It is sometimes said in the law that nothing generates hard work and legal ingenuity more than a costs application.  This week the wigs examine a recent decision that was keenly awaited by the criminal law community in NSW. Rodden v R 2023 a decision of the nsw court of criminal appeal. Mr. Rodden was acquitted of murder and his lawyers sought a certificate under the costs in criminal cases act that would have allowed legal aid nsw, who funded his defence, to recover substantial costs incurred in the trial. The first instance judge refused the application, holding that the Act only allowed a certificate where the individual accused had personally incurred costs. This was contrary to the long standing understanding and functioning of the act and in tension with high court authority that states the legally aided status of an accused is generally disregarded in costs matters. The decision was appealed and the decision set aside with the court holding it was no bar to an application being granted that an applicant had not personally incurred the costs. As said, the judgment was keenly awaited. Legal Aid had at stake its institutional interest in recovering such costs certificates and many lawyers had at stake a direct financial interest, because legally aided lawyers recieve a significant uplift in fees in legally aided matters when they secure such a certificate. Unsurprisingly the case was a well argued matter and the judgment is an interesting journey through appellate jurisdiction in NSW and the policy issues at play in costs in criminal proceedings. Now, on with the show!

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This week the wigs examine the federal government’s proposed Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill. 

The draft Bill released by the Albanese government proposes a method to combat the phenomenon of Misinformation and Disinformation, said to be a growing and pressing problem accompanying the explosion in social media and the internet more broadly.

The draft Bill has sparked a national conversation around free speech and the extent of the harms posed by false information. 

Human Rights Commissioner Lorraine Finlay posed the issue this way in an op-ed in The Australian on Thursday 24 August 2023.

"Despite being labelled the “word of the decade” in 2021, fake news is not a modern phenomenon. Misinformation has been spread for political gain since Octavian used fake news to discredit Mark Antony in ancient Rome. What is different today is the way modern technology makes it easier to spread fake news around the world but harder to distinguish fact from fiction. Misinformation and disinformation can have devastating effects on human rights, social cohesion and democratic processes. Australia needs to address these risks. But this needs to be balanced with ensuring we don’t unduly affect freedom of expression".

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Welcome to a special "recorded live" episode of the wigs! 

The Wigs were invited to attend and live record an episode at the Australian Criminal Law Congress 2023 in Byron Bay. Emmanuel and Jim were unfortunately unavailable, so Felicity and Stephen teamed up with guest wig NSW Public Defender Paul Coady to live record the episode before an audience of lawyers from across Australia. The topic for the episode is "Reform of public criminal prosecutions in Australia, the Sofronoff Inquiry and its aftermath". Felicity Stephen and Paul discuss the key issues and findings of the inquiry and work through what its implications might be. The Conference was hosted by Hugo Law and the keynote speaker was Justice Edelman of the High Court of Australia. A big thank you to Hugo Law and particularly Karen Espinar for reaching out with the invitation. The conference was a big success and The Wigs encourage listeners to consider the conference in future years. A big thanks also to Paul Coady for being a guest wig. A bit about Paul. He began his legal career as a commercial solicitor at Clayton Utz, but turned toward criminal law after an internship with the Innocence Project in New Orleans. He has been at the NSW Bar since 2008 and was appointed a public defender in 2018. 

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This week the Wigs return to the topic of the prosecution's duty of disclosure in criminal matters.

Felicity recently presented at a criminal lawyers conference on the topic and took the opportunity to survey the hundreds of attendees on their experience of disclosure in criminal matters. 

The results were disturbing and are further evidence of the systemic problem in the state of NSW when it comes to the state complying with its legal obligations of disclosure, being the basic obligation of the police and prosecution to disclose all evidence that might possibly assist the accused in conducting their defence.

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In this episode, The Wigs discuss a massively controversial recent decision of the US Supreme Court in which the so-called conservative "super majority" struck down as unlawful affirmative action on the basis of race in university admissions. The case is known as Students for Fair Admissions v Harvard and involved two separate cases one involving Harvard, the other the University of North Carolina. The wigs discuss the 14th amendment, the impact of affirmative action, the long-standing legal test for affirmative action as an accepted derogation from the 14th amendment known as "strict scrutiny" and why the majority said the test wasn't met and the practices unlawful. The Plaintiff 'Students for Fair Admission' or SFFA  brought the case on behalf of a group of Asian Americans denied entry to university in the context of affirmative action policies they alleged had worked against them. SFFA describes itself on its website as, "a nonprofit membership group of more than 20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional. Our mission is to support and participate in litigation that will restore the original principles of our nation’s civil rights movement: A student’s race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university".

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In this week's episode the wigs discuss possibly the most momentous and controversial criminal case in American history, the indictment of Donald Trump by special counsel Jack Smith for his efforts to overturn the 2020 US election. The Wigs discuss the three offence creating provisions, some of the facts underlying the allegations and the overall merit in prosecuting a former president in what is and will surely continue to be, a hugely divisive prosecution in a hugely divided country. Is this divisivenessa reason to not prosecute, or indeed a further reason to prosecute? Will this indictment protect American democracy or take it further into the abyss. Interestingly just days after this episode Trump was indicted again, this time by a DA in Georgia along with lawyer Rudy Giuliani and 17 others on a fourth series of charges, again relating to attempts to subvert the 2020 election in Georgia. Now on with the show.

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This episode consists of a special interview with the Wigs new India Correspondent! Siddharth Narrain is an Indian lawyer, journalist and academic and lecturer in law at the Adelaide University. He and Stephen sat down for a chat about Sid's career, the Indian legal system, cases Sid has been involved in, the Indian media scene, human rights in India including freedom of religion and much much more. The episode was recorded last year but we think it has stood the test of time.

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In this episode, the Wigs examine quite a topical legal issue. 

What are the laws around what can be done with documents that are produced to parties to litigation under court orders such as subpoenas?

In short - the law in some places provides that such documents are confidential unless they are admitted as evidence in the case 

and that parties or others who obtain the documents commit contempt of court if they leak them with knowledge of their origins. 

The Wigs discuss the case of Harriet Harman, an activist lawyer in the UK, and later a member of Parliament, who was found guilty of contempt of court for providing documents to a journalist, as well as some Australian cases on point.

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In this episode, the wigs discuss a new decision of the district court of NSW Reeves v State of NSW 2023 NSWDC 196. 

The Plaintiff, Mr. Reeves, sued the state of NSW for malicious prosecution and false imprisonment following the dismissal of a stalking charge against him. 

While he failed to prove the prosecution was malicious or that his arrest had been unlawful, he did succeed with a relatively novel claim of false imprisonment. 

Judge Abadee found that the actions of the police in transferring him into a police interview room, in circumstances where he had expressly declined to be interviewed, led to false imprisonment for the period of the unwanted interview. 

The wigs draw on their experience in litigating issues of unlawful arrest, false imprisonment, and unwanted police interviews to analyse the case and related issues. 

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In this episode the Wigs look at a fairly recent case of Jackmain (a pseudonym) v R [2020] NSWCCA 150 which raises the issue of what happens when a sexual assault complainant has a history of making false sexual assault claims. Currently in NSW such false allegations can't be used by an accused to defend themselves at trial. For decades the law has maintained that a jury simply cannot be told the complainant has previously made similar false allegations because of a provision introduced to protect sexual assault complainants from humiliating and improper cross examination about their sexual history. 

In Jackmain, the accused faced a number of sexual assault charges which he said were fabricated by the complainant against him. 

The NSW Court of Criminal Appeal confirmed that the law in NSW prevented him from using the complainant’s tendency to fabricