges do not impose punishment on people… for future crimes that people fear but which those concerned have not committed”. [The Act departs from this principle and therefore] “trespasses on personal right and liberties”.

The Committee also noted that the Act exposes individuals to periods of prison detention or community supervision, on a standard which is lower than the traditional test, used to determine whether a person should be punished for criminal conduct, namely beyond reasonable doubt.

The Act also offends against the principle that criminal punishment should not be retrospective. Article 15(1) of the International Covenant on Civil and Political Rights provides that it is not acceptable to “impose a heavier penalty…than the one that was applicable at the time when the criminal offence was committed”

Under the Act a person who was originally sentenced to a finite maximum sentence (eg 15 years) may ultimately end up being imprisoned until they die as the 5 year detention orders can be extended without limitation.

The Committee also noted that freedom from arbitrary detention is a fundamental human right and a fundamental principle of criminal law. The Act breaches this principle by utilising as a central criterion “whether there is a ‘high degree of probability that the offender is likely to commit a further serious offence’… turns on an assessment of risk”. In Fardon, Kirby J suggested that an equivalent Queensland piece of legislation (the Dangerous Prisoners (Sexual Offenders) Act 2003 “ulitmately deprives people…of personal liberty, a most fundemental human right, on a prediction of dangerousness, based largely on the opinions of psychiatrist which can only be, at best an educated or informed ‘guess’.

CONCLUSIONS

The political desire to be tough on crime has had a significant impact on the kind of criminal legislation that has been enacted in NSW over the past decade. The policies announced by both parties continue the trend of more police, more offences and longer sentences. No serious thought has been given to alternatives to prison or methods of improved rehabilitation.

In a desire to offer quick solutions to complex problems, politicians have introduced legislation that significantly undermines the following principles:

  1. The rule of law;
  2. The principles of legal certainty;
  3. Common law right to assembly;
  4. The right to be tried by a unanimous jury which must reach a unaminous verdict for a conviction;
  5. The right to only be sentenced for a crime that you have committed, not a crime you may commit;
  6. The right to be regarded as guilty to the requisite criminal standard, i.e. beyond reasonable doubt;
  7. The right to not be retrospectively punished for a criminal offence;
  8. The principle that you can only be guilty if you have a guilty mind i.e. criminal intention

The statutory bodies that have been created to protect citizens from these significant infringements have raised serious concerns about what has occurred. However it has been demonstrated that our politicians have ignored their concerns for the sake of short term political gain.

Dennis Miralis

Partner

Law and order 2008: A very tough new world

Published:   21 Feb 2008

at:                    http://www.notguilty.com.au/Document-5/Law-and-order-2008-A-very-tough-new-world

Author:        Denis Miralis

Three major criminal law amendments; three reductions in an accused’s former rights.

Dennis Miralis is a partner of Nyman Gibson Stewart in Sydney.

Significant new criminal law amendments made by the NSW Government in 2007 have upset the finely struck balance between community interest and a defendant’s rights that underpins our criminal justice system. The changes flow largely from pre-election promises made during the now all-too-familiar law-and-order auctions that see both the major political parties vying to outdo each with a bristling tough-on-crime posture. Politicians persevere in this stance despite the demonstrated failure of such laws to reduce the rate of major crime and with scant concern for personal rights and liberties.

One shot at bail – The Bail Amendment Act 2007

Just before Christmas 2007, arguably the most radical amendment to the Bail Act 1978 was introduced in NSW. The amendment irrevocably changes the centuries–old principle that a citizen charged with a criminal offence has an unlimited right to ask a court to be granted liberty pending the hearing of their case. This right has been part and parcel of the presumption of innocence, which is one the foundation stones of our criminal justice system.

Under the amendment, a court is now required to refuse to entertain an application for bail by a person accused of an offence, if an application by the person in relation to that bail has already being made and dealt with by a court, unless:

  • the person was not legally represented when the previous application was dealt with, and the person now has legal representation; or
  • the court is satisfied that new facts or circumstances have arisen since the previous application that justify the making of another application.

The new law also prevents further applications being made to a court by lawyers for an accused person, except where the application would be permitted under the above two conditions.

Lawyers will now most likely advise defendants that they should delay making a bail application until they can make the best application possible, given that their right to unlimited bail applications has been removed. Depending on the circumstances of each case, this may mean that defendants could remain in custody anywhere from several days up to several months before an application is made.

No guidance to definitions used in the amendment ¿ prejudicial to defendants

Despite the fact that the Bail Act 1978 deals with citizens’ most fundamental freedoms, Parliament has not defined what will constitute “new facts or circumstances justifying another application”. As a result, the prosecution, which up until now has had no right to be heard on a defendant’s entitlement to make an application for bail (as opposed to whether bail should be granted or refused) will have an opportunity to argue that what is being submitted by a defendant does not amount to “new facts or circumstances”, or does not “justify the making of another application”.

Until there is some binding judicial authority interpreting the phrases, it is possible that the discretion given to magistrates could be exercised in an inconsistent manner, prejudicing the rights of defendants. For example, it is conceivable that while one magistrate may regard the fact that a defendant has spent an extra week in custody since the first bail application, as a “new fact or circumstance justifying another application”; another may adopt a very narrow interpretation, and regard the expression as only relating to whether there is any “new fact or circumstance” in the Crown case that would justify a second application. It is easy to see how a multitude of other potential “new facts and circumstances” will give rise to the same types of interpretative disputes, to the detriment of defendant’s right to be on bail.

The inevitable consequence will be a dramatic increase in the number of remand prisoners, because:

  • defendants will be advised not to make an immediate application for bail, thereby being remanded in custody while the best possible first and only application is prepared; and
  • more defendants will be refused the right altogether to make a second application for bail, keeping them in custody until their hearing.

We are also likely to see defendants being advised to make an unrepresented immediate first application for bail, leaving the option of a second application to be made with legal representation at a later date.

Further presumptions against bail introduced

The Bail Amendment Act 2007 also amends the Bail Act 1978 to create a presumption against bail for certain firearm offences. This is in keeping with the gradual introduction by the NSW Government of presumptions against bail for offences such as drug importation, repeat property offences and riots, as well as the introduction of the more demanding “exceptional circumstances tests” for murder and serious personal violence offences.

The Legislation Review Committee, whose task it is to report to both Houses of Parliament whether a bill trespasses unduly on personal rights and freedoms, was highly critical of the amendments, observing “that all persons who have been arrested and charged have the right to the presumption of innocence. This includes the right to be treated as though innocent.” The committee was also critical of the fact that the legislation is retrospective, as it deems bail applications made before the commencement of the amending legislation as first applications. This will have an immediate impact on all remand prisoners in NSW, despite their not being made aware of the commencement of the legislation.

In his second reading speech introducing the Bill, the Hon John Hatzistergos (Attorney General and Minister for Justice) ignored this criticism and instead focused Parliament’s attention on the fact that “NSW now has the toughest bail laws in Australia” and that “the number of remand prisoners has increased by 20 per cent in the last three years alone and new jails are being built to accommodate the increase”.

The NSW Government seems to have an ambition to make it as difficult as possible for defendants to be granted bail, and to achieve this goal is prepared to remove long–held and cherished freedoms that have been protecting defendant’s rights for centuries.

Almost 30 years after it was introduced, it is almost impossible to believe that in its original form, the Bail Act 1978 was quite liberal and generous in its scope to allow accused persons to be at liberty.

The link between tougher bail laws and the swelling remand population

  • The significant and ongoing amendments to the NSW Bail Act have been identified as a major reason for the increase of remand prisoners. Following the government’s last significant amendment, Bail Amendments (Repeat Offenders) Act 2002, the bail refusal rates rose by:
  • more than 10 per cent for defendants with prior convictions;
  • more than seven per cent for defendants appearing for an indictable offence who have an indictable prior; and
  • more than 15 per cent for defendants who have previously failed to appear in court in accordance with their bail undertaking.

Remanding a person in custody is a serious deprivation of liberty. Inmates awaiting trial theoretically enjoy a presumption of innocence, yet may remain incarcerated for several months, sometimes up to 18 months, before they go to court. On remand, inmates are deprived of any access to rehabilitation program, are often in overcrowded maximum security gaols, are disadvantaged in the preparation of their defence, lose family and community ties, including employment, and are at risk of being seriously assaulted.

Despite the Judicial Commission demonstrating in 2001 that 56 per cent of prisoners held in remand are eventually discharged without a custodial sentence, the NSW Government seems determined to have more defendants removed from the community. In November 2002, the Judicial Commission observed that “refusal of bail not only seriously infringes an individual’s basic liberty, but also has broader ramifications in the subsequent criminal processing of that individual, such as lack of access to legal and rehabilitation resources”. The NSW Government has completely ignored the legitimate concerns raised by the Judicial Commission and the Legislation Review Committee. In doing so, it has fundamentally altered the balance of the criminal justice system at the expense of citizen’s rights.

Do tough bail laws reduce crime ?

The Bureau of Crime Statistics and Research published the results of its pilot study of 189 defendants in the Blacktown and Newcastle Local Courts only months before the new bail amendment was introduced. The study showed that

  • 55 per cent of defendants reported one or more psychiatric disorders;
  • three–quarters of those met the criteria for dependent or disordered substance use;
  • nearly one in three had no education or vocational training beyond year 10 at school;
  • fifty–one per cent had reported having received at some stage in their lives a blow to the head that caused a dazed or confused state;
  • forty–five per cent reported at some stage in their life receiving a blow that caused loss of consciousness;
  • sixty–three per cent were on welfare; and
  • fifteen per cent reported having a gambling problem.

The new amendment to the Bail Act 1978 will not address any of these well–recognised and long–standing social problems that contribute to criminal behaviour. On the contrary, it will add these marginalised individuals into the swelling ranks of the NSW jail remand population, denying them the rehabilitation and professional supervision they require.

Is there a sound policy behind the new bail laws?

During his Second Reading Speech, the NSW Attorney General vaguely explained the reason for the amendments by arguing that “the changes will also prevent what is known as `magistrate shopping’ ¿ the process of going from magistrate to magistrate, or judge to judge, with the hope of obtaining different outcomes”.

Absolutely no evidence was offered to support such a claim. In NSW, criminal matters remain within Local Court jurisdictional boundaries, where often one magistrate sits for consecutive months if not consecutive years. The suggestion that defendants magistrate shop is as inaccurate as it is offensive to those lawyers tasked with protecting the rights of defendant’s. Even more vague was the Premier Mr Morris Iemma’s assertion that the amendments were designed to assist victims of crime by reducing the number of bail applications, as “the victims of crime are forced to relive the events leading up to the arrest of the defendants and endure the continued public attention that these crimes attract”. This is an inaccurate characterisation of what happens daily in NSW Local Court bail applications. Victims are never required to attend, and the standard evidence that is adduced to the magistrate is by way of a police fact sheet outlining the prosecution case.

Given the policy vacuum within which these amendments have been passed, one can only conclude that they are ill–considered responses to political pressure to be seen as the toughest party on `law and order’.

The right to know the case against you under threat

Criminal Procedure Amendment (Local Court Process Reforms) Act 2007

It has always been a principle of our criminal justice system that the prosecution bears the legal burden of proof to the standard of `beyond reasonable doubt’. In practical terms this has meant that apart from some minor offences, the accused was entitled to be served with a brief of evidence containing the material relied upon by the prosecution, in order to properly meet the case against them.

With the passing of the Criminal Procedure Amendment (Local Court Process Reforms) Act 2007, this cardinal principle is radically altered by removing the requirement that a brief of evidence in proceedings for indictable offences (triable summarily) be served before the time fixed for electing whether the offence is to be tried summarily by a magistrate or on indictment by a jury. This means that a defendant charged with a serious criminal offence carrying a significant maximum term of imprisonment will no longer be entitled to know what the evidence against them is before they are required to enter a plea to the charge. Before being allowed to even see the evidence against them, defendants will now be required to make decisions which could potentially mean the difference between serving a maximum of two years imprisonment or a maximum of 14 years.

The Legislation Review Committee noted that the government’s argument that this amendment will affect less than one per cent of defendants does not alleviate the committee’s concerns about the “impact on procedural fairness” created by the amendment.

The amendment also expands (on a 12–month trial basis) the prescribed list of proceedings for which a brief of evidence does not need to be served, further taking away a defendant’s rights to know the complete case against them.

More front line police less procedural fairness

In her second reading speech, the Hon Penny Sharpe, made it abundantly clear that the Bill came about as a result of consultation with the Attorney General’s Department, the Premier’s Delivery Unit and the NSW Police Force. However, there appears to have been no consultation with the stakeholders in the criminal justice system, whose role it is to protect the rights of defendants. The purpose of the Bill, Sharpe said, is to help “the reduction of crime, particularly violent crime” and this is to be achieved by “reducing the bureaucratic burden on police to free up time for front–line activities”.

The NSW Government has a legitimate interest in reducing the paperwork load for police, but at what cost? The Parliamentary Review Committee has concluded that the amendment trespasses on personal rights and liberties by depriving a defendant of the right to know the evidence against them and the case they have to meet. This is clearly too high a cost.

Additionally, the Law Society of NSW voiced concerns that, at a practical level, it would be inappropriate for a lawyer to advise a defendant to plead guilty without seeing the relevant evidence. This would tend to suggest that the Act will have the opposite effect to that intended, and will increase police paperwork due to an increase in the number of not–guilty pleas made in an attempt to ensure that a defendant’s rights are protected.

The NSW Government’s desire to implement a tough law and order policy, which focuses more on front–line police numbers than on procedural fairness, has led to basic principles of justice being brushed to one side.

Special police emergency powers now permanent – Law Enforcement and Other Legislation Amendment Act 2007

Following the Cronulla riots in December 2005, NSW police were given extraordinary new powers designed to allow them to prevent and control large–scale public disorders. They enabled police to close streets with roadblocks, stop and search cars, and close pubs. The legislation also increased penalties for assaults during such disorders, and imposed a presumption against bail for any offences committed.

Section 59A of the Crimes Act 1900 provides a maximum penalty of five years jail instead of the general penalty of two years for assault during a large–scale disorder in situations where no actual bodily harm is caused, and of seven years, instead of a general penalty of five years, where actual bodily harm is caused.

At the time the laws were passed, the NSW Government maintained that the powers would remain in force only for two years, and would expire on 15 December 2007.

Despite a review by the Ombudsman finding that the powers have rarely been used, the NSW Government has legislated to make them permanent. The Law Enforcement and Other Legislation Amendment Act 2007 also gives additional powers to the police to issue directions for a person in a group of three or more seriously intoxicated persons in a public place to leave the place and not return for a period that does not exceed six hours.

The Legislation Review Committee found that the extension of the above powers amounted to a trespass on personal rights and liberties and that the punishment for offences committed during such disorders was excessive. The committee also found that the presumption against bail was excessive.

The ongoing legitimacy of the criminal justice system is derived from the strict observance of some basic principles of fairness which include:

  • the presumption of innocence;
  • the right to make a bail application; and
  • the right to know the case against you.

By implementing its 2007 pre–election promises, the NSW Government continues to undermine these principles at the expense of basic citizen rights.

This article originally appeared in the Law Society Journal www.lawsociety.com.au

Assisting police and ratting on friends – the charge of ‘Conceal Serious Indictable Offence’

Published:      21 Oct 2011

on

http://www.notguilty.com.au/Document-1/Assisting-police-and-ratting-on-friends-the-charge-of-Conceal-Serious-Indictable-Offence

Section 316(1) of the Crimes Act 1900 (NSW) reads:  If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.

For many centuries it has been held as fundamental that every citizen has a moral responsibility to assist law enforcement agencies in bringing crimes to the attention of police and assisting law enforcement agencies to bring offenders to justice.  Without the community’s assistance, many crimes would go undetected an unpunished.  Often it is the decision of the witnesses whether or not they come forward and choose to report offences that they witness.

From the perspective of society at large, we see the value in requiring members of the public to bring serious breaches of law to the attention of police, yet as individuals we admire the strength, courage and conviction of those who step forward and boldly declare that they have seen others commit criminal transgressions.  Needless to say, for some, the question of whether to become a witness for the Crown is a potentially dangerous or deadly decision, due to fear of reprisal from the alleged offenders.  For others, it is a decision that boldly goes against fundamental social realities, such as those who give evidence against their families, friends or loved ones knowing what a drastic effect such evidence may have on their own lives.

Such is the complex state of the law that few people realize that to know or believe that someone has committed a serious indictable offence and have information which might assist police to secure the apprehension, prosecution or conviction of the offender is themselves committing a serious offence.  To so-called ‘conceal’ a serious indictable offence of itself carries a maximum penalty of two years imprisonment.

Society has in some instances recognized the delicate balance that the law needs to find between compelling witnesses to give evidence and allowing them to refrain from doing so in circumstances where society recognizes a special relationship between the witness and the accused.

For example, section 18 of the Evidence Act 1995 allows a spouse, de facto spouse, parent or child of a defendant to object to being required to give evidence as a witness for the prosecution and the court needs to determine this objection on the basis of a complex formula.  This formula takes into account a number of factors and assesses whether or not harm would result to the witness and whether the nature and extent of that harm outweighs the desirability of having the evidence given.

Likewise, section 127 of the Evidence Act 1995 entitles a member of a clergy of any church or religious denomination to object to giving evidence of a religious confession having been made.  As a society, we hold the concept of religious confession so highly that we will not discourage religious confessions by placing them freely for inspection by a court.

But for the rest of us, section 316 of the Crimes Act takes this a large step further, converting what some may see as a “moral obligation” into a legal duty that any person at any time may be forced to perform or else subsequently realize they have been charged themselves with a serious offence.

If you witness a serious assault, if you see someone get robbed, or even if you see people flee a scene where you ‘believe’ an offence may have been committed and have information which ‘might’ assist police, then this piece of legislation operates to charge you unless you report what you do know to police.

Unfortunately, the legislation uses the phrases “knows or believes” and “information which might”, which quite considerably water down what might be needed in order to substantiate a charge of Conceal Serious Indictable Offence.

The word ‘Conceal’ would give most upstanding citizens the idea of ‘cloak and dagger’ pursuits as one person aids in a speedy getaway or sends police dashing down the wrong street, as happens in some poor crime drama.  Yet, the legislation is quite different.  You may be on a bus and witness an assault but you are also late to work so you do not choose to wait for police to give a description of the attacker.  You may be driving down the freeway and see a serious car accident but given others are assisting, you don’t think twice about continuing on your journey.  Both of these examples, in certain circumstances, could give rise to criminal charges against you and amazingly such conduct is characterized as “concealing”.

In a recent noteworthy case, the writer represented a client charged pursuant to s316 with having concealed a serious indictable offence. The indictable offence was a serious assault.  It was clear from the police case, in which evidence of over twenty witnesses and CCTV footage was tendered that our client did not witness the attack and could not possibly have seen who committed the attack.  In hindsight, the police determined through CCTV footage that our client had been seen associating with the persons who had committed the attack both before and some minutes after the attack and drew the inference that therefore he must have “believed” he knew who had committed the attack and knew that that information “might” assist police.  The complexity of section 316 was considered at length in that case.  We were successful in having him found not guilty on the basis that the Magistrate could never be satisfied beyond a reasonable doubt that he actually knew or believed anything about the commission of that attack on the basis of the evidence.

Concealing a serious indictable offence is in itself quite a serious offence, as are related offences of hindering a police investigation and perverting the course of justice.  As we have shown, you could commit the offence and never have a second thought about it.  As much as can be said for the good nature of human beings, it is not every day that bystanders go out of their way to intervene in the commission of serious offences or to bring matters to the police’s attention if they are otherwise occupied.

If you are concerned that you may be in danger of being charged by police in relation to one of these offences, you should not take chances with your future.  You should contact a criminal lawyer immediately and receive legal advice.