Sunday, October 31, 2010

PART THREE-WILLIAM SHAKESPEARE-ATTORNEY At LAW

OCTOBER 31, 2010
Among the most important passages cited by both our authors is one that every reader of Shakespeare will recollect, when it is mentioned to him—Hamlet’s speech over the, skull in the grave-digging scene. But although this speech is remarkable for the number of law terms used in it, only one of them seems to evince any recondite knowledge of the law. This is the word "statutes," in the following sentence:

This fellow might be in’s time a buyer of land, with his statutes, his recognizances, his fines, his double vouchers, his recoveries.
—Act v. Sc.1.

The general reader supposes, we believe, and very naturally, that here "statutes" means laws, Acts of Parliament concerning real estate. But, as Mr. Rushton remarks, (Malone having explained the term before him,) "The statutes referred to by Hamlet are, doubtless, statutes merchant and statutes staple." And "a statute merchant (so called from the 13th Edward I, De mercatoribus) was a bond acknowledged before one of the clerks of the statutes merchant, and the mayor, etc., etc. A statute staple, properly so called, was a bond of record, acknowledged before the mayor of the staple," etc., etc.

Here we again have a law-term apparently so out of the ken of an unprofessional writer, that it would seem to flavor the Attorney and Solicitor theory. But let us see if the knowledge which its use implies was confined to Shakespeare among the dramatists of his time.

In Fletcher’s "Noble Gentleman," a comedy, first performed in 1625, we find a lady, sorely pushed for ready cash, crying out,

Take up at any use: give bond, or land,
Or mighty statutes, able by their strength
To tie up Samson, were he now alive.
—Act i. Sc. 1.

And in Middleton’s Family of Love, (where, by the way, the Free-Love folk of our own day may find their peculiar notions set forth and made the basis of the action, though the play was printed two hundred and fifty years ago) we find a female free-loveyer thus teaching a mercantile brother of the family, that, although she has a sisterly disregard for some worldly restraints, she yet keeps an eye on the main chance:

Tut, you are master Dryfab, the merchant: your skill is greater in cony-skins and woolpacks than in gentlemen. His lands be in statutes: you merchants were wont to be merchant staplers; but now gentlemen have gotten up the trade; for there is not one gentleman amongst twenty but his lands be engaged in twenty statutes staple.
—Act i. Sc. 3.

And in the very first speech of the first scene of the same play, the husband of this virtuous and careful dame says of the same "Gerardine," (who, as he is poor and a gentleman, it need hardly be said, is about the only honest man in the piece,)—"His lands be in statutes." And that poor debauchee, Robert Greene, who [93] knew no more of law than be might have derived from such limited, though authentic information as to its powers over gentlemen who made debts without the intention of paying them, as he may have received at frequent unsolicited interviews with a sergeant or a bum-bailiff, has this passage in his Quip for an Upstart Courtier, 1592:

"The mercer he followeth the young upstart gentleman that bath no government of himself and feedeth his humour to go brave: he shall not want silks, sattins, velvets to pranke abroad in his pompe; but with this proviso, that he must bind over his land in a statute merchant or staple; and so at last forfeit all unto the merciless mercer, and leave himself never a foot of land in England."

Very profound legal studies, therefore, cannot be predicated of Shakespeare on the ground of the knowledge which he has shown of this peculiar kind of statute.

It is not surprising that both our legal Shakespearean commentators cite the following passage from As You Like It in support of their theory; for in it the word "extent" is used in a sense so purely technical, that not one in a thousand of Shakespeare’s lay readers nowadays would understand it without a note:

Duke F. Well, push him out of doors,
And let my officers of such a nature
Make an extent upon his house and lands.
—Act iii. Sc. 1.

"Extent," as Mr. Rushton remarks, is directed to the sheriff to seize and value lands and goods to the utmost extent; "an extendi facias," as Lord Campbell authoritatively says, "applying to the house and lands as a fieri facias would apply to goods and chattels, or a capias ad satisfaciendum to the person." But that John Fletcher knew, as well as my Lord Chief Justice, or Mr. Barrister Rushton, or even, perhaps, William Shakespeare, all the woes that followed an extent, the elder Mr. Weller at least would not have doubted, had he in the course of his literary leisure fallen upon the following passage in Wit Without Money (1630):

Val. Mark me, widows
Are long extents in law upon men’s livings,
Upon their bodies’ winding-sheets: they that enjoy ’em.
Lie but with dead men’s monuments, find beget
Only their own ill epitaphs.
—Act ii. Sc. 2.

George Wilkins, too, the obscure author of The Miseries of Enforced Marriage, uses the term with as full an understanding, though not with so feeling an expression or so scandalous an illustration of it, in the following passage from the fifth act of that play, which was produced about 1605 or 1606:

"They are usurers; they come yawning for money; and the sheriff with them is come to serve an extent upon your land, and then seize your body by force of execution."

Another seemingly recondite law-phrase used by Shakespeare, which Lord Campbell passes entirely by, though Mr. Rushton quotes three instances of it, is "taken with the manner." This has nothing to do with good manners or ill manners; but, in the words of the old law-book before cited,

"is when a theefe hath stollen and is followed with hue and crie and taken, having that found about him which he stole—that is called ye maynour. And so we commonly use to saye, when wee finde one doing of an unlawfull act, that we tooke him with the maynour or manner." —Termes de la Ley, 1595, fol. 126, b.

Shakespeare, therefore, uses the phrase with perfect understanding, when he makes Prince Hal say to Bardolph,

O villain, thou stolest a cup of sack eighteen years ago, and wert taken with the manner, and ever since thou hast blushed extempore."
—1 Henry IV. Act ii. Sc. 4.

But so Fletcher uses the same phrase, and as correctly, when he makes Perez say to Estefania, in Rule a Wife and Have a Wife,

How like a sheep-biting rogue, taken I’ the manner,
And ready for the halter, dost thou look now!
—Act v. Sc. 4.

But both Fletcher and Shakespeare, in [94] their use of this phrase, unusual as it now seems to us, have only exemplified the custom referred to by our contemporary local authority,—"And so we commonly use to saye, when wee finde one doing of an unlawfull act, that we tooke him with the maynour"; though this must doubtless be understood to refer to persons of a certain degree of education and knowledge of the world.

It seems, then, that the application of legal phraseology to the ordinary affairs of life was more common two hundred and fifty years ago than now; though even now-a-days it is much more generally used in the rural districts than persons who have not lived in them would suppose. There law shares with agriculture the function of providing those phrases of common conversation which, used figuratively at first, and often with poetic feeling, soon pass into mere thought-saving formulas of speech, and which in large cities are, chiefly drawn from trade and politics. And if in the use of the law-terms upon which we have remarked, which are the more, especially technical and remote from the language, of unprofessional life, among all those which occur in Shakespeare’s works, he was not singular, but, as we have seen, availed himself only of a knowledge which other contemporary poets and playwrights possessed, how much more easily might we show that those commoner legal words and phrases, to remarks upon Shakespeare’s use of which both the books before us (and especially Lord Campbell’s) are mainly devoted, "judgment," "fine," "these presents," "testaments," "attorney", "arbitrator", "fees," "bond," "lease," "pleading," "arrest," "session," "mortgage," "vouchers," "indentures," "assault," "battery," "dower," "covenant," "distrain," "bail," "non-suit", etc., etc., etc.—words which everybody understands—are scattered through all the literature of Shakespeare’s time, and, indeed, of all time since there were courts and suits at law!

Many of the passages which Lord Campbell cites as evidence of Shakespeare’s "legal acquirements" excite only a smile at the self-delusion of the critic who could regard them for a moment in that light. For instance, these lines in that most exquisite song in Measure for Measure—"Take, oh, take those lips away"—

But my kisses bring again
Seals of love, but seal’d in vain

and these from Venus and Adonis,

Pure lips, sweet seals in my soft lips imprinted,
What bargains may I make, still to be sealing!

to which Mr. Rushton adds from Hamlet

A combination and a form, indeed,
Where every god did seem to set his seal.
—Act iii. Sc. 4.
Now must your conscience my acquittance seal.
—Act iv. Sc. 7.

And because indentures and deeds and covenants are scaled, these passages must be accepted as part of the evidence that Shakespeare narrowly escaped being made Lord High Chancellor of England

It requires all the learning and the logic of a Lord Chief Justice and a London barrister to establish a connection between such premises and such a conclusion. And if Shakespeare’s lines smell of law, how strong is the odor of parchment and red tape in these, from Drayton’s Fourth Eclogue (1605):

Kindnesse againe with kindnesse was repay’d,
And with sweet kisses couenants were sealed.

We ask pardon of the reader for the production of contemporary evidence, that, in Shakespeare’s day, a knowledge of the significance and binding nature of a seal was not confined to him among poets; for surely a man must be both a lawyer and a Shakespearean commentator to forget that the use of seals is as old as the art of writing, and, perhaps, older, and that the practice has furnished a figure of speech to poets from the time when it was written, that out of the whirlwind [95] Job heard, "It is turned as clay to the seal," and probably from a period yet more remote.

And is Lord Campbell really in earnest in the following grave and precisely expressed opinion?

"In the next scene, [of Othello]Shakespeare gives us a very distinct proof that he was acquainted with Admiralty law, as well as with the procedure of Westminster Hall. Describing the feat of the Moor in carrying off Desdemona against her father’s consent, which might either make or mar his fortune, according as the act might be sanctioned or nullified, Iago observes,

Faith, he tonight hath boarded a land carack:
If it prove a lawful prize, he’s made forever;

the trope indicating that there would be a suit in the High Court of Admiralty to determine the validity of the capture"!—p. 91.

Why did not his Lordship go farther, and decide, that, in the figurative use of the term, "land carack," Shakespeare gave us very distinct proof that he was acquainted with maritime life, and especially with the carrying-trade between Spain and the West Indies? We respectfully submit to the court the following passage from Middleton and Rowley’s Changling—first published in 1653, but written many years before. Jasperino, seeing a lady, calls out,

Yonder’s another vessell: He board her: if she be lawfull prize, down goes her topsail.—Act i. Sig. B. 2.

And with it we submit the following points, and ask a decision in our favor. First, That they, the said Middleton and Rowley, have furnished, in the use of the phrase "lawful prize", in this passage, very distinct proof that they were acquainted with Admiralty law. Second, That, in the use of the other phrases, "board," and especially "down goes her topsail," they have furnished yet stronger evidence that they had been sailors on board armed vessels, and that the trope indicates, that, had not the vessel or lady in question lowered her topsail or top-knot, she would them and there, have been put mercilessly to the sword.

But what shall we think of thy acumen and the judgment of a Chief Justice, a man of letters, and a man of the world, who brings forward such passages as the following as part of the evidence bearing upon the question of Shakespeare’s legal acquirements?

Come; fear not you: good counsellors lack no clients.
—Measure for Measure. Act i. Sc. 2.

One that before the judgment carries poor souls to hell.
—Comedy of Errors. Act iv. Sc. 2.

Well, Time is the old Justice that examines all such offenders,—and let Time try.
—As You Like It. Act iv. Sc. 1.

And that old common arbitrator, Time.
—Troilus and Cressida. Act iv. Sc. 5.

No cock of mine; you crow too like a craven.
—Taming of the Shrew. Act ii. Sc. 1.

Bestial oblivion or some craven scruple.
—Hamlet. Act iv. Sc. 4.

By which last line, according to Lord Campbell, (p. 55) "Shakespeare shows that he was acquainted with the law for regulating ‘trials by battle’"!

But to proceed with the passages quoted in evidence:

Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o’er, should undo a man? Some say, the bee stings: but I say, ‘tis the bee’s wax; I did but seal once to a thing, and I was never mine own mine since."—2 Henry VI, Act vi. Sc. 2.

Upon citing which, Ms Lordship exclaims,

"Surely Shakespeare must have been employed to write deeds on parchment in courthand, and to apply the wax to them in the form of seals. One does not understand how he should, on any other theory of his bringing-up, have been acquainted with these details"!

One does not; but we submit to the court, that, if two were to lay their heads together after the manner of Sydney Smith’s vestryman, they might bring it about.

WHO ARE CANADA'S 'FREEMEN'?

Stewart Bell, National Post · Friday, Oct. 29, 2010

HAMILTON, ONT. • When Mika Rasila got pulled over by Niagara police in January for driving his white Pontiac Montana without licence plates, he was ready with a defence: he doesn’t need plates because he’s a Freeman on the Land.

A Freeman on the Land, he explained in a letter he tried to hand the patrol officer through the window, is someone who has revoked his consent to be governed. He has opted out of Canada so the laws don’t apply to him.

It didn’t work.

Police seized his van, arrested him and charged him with six traffic offences, but the incident signaled that the anti-government Freemen on the Land, of which Mr. Rasila is a prominent member, had taken root in Canada.

Across the country, police and officials have been having similar run-ins with “freemen,” also known as “sovereign citizens,” members of a radical movement that does not recognize government authority and consequently refuses to licence their cars, carry government ID or obey police.

“We have thousands of members now,” said Mr. Rasila, who writes on the Freemen of Canada Facebook page, which has over 2,000 members. “We have meetings, we’re fairly organized. They’re very casual, usually just in someone’s living room or we’ll rent a hall.”

Canada’s freemen are a loose collection of true believers, ranging from tax protesters to 9/11 conspiracists to fathers whose children have been apprehended by child welfare agencies. What unites them is their dislike of government.

Self-declared defenders of individual freedom, they are anti-government extremists in the sense that, rather than opposing specific policies, they deny government has any legitimacy at all and want to be left alone to live according to their own rules.

Police aren’t sure what to make of the freemen. Are they harmless fanatics or an emerging domestic extremist group? Although police in Ontario say it’s too soon to tell, they are concerned about the potential for violence and have begun sharing information and circulating intelligence reports on the subject.

“It’s something that we know about, it’s something that we need to know about and it’s something we need to monitor to a degree,” said Sergeant Brian Ritchie of the Hamilton Police Service hate crimes unit.

A freeman is scheduled to appear in court in Toronto in March, but most incidents have been in smaller southern Ontario cities like London and Guelph, as well as in Saskatchewan, Alberta and British Columbia.

“Basically what we’re doing is we’re teaching,” Mr. Rasila said. “We’re not here to recruit people, we’re just educating.” That teaching takes place at small seminars and on the Internet. It promotes an ideology that sounds a lot like conspiracy theory.

Over the past century, the freemen claim, Canada went bankrupt and was taken over by a corporation. Ever since, the government has had no authority to make laws — but it doesn’t want you to know that. “Canada’s been co-opted by criminals,” said Mr. Rasila.

The freemen are not openly racist, although their ideology rests partly on the claim, pervasive in the racist right, that Jews secretly control the world through banking and media ownership.

“You’ve got something that’s a little bit more subtle,” said Rick Eaton, a senior researcher at the Simon Wiesenthal Center in California. “Even though a lot of these groups may be associated with hate groups, they’re very careful.”

Freemen claim Canadians are enslaved by government encroachment but that they know the remedy: anyone can simply opt-out of Canada by severing their “contract” with the government and living instead according to a “common law” enforced by other freemen.

“We have our own police force, we have our own insurance company,” Mr. Rasila said. “But what we don’t have is the compliance of the government, so what they’re doing is they’re sending out their mercenary thugs and their criminal judges.”

Mr. Rasila described his activities as “peaceful non-compliance.” On the Internet, however, he doesn’t always sound so peaceful. A letter he posted on-line warned that “there is in fact a war coming and we the people have had enough.”

A YouTube video shows him throwing knives at a painted gunman while captions advise to “be prepared” because the government has been “co-opted by criminals.” Another post encourages unlicensed gun ownership.

He also claims affiliations with U.S. militias and right wing groups like the Oath Keepers. “It is basically us against the government now,” he said. “If we don’t rein them in then they are just going to take over every possible freedom that we have … I mean if it comes down to defence, we are willing to defend ourselves.”

Asked if he was peaceful, he responded, “I am, yes. But I will defend myself if I have to. I mean, what are we going to do, allow these people to just throw us around? It’s crazy. So we all have to be prepared. We’re not slaves. We are not subject to these laws. We are subject to the laws of nature and the laws of our creator and that’s it.”

How far would he go?

“As far as I’d have to go. Would you allow yourself to be thrown into a cell and be tazed six times when you know this is what happens? Would you?

“I wouldn’t.”

Canada’s new radical right is appearing as groups with an almost identical platform are exploding south of the border. American sovereign citizens groups emerged in the 1970s as an outgrowth of the tax protest movement.

Some turned violent. The 1995 Oklahoma City bomber, Terry Nichols, was a member of the “sovereign citizen” movement. In 1996, an armed standoff between the Freemen of Montana and federal authorities lasted 81 days.

Experts said the movement is booming again, fueled by the economic crash, demographic changes symbolized by the election of President Barack Obama and incitement by political and media figures.

“It’s a kind of perfect storm of factors that are driving the continued growth of radical right wing groups, and the freemen or sovereign citizens are very much a part of that,” said Mark Potok, director of the Intelligence Project at the Southern Poverty Law Center in Alabama.

For his part, Mr. Rasila, a 44-year-old self-employed contractor originally from Windsor, said he was first exposed to these ideas on the Internet. Three to four years ago, he said, he decided to live as a Freeman on the Land.

He stopped registering his van, voided his government ID and cut himself off from benefits such as welfare and health insurance. By doing so, he believes he has withdrawn his consent to be governed.

“Nobody can tell you what to do as an adult without your express consent or permission,” he said. “This is why you need to void all your identification, void all your contracts and just live your life with decency.”

The freemen should concern Canadians, Mr. Potok said. “The thing to realize is that the conspiracy theories that animate many of these people seem absurd to most thinking people and it is hard to imagine them motivating people to violence.

“But the fact is, we have seen time and time again that a certain percentage of the people that start to subscribe to these theories will end up acting out in criminal violence, sometimes as extreme as murdering police officers.”

On May 20, two West Memphis, Ark., police officers were gunned down with an AK-47 after they pulled over a pair of hardcore “sovereign citizens,” Jerry Kane and his 16-year-old son Joe, for what was supposed to have been a routine traffic stop.

There has been no major freemen violence in Canada but police are taking the threat seriously and have been educating frontline officers about the issue. Sgt. Ritchie said while at the moment freemen are mainly an officer safety issue, there could also be long-term law enforcement challenges.

For example, should freemen follow through with their vow to set up their own police and courts, to make arrests and impose sentences, they could be considered a criminal organization. Likewise, those that claim in seminars that Canadians don’t need to pay taxes or debts might be guilty of counseling fraud.

He said nobody should be fooled by freemen beliefs. “Sometimes you wonder if we’re walking on the same planet, have they gone off the edge,” he said. “The Criminal Code is for all Canadians, and the emphasis is on all. They can’t step outside the law, because the law applies to them. If the law is broken, then that will be dealt with under the law.”

So far, the freemen are mostly a nuisance to traffic police and courts. They will put phony plates on their cars that read FREEMAN and argue endlessly with police when they get pulled over.

One of their tactics is to modify their names. Mr. Rasila now calls himself Mika of the family Rasila. Freemen do that to distinguish themselves from their “strawman” — the version of themselves recorded in government records.

If they get arrested, they engage in what has been termed “paper terrorism” — clogging the courts with seemingly incoherent documents that use the quasi-legal jargon recommended by the movement’s leaders.

“It’s growing almost exponentially,” said Derek Hill, a Freeman on the Land from Windsor, “because people are beginning the realize how badly they’ve been conned, quote-unquote, by the government and by the courts.

“They don’t like it. They’re fed up with the government lying to them. They’re fed up with increasing taxes, police brutality, police state, economic downturn, various reasons, which is very similar to what the U.S.A. is experiencing right now.”

Mr. Hill, 23, said he was saddled with $800 a month student debt payments when he went searching on the Internet for a solution and found the lectures of Freeman on the Land guru Robert-Arthur:Menard (note the added colon).

A former Toronto street comic, Mr. Menard wants to build a Freeman Society of Canada with its own justice system and police force but Mr. Hill dismissed comparisons to U.S. militias.

“Some people have guns because they fear for their lives, because when you’re doing these things and you lawfully win, that doesn’t sit easy with cops,” he said.

“And I’ve heard stories that cops actually go in and physically assault them. So some people had to buy guns in order to secure their personal safety. But I personally don’t believe in guns.”

A week before, he was to appear in court in St. Catharines, Ont., on Oct. 19 to face charges stemming from his arrest in January, Mr. Rasila wrote a letter and posted it on his Facebook page.

It called the officer who pulled him over a “mercenary employee of the corporation of Canada” and said Mr. Rasila had cancelled his “contract” with Canada.

“As is with all Freemen in the freemen society of Canada we simply want to be left alone without interference from the state,” it read. “We will not consent to be governed by you.”

Mr. Rasila never showed up in court but the case went ahead without him. He was convicted on three counts — driving without valid plates, driving with a suspended licence and driving while using an electronic device (the video camera he used to record his arrest).

He was fined $1,250 but he says he won’t pay it.

“Never, absolutely not,” he said. “Would you pay a ransom demand if you didn’t have to?” He called it extortion, since the police are still holding his van and the carpentry tools inside.

He said he was moving west.

“I’m just going to continue living my life peacefully,” he said, “and I’m going to continue to educate people.”

Read more: http://www.nationalpost.com/news/Canada+freemen/3748349/story.html#ixzz13v0R9J7N

Friday, October 29, 2010

SECTION 51 OF THE BILLS OF EXCHANGE ACT 1909 PLUS SOME DEFINITIONS OF WORDS ARISING OUT OF THE ACT

You will find this section on Pages 21 & 22 of your Bills of Exchange Act 1909. Costs about $10-15 @ Information Victoria 505 Little Collins St.

Can you see the benefit in this section for dealing with presentments?

51 Excuses for delay or non-presentment for payment

  1. Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate, presentment must be made with reasonable diligence.

  2. Presentment for payment is dispensed with:

    (a)where, after the exercise of reasonable diligence, presentment, as required by this Act, cannot be effected:

    (b)where the drawee is a fictitious person:

    Who is the bill addressed to, whether it's an infringement notice, or, a telephone bill, credit card bill, or the like? Is your name in ALL CAPS a real or fictional person?

    (c)as regards the drawer, where the drawee or acceptor is not bound, as between himself and the drawer, to accept or pay the bill, and the drawer has no reason to believe that the bill would be paid if presented:

    (d)as regards an indorser, where the bill was accepted or made for the accommodation of that indorser, and he has no reason to expect that the bill would be paid if presented:

    (e) by waiver of presentment, express or implied.

Definitions

We will start with the Bills of Exchange Act 1909 Part 1-Preliminary 4 Interpretation of terms Page 1

Bill means bill of exchange

The word 'bill of exchange' is not defined in this section, and, as far as I am aware, within this piece of legislation, so we'll consult Butterworths Law Dictionary for further advice.

Bill of Exchange An unconditional order in writing addressed by one person (the 'drawer') to another (the 'drawee') signed by a drawer, requiring the drawee to pay on demand, or at a fixed future time, a sum of money to a specified person or to the bearer: (CTH) Bills of Exchange Act 1909 s8; Levine v Bank of Adelaide (1875) 9 SALR 119. A bill of exchange is a negotiable instrument. See also Acceptor; Accommodation Bill; Draft; Negotiable instrument.

Those of you that are keen can look up those further definitions in Butterworths or Blacks. There is also some Case decisions for any interested parties.

Bills of exchange legislation Legislation regulating bills of exchange. The (CTH) Bills of Exchange Act 1909 governed all bills of exchange, cheques, and promissory notes until 1 July 1987. Since then, it covers only bills of exchange and promissory notes: (CTH) Cheques Act 1986. See also Bill of exchange; Chalmers, Sir Mackenzie Dalzell; Cheque; Law Merchant; Promissory Note.

Upon checking Blacks Law Dictionary 9th Edition for further clarification.

Bill of exchange. See DRAFT (1).

draft, n. (17c) 1. An unconditional written order signed by one person (the drawer) directing another person (the drawee or payor) to pay a certain sum of money on demand or at a definite time to a third person (the payee) or to bearer. * A check is the most common example of a draft. -Also termed bill of exchange; letter of exchange. Cf. NOTE (1). [Cases: Banks and Banking<--137, 189; Bills and Notes <--1-27.]

Butterworths.

Indorser The person who transfers a negotiable instrument by writing on it, usually by signing its back, and delivering it to the indorsee: for example (CTH) Bills of Exchange Act 1909 s 4. See also Delivery; Dishonour; Indorsee; Negotiable instrument.

Blacks.

Indorser. (18c) A person who transfers a negotiable instrument by indorsement; specif., one who signs a negotiable instrument other than as a maker, drawer, or acceptor.-Also spelled endorser.

Thursday, October 28, 2010

WAKE UP AUSTRALIA

Darryl O'Bryan Community Law Reform Group www.clrg.org

Article taken from “THE NEXT STRATEGY” Volume 1, Issue 1 September 2010

Transcribed by Michael Byers

Our Constitutional rights are being ignored by both Government and the Sovereign People. As a result of our ignorance of the law the Community law reform group was formed to bring those rights to the sovereign people without any obligation.

As a result of the ignorance of the Constitution by the Governments both State and Federal and the general breakdown of our Government obligation to maintain their position as our servants a group of Constitutionalists in 1992 annexed all of Australia's national estate............

We the people still have time for our football meat pies and Holden cars but seriously people we have been taken serious advantage of and it is time to wake up and take a good look at what we can do and what cannot do. Our rights have been laying dormant for too long and the profession that we the people have entrusted with our Consent in the courts have been with holding our rights, “Woe unto you, Lawyers! For ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered.” Luke 11 verse 52. Australia we have been under the rule of lawyers for too long.

That at the time ye were without Christ, being aliens from the Commonwealth of Israel, and strangers from the covenabts of promise, having no hope, and without God in the world” Ephesians Chapter 2 verse 12.

These are 2 quotes from the Holy Bible King James version that are used as a basis for laws that are a part of our rights as shown in our Commonwealth Constitution and the laws that stem from that Constitution.

Vulnerable: Capable of being wounded; liable to injury or criticism; subject to being affected injuriously or attacked; as, a vulnerable nation;” Websters Dictionary.

We research the law and pass that vital message onto those that will listen and increasingly those numbers are growing, safety in numbers.

What is government as this word is misused by all of us. Government is made up of 3 separate tiers each created by the people to serve the people: The Executive made up of the Monarch and the Governor General and the Governors of the States whose job it is to assent to a bill from the Parliament. The Executive only assents to a bill that has passed the close inspection of the Executive against the law of the land.

The Parliament is made up of the Upper and Lower houses or also known as the Senate and the House of Representatives. This is where the elected representatives sit and express the will of their constituents.

The Judiciary is made up of the State and federal courts all putting into motion federal jurisdiction and where the people can challenge any legislation brought forward by the Parliament through the Executive. Juries are the fundamental under pinning of a properly functioning judiciary.

So when we hear our parliament claiming the title “government” this is in a Constitutional sense incorrect. But what we have in this country at the moment is not government as defined in our Constitution, it is by definition a reflection of government relying on your ignorance for its survival.

Federation took place in 1901 having passed the test of referendum and as the Constitutional debates leading up to federation confirm an end to Sovereign Parliaments”.

Well that lasted about thirty years and the parliaments started to claw back their claim to Sovereignty through the Westminster Act 1931 and then the final blow came about in 1986 with the Australia Act. In 1984 we the people voted in a referendum where the question was put, do we approve of the equalisation of powers of the States to that of the Commonwealth, and we the sovereign people said no, the then government ignored a direct instruction from the sovereign people and through the Executive assented to the Australia Act 1986 which took us back to the 19th century and the very reason the Commonwealth Constitution was created, which was to create one set of laws for which all the States are bound by. The Australia Act was a whole new foundation for which States could use to create legislation ignoring the Constitutional requirements and the laws of England. All of course without our permission. In 1991 the federal parliament claimed it as sovereign so therefore completing the web of deception. Legislation began to pour out of these cartels all claiming their right to dismantle our Constitutional rights and our property rights.

Our courts have been eroding for years with the misbehaving beginning around 1927 in South Australia under section 5 of the Juries Act which stopped juries sitting in any civil cases. Of course this is inconsistent with our Commonwealth Constitution and the 2 Acts that are to be read alongside our Constitution, that being the Judiciary Act 1903 and the Acts Interpretation Act 1901. Section 80 of the Judiciary Act 1903 is headed “Common Law to Govern”, and shows by definition that there is no distinction between civil and criminal. Section 80 Commonwealth Constitution brings in juries on indictment against any law of any State and it has been argued by the courts that indictment means criminal.

Indictment is a presentment or what is also known as a “Summons”. The courts created the term “Summary Offence” which they argue is only to be heard by a single justice, of course these offences are the bread and butter of “sovereign parliaments”. Our courts have re-erected “Star Chambers” which are an extension of the sovereign parliament and extend arbitrary decisions based on inconsistent laws that we the people have not given permission to use. Habeas Corpus 1640 section 8

An Act for the regulating of the privy council, and for taking away the court commonly called the star chamber.”

We have not gone forward with governance since federation. We have clearly gone backwards and it is time for we the sovereign people to take charge and make ourselves aware and bring about a government in fear of its people.

JUDICIARY ACT 1903

PAGE 82 DIVISION 2-APPLICATION OF LAWS

79 STATE OR TERRITORY LAWS TO GOVERN WHERE APPLICABLE

The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

80 COMMON LAW TO GOVERN

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.

Wednesday, October 27, 2010

COPS TOP DRUG TEST FAIL RATE

Peter Mickelburough October 27, 2010 Herald Sun
POLICE are failing drug tests more often than motorists or AFL footballers.

Shock new figures reveal three officers tested positive to illicit drugs in the past 10 weeks, with two facing possible criminal charges.

Hundreds more police will be checked in the next few months as the force accelerates its drug and alcohol testing.

Testing program head Acting Insp John Felton told the Herald Sun officers would soon face a better than one in 10 chance of being tested each year.

"To have three (positives) in such a short space of time is disappointing but it also tells me that our approach in intelligence lead testing is sound," he said.

"I have got a focus to undertake as much testing as I can and I have put changes in place to ensure that happens. We've done 200 tests in the past 10 weeks and my focus is to continue driving those sorts of numbers."

In August the Herald Sun revealed the force had conducted just 699 tests in 23 months - at which rate it would have taken 41 years to test all 14,400 police.

The latest officers to fail drug tests were among 200 police tested between July 1 and October 19 - a failure rate of one in 67 tests.

Police have said one in 69 motorists failing roadside drug tests in the first six months of the year was a high strike rate because they had focused on hot spots such as nightclubs, rave parties and truck routes.

The AFL tests all listed players at least once a year, and last year conducted more than 1500 tests, with 14, or one in 112, positive.

Acting Insp Felton said most of the latest tests were random workplace checks but the officers who failed were each chosen because of specific information.

Seven police have now failed drug and alcohol tests, with 899 checks conducted since the force began testing in August 2008.

Acting Insp Felton would not say if any of the seven had worked in units involved in drug investigations or other "high risk" areas, citing privacy.

"The Police Regulation Act forbids me to identify any individuals," he said.

He encouraged officers who had drug or alcohol problems to come forward and get help before they were tested.

The officers who failed the most recent tests were yet to face disciplinary hearings.

Of the officers to fail earlier tests, two have resigned and the other two were disciplined.

Saturday, October 23, 2010

GAVIN SILBERT'S LETTER TO JEREMY RAPKE

SUNDAY HERALD SUN OCTOBER 24 2010
Gavin Silbert

Gavin Silbert wrote a confidential letter to Jeremy Rapke in July. Source: Herald Sun

THIS is the confidential letter Gavin Silbert sent his boss, Jeremy Rapke, on July 19.

Dear Jeremy

Your letter of 29 June has caused me great concern, as it fails to deal with any of the history of the matters which you have raised in that correspondence.

I have no choice but to respond and make clear both the background and the circumstances that have led to this most unfortunate exchange of correspondence.

You have reproached me in your letter for being grossly disloyal and attempting to undermine your standing. I emphatically deny any disloyalty and deny that it was my intention then or at any time in the past to undermine your standing.

As you will undoubtedly recall, I have previously approached you on a private and personal level and indicated to you the concerns that were being expressed by various solicitors in the office of Public Prosecutions, members of the Victorian Bar and the judiciary about your relationship with Ms. Diana Karamicov, particularly considering your then relative positions, you as Director of Public Prosecutions, and she as a junior solicitor. At the time I first spoke to you I was unaware of her name.


I did not enquire of you then the nature of your relationship, but cautioned you as to the general perceptions of that relationship. You continued to associate and spend time with Ms Karamicov in a manner that was markedly different from every other solicitor in the Office of Public Prosecutions. The concerns of the groups of people to whom I previously referred continued unabated and increased, with the passing of time, as stories were then circulated about you attempting to interfere in her career by seeking to have her promoted within the Office of Public Prosecutions, and interfering in an area in which you had no statutory role, attempting consistently to advance her career well beyond that of a solicitor of her experience.

The position of Associate Crown Prosecutor is a public position funded by public monies, and I am, pursuant to s14 of the Public Prosecutions Act charged with managing the Crown Prosecutors and Associate Crown Prosecutors to ensure they function in an effective and efficient manner. I became aware that there was a possibility that you were considering appointing a number of Associate Crown Prosecutors and accordingly I enquired of you on two occasions who you were considering recommending for the position. You refused to tell me. Prior to these three appointments we had always discussed persons you were considering recommending for appointment in Prosecutor's Chambers.

I was concerned that the persons being recommended may have been persons who were unsuitable for the positions, which is what has in fact transpired.

In terms of the position of Associate Crown Prosecutor, the concept is generally speaking that they will be capable lawyers who have demonstrated some skill in the running of criminal trials at a more minor level and who will be given exposure and experience in more complex trials. Neither Ms. Karamicov nor Ms (aifthe Sunday Herald Sun has removed the name of the second lawyer for legal reasons) aifhave ever conducted a criminal trial in the role of counsel or advocate, and there has been nothing demonstrated by either to indicate that they are capable of so doing. The appointment of Mr (aifaifthe Sunday Herald Sun has removed the name of the third lawyer and the rest of this sentence for legal reasons).

There are many talented solicitors within the Office of Public Prosecutions who would make excellent Associate Crown Prosecutors, but they were not afforded the opportunity to apply for these positions.

I was concerned that at some stage your relationship with Ms. Karamicov would become a matter of public knowledge and cause the appointment to be regarded with significant disquiet. The office of Crown Prosecutor is an important office, in which the integrity of the office holders is of the utmost importance, as is the manner of their appointment. Because of my concerns that the appointment of Ms. Karamicov, and indeed the other two appointees, may have damaged that position, I tried to raise the matter with you but you would not speak to me and I had no alternative but to seek information about who was being recommended by your from other sources.

At no stage in my dealing with the Government, the Victorian Government Solicitor, the Solicitor for Public Prosecutions or any of his staff have I commented adversely on your standing, authority or reputation. Your standing and reputation with the solicitors of the Office of Public Prosecutions, Crown Prosecutors, members of the criminal bar and the Judiciary have been undermined by your own persistent actions and behaviour, which have continued and increased over the last two years, despite my warnings.

I was concerned as to whether you had disclosed to the Attorney-General the fact of your relationship and the nature of that relationship with Ms. Karamicov, but did not consider it my role to bring that relationship to his attention.

I reject unequivocally your assertion that there was anything improper in my approaches to John Cain and to the Attorney General. As a statutory appointee charged with specified duties, I maintain my right to approach the Attorney at any time and without reference to you. In each case I expressed my concerns at the proposed appointments based on the lack of qualifications and experience of the appointees. The need for me to make these approaches arose as a direct result of your conduct and your refusal to tell me the names of the three persons you had submitted to the Attorney-General.

Yours sincerely

Gavin Silbert.

DPP JEREMY RAPKE LASHES LEAKERS

HERALD SUN OCTOBER 24 2010
Jeremy Rapke

Jeremy Rapke has called for unity in the Office of Public Prosecutions. Source: Herald Sun

THIS is the full text of an internal memo DPP Jeremy Rapke sent to staff on Friday afternoon.

Mr Rapke has declined several requests from the Sunday Herald Sun to be interviewed over this controversy

I HAVE today become aware that the Sunday Herald Sun intends to publish on Sunday a letter written to me in July 2010 by Gavin Silbert SC, Chief Crown Prosecutor.

It was a personal letter in which Mr Silbert expressed his personal views about my recommendation of three solicitor-advocates as Associate Crown Prosecutors.

There has been a lot of discussion in the media recently about these appointments and I now wish to deal with the reasons that motivated me to make my recommendations to the Attorney-General.

In April 2010 I wrote to the Attorney-General, the Honourable Rob Hulls MP, recommending the appointment of seven persons as Senior Crown Prosecutors, Crown Prosecutors and Associate Crown Prosecutors.


In that letter I provided reasons to the Attorney for my recommendations.

I advised the Attorney that my recommendation that the three solicitors be appointed Associate Crown Prosecutors was part of my commitment to enhance and develop in-house advocacy in the OPP and to provide a recognised career path for solicitors who chose advocacy as a specialisation and excelled in it.

I informed the Attorney that the appointment of the three Associate Crown Prosecutors would significantly augment the ability of Crown Prosecutors Chambers to service my briefing needs, particularly in the Court of Appeal and in the area of specialist sexual offence prosecution.

It was in those two areas that I had experienced briefing pressures.

I was concerned to ensure that I was represented in higher court appeals and sex offence prosecutions by the most skilled and experienced specialist advocates.

I observed that the demands made by the Court of Appeal for ever more detailed and complex data and submissions had stretched my resources to the point that I was then having great difficulty in servicing the Court.

I advised the Attorney that I intended to use two of the three Associate Crown Prosecutors as specialist Court of Appeal advocates whilst also giving them appropriate opportunities to develop their general advocacy skills.

It was my stated intention that, initially, the Associate Crown Prosecutors would work in those areas of specialisation which I identified for the Attorney before developing the skills necessary to conduct trials and more complex criminal litigation.

Suggestions that any or all of the three solicitors lacked the necessary qualifications, skill or expertise to carry out the functions I designated for them are completely without foundation and are malicious.

A panel appointed by the Attorney-General to assess independently my recommendations confirmed the suitability of those three solicitors for appointment as Associate Crown Prosecutors.

The continued public denigration of these three prosecutors is a disgrace and reflects poorly on all who have been involved in the public campaign to undermine their standing and careers.

Further, the personal cost to these three people of their public vilification cannot be underestimated and is so frequently ignored.

One needs little imagination to appreciate how hurtful it must be to them to read in the newspapers of their supposed incompetence and lack of suitability for the positions to which they have been appointed.

The three Associate Crown Prosecutors have my full confidence and support.

Each of them is a fine criminal lawyer and advocate and deserved their appointments.

I call upon all prosecutors and staff of the OPP to rally behind these three prosecutors and to stop immediately the despicable and unwarranted campaign which is calculated to cause so much personal hurt and embarrassment as well as significant damage to the prosecution service of this state.

OPP LAWYERS SAY THEY WILL TESTIFY AGAINST JEREMY RAPKE

JAMES CAMPBELL SUNDAY HERALD SUN OCTOBER 24th 2010
Jeremy Rapke

Jeremy Rapke meets the press to refute claims about his relationship with a junior lawyer. Source: Herald Sun

FOUR Office of Public Prosecutions lawyers have said they will testify about the relationship between their boss, Jeremy Rapke, and a junior lawyer - if an inquiry is ordered.

The staff, furious over the decision by the Director of Public Prosecutions to promote solicitor Diana Karamicov, have independently confirmed their intentions to the Sunday Herald Sun.

The OPP has been in turmoil since July over Mr Rapke's appointment of three solicitors as associate crown prosecutors - a job that pays $140,000 a year.

"People would be lining up to give evidence," one of the lawyers said.

On Friday, Mr Rapke, QC, issued an internal memo to hundreds of staff accusing some lawyers of running a "despicable" campaign against Ms Karamicov and two other solicitors appointed alongside her.

Mr Rapke took the dramatic step after the Sunday Herald Sun told his office the newspaper had obtained a confidential letter from Gavin Silbert, SC, to Mr Rapke written in July.

It appeared yesterday that Mr Rapke's plea to staff and prosecutors to rally behind, instead of calming the situation, had inflamed matters.

"How dare he blame us for what he has done," one OPP lawyer said.

"We're the ones who are suffering because of this," one source said.

"He's the one who has embarrassed the office, not us."

In his letter, dated July 19, Mr Silbert, the Chief Crown Prosecutor, repeatedly accuses his boss of having a relationship with Ms Karamicov.

Mr Silbert also writes that Mr Rapke is interfering in Ms Karamicov's career by seeking to advance her beyond her experience and skills.

He also makes clear his belief that nothing in the three solicitors' previous careers had indicated they were capable of running criminal trials.

Today's publication of Mr Silbert's letter is set to reignite the fight within the OPP, which Attorney-General Rob Hulls is desperately claiming has been defused.

The four OPP lawyers have told the Sunday Herald Sun they believe Mr Silbert's assertion that Mr Rapke spent time with Ms Karamicov in a manner "markedly different from every other solicitor in the Office of Public Prosecutions" is correct.

They have said that, if called on, they could testify:

THAT Mr Rapke and Ms Karamicov were frequently alone together in his office late at night.

SOLICITORS who briefed Ms Karamicov complained they were afraid to criticise her because they feared she would complain about them to Mr Rapke.

THE relationship between Mr Rapke and Ms Karamicov was one of the reasons why the previous solicitor for public prosecutions left her job in May 2008.

The Brumby Government has ruled out an inquiry.

This month, Mr Rapke told broadcaster Jon Faine that he did not have a sexual relationship with Ms Karamicov, but refused to answer on Friday when asked if he had had a sexual relationship with her in the past.

The conflict inside the OPP has been the subject of rumour and innuendo in the legal district for months.

"He (Mr Rapke) is acting as though this is just something inside the office - it's not, it's the talk of Lonsdale St," one source said.

Victorian Government Solicitor John Cain, who interviewed the solicitors after concerns about their appointments as associate crown prosecutors were raised with Attorney-General Hulls, declined to answer questions about Mr Silbert's letter.

Mr Hulls also declined to answer questions.

Opposition Leader Ted Baillieu called on Mr Hulls to order an inquiry.

"There must now be an investigation extending not only to what has gone on in the DPP's office, but also to what Rob Hulls knew and when, and what his role has been in attempting to cover up this crisis," he said.

campbelljam@heraldsun.com.au

Sunday, October 17, 2010

TIME FLAWS WITH TRAFFIC CAMERA INFRINGEMENT NOTICES

The following information highlights a systemic failing within Victoria's judiciary. In particular, that of the Traffic Camera Office who tampers with, alters and falsifies Traffic Camera Offence evidence and in doing so, prosecute motorists under a false pretence of fact on the Traffic Infringement Notices they issue.

The Approximate Time of Offence is the matter I bring to your attention.

1. Victoria's Infringements Act 2006 SECT 13 states:

Forms of infringement notice;

An infringement notice must- (a) be in writing and contain the prescribed details.

2. Victoria's Infringements (Reporting and Prescribed Details and Forms) Regulations 2006 SECT 8 states:

Infringement Notice (1) For the purposes of section 13 of the Act, the prescribed details which an infringement notice must contain are- (g) the date and approximate time and place of the infringement offence alleged to have been committed.

Speed and red light cameras record the time of offence in 24-hour clock system format. This format is to International Standards 8601 and was adopted by Australian Standards in 1989. The current Australian Standard is;

AS ISO 8601 – 2007

Australian Standard

Data elements and interchange

formats-Information interchange-

Representation of dates and times

Pages 15 & 16 of the Standard reads;

4.2 Time of day

This International Standard is based on the 24-hour time keeping system that is now in common use. In expressions of time of day

- hour is represented by two digits from [00] to [24]. The representation of the hour by

[24] is only allowed to indicate the end of a calendar day, see 4.2.3.

- minute is represented by two digits from [00] to [59].

- second is represented by two digits from [00] to [60]. The representation of the second by [60] is only allowed to indicate a positive leap second or an instant within that second.

4.2.2.2 Complete representations

When the application identifies the need for an expression of local time then the complete representation shall be a single numeric expression comprising six digits in the basic format, where [hh] represents hours, [mm] minutes and [ss] seconds.

Basic format: hhmmss Example: 232050

Extended format: hh:mm:ss Example: 23:20:50

Digital speed cameras record time in the extended format of the Standard.

-Victoria's Evidence Act 2008 – SECT 185 (Full faith and credit to be given to documents properly authenticated)

[hh:mm:ss] hh is the number of complete hours that have passed since midnight, mm is the number of complete minutes since the start of the hour, and ss is the number of complete seconds since the start of the minute. Example: 23:59:59 represents the time one second before midnight.

Serco Traffic Camera Services along with SGS Australia are contracted to operate and maintain Victoria’s speed/red light camera network. When an offending vehicle is detected by a digital speed camera, information such as; location of camera, speed limit, speed of vehicle, direction of vehicle’s travel, date and time of day is captured/recorded and stored on a ‘data bar attached to each and every photograph. Wet-film camera's record on a 'data block'. The Gatsometer digital speed data bar provides 17 absolute data elements relating to the offence, superimposed in the picture at the time of the offence inside the camera itself. The data bar and image are treated as one co-joined component as they are transmitted in encrypted format to a data processing center, i.e. Serco. This information is encrypted to avoid tampering with or manipulation of data, safeguarding the evidentiary chain. When these devices record time, it is done to International Standards 8601, that being; [hh:mm:ss] hours, minutes, seconds, each containing two digits. This information is downloaded electronically by Serco, then transcribed by a prescribed process which converts the recorded information and in particular; time of offence from 24-hour clock format to 12-hour clock format, i.e. Example [13:30:00] is recorded then converted to [1:30:00] with a PM (Post Meridiem) symbol placed along side the numerals thereafter. This transcribed information is attached to a copy of the photographic image and replaces the information contained/recorded on the original Speed data bar. The transcribed offence data with photograph is then forwarded to the Traffic Camera Office at 277 William Street for assessment.

Under ‘Fixed freeway speed cameras; Fixed radar’ section on the Victorian Justice Department website www.justice.vic.gov.au it claims;

Each photograph is subjected to rigorous verification processes before it is authorised by Victoria Police as a valid infringement.

Initially, each photograph is assessed by a qualified and trained verifications officer. A second officer then reviews the decision.

Prior to any infringement being issued, each camera session is reviewed and authorised by sworn police officers of the Victoria Police Traffic Camera Office.

The Traffic Camera Office creates Traffic Infringement Notices from information contained within the offence photograph forwarded to them by Serco. The Traffic Camera Office falsifies the time of offence on its notices by using leading zeros where they shouldn’t. By doing so, Australian Standards 8601 is contravened and the time misconstrued, i.e. 01:30 is the 1st hour + 30 minutes of a new day, or 1 hour + 30 minutes past midnight. 01:30 is and can only be AM, not PM. The Traffic Camera Office ignores explicit information Serco provides them with, i.e. the 24-hour notation transcribed to the 12-hour notation correctly by a prescribed process without leading zeros.

Queensland, Western Australia, South Australia, Northern Territory and Australian Capital Territory all abide by Australian Standards 8601 and use the 24-hour notation on their speed/red light camera Traffic Infringement Notices.

-Victoria's Evidence Act 1958 – SECT 77 (Australasian States and their Acts to be judicially noticed)

Tasmania converts the 24-hour notation to the 12-hour notation correctly on its Speed Camera Traffic Infringement Notices. They do not use leading zeros.

The United Kingdom also use the 24-hour notation.

-Victoria's Evidence Act 1958 – SECT 76 (Acts of Parliament of the United Kingdom to be judicially noticed)

Victoria and New South Wales mix a combination of 24-hour with 12-hour notations on their speed/red light Traffic Infringement Notices ignoring both Australian Standards 8601 and transcribed evidence, i.e. the Approximate Time of Offence on Infringement Notices between 'alleged' times of 01:00PM and 09:59PM are incorrect, false and indeed non-existent due to leading zeros only recognised and used in the 24-hour clock notations AM cycle. That said; the 24-hour notation doesn't use or recognise AM/PM symbols. (Refer Deciphering Time! document)

As a result of this ignorant, yet obvious oversight; Police Officers within Victoria’s Traffic Camera Office along with Civic Compliance Victoria and certain divisions within the Justice Department have committed and clearly breached the following;

AS ISO 8601 – 2007 Australian Standard

Infringements Act 2006 - SECT 167 Offence to give false information

Evidence Act 1958 - SECT 137 Penalty for falsely recording evidence

Crimes Act 1958 - SECT 82 Obtaining financial advantage by deception

“ “ SECT 83A Falsification of documents

“ SECT 181 Aiding and abetting offences within or outside Victoria

“ “ SECT 314 Perjury

“ “ SECT 320 Perverting the course of justice

“ “ SECT 321 Conspiracy to commit an offence

“ “ SECT 321G Incitement

I have been informed by the Justice Department that offences can be reheard by a Magistrate if desired, even though considerable time has elapsed since the alleged initial offence and payment of penalty has taken place.

If a current/outstanding Infringement Notice were contested, the Magistrate has; Power to amend where there is a defect or error under Victoria's Magistrates’ Court Act 1989 – SECT 50

Magistrates don’t receive copies of motorists Infringement Notices from the Traffic Camera Office when hearing proceedings. Magistrates are forwarded relevant details including the time of offence in a correct format and hence; don’t see or even realise motorists are being prosecuted under a false pretence of fact on Traffic Infringement Notices issued by the Traffic Camera Office.

If a Magistrate corrected an Approximate Time of Offence on a notice by eliminating the leading zero, it would be an admission of liability and open a ‘Pandora’s box’ of litigation from motorists who have been falsely prosecuted in the past by the Traffic Camera Office. The problem with false times goes back more than six years, possibly even ten. The amount would equate to around half of all Traffic Camera Infringement Notices issued. As such, the penalty amounts plus accrued interest and demerit points will have to be refunded to all parties affected. This will run into billions of dollars. Re-issuing corrected Notices beyond 12 months cannot occur under Victoria's Magistrates Court Act 1989 – SECT 26 subsection (4) a proceeding for a summary offence must be commenced not later than 12 months after the date on which the offence is alleged to have been committed.

Motorists alleged to have committed offences within the past 12 months may be ineligible for recompense. The Traffic Camera Office could refund monies/demerit points illegally taken, then reissue with corrected Infringement Notices. Never the less, the Traffic Camera Office and in particular; Issuing Officer: ‘Officer in Charge’ are subject to Indictable Offences. Prosecution is the best course of action in order to get recompense for all parties affected. Reimbursement is likely with pending prosecution plus the loss of public confidence and trust with Victoria’s Traffic Camera system.

The following statements by Victoria Police Deputy Commissioner Ken Lay were made to the Herald Sun and The Age newspapers in November 2009 with regard to Sergeant Mark Ashton, a Victoria Police sergeant sacked for issuing speeding drivers with smaller fines than the law required. According to Deputy Commissioner Lay, Sergeant Ashton had been maintaining the practice for the last 10 years and he had no choice but to sack Sgt Ashton, who had misrepresented facts in documents. (The very thing the Traffic Camera Office have been doing)

Statements made in the Herald Sun by Deputy Commissioner Lay;

- He had no choice but to sack a police officer who allegedly falsified speeding fines.

- Deputy Commissioner Lay said the allegations were not trifling.

- He said he had no choice but to sack Sgt Ashton, who had misrepresented facts in documents.

- They (the public) don’t expect them to falsify documents.

Statements made in The Age by the Deputy Commissioner;

- The officer had recorded incorrect details on at least 250 tickets in the past year and had admitted continuing the practice for the last 10 years.

- Information recorded in traffic infringement notices is considered to be evidence and is intended to be presented in court.

- By recording incorrect information on these notices, the sergeant has knowingly attempted to pervert the course of justice and has allowed offenders to escape the appropriate penalty that they rightfully deserve.

A police spokeswoman said the officer had been dismissed following an Ethical Standards Department investigation into allegations of misconduct and perverting the course of justice.

Deputy Commissioner Lay said in his statement that after several discussions with the member involved, he was not confident the sergeant understood the consequences or the seriousness of his actions, nor had he displayed a willingness to comply with policy guidelines in the future.

If only Deputy Commissioner Ken Lay applied his upstanding principles to the Traffic Camera Office...???
Safe motoring.

Truth Machine.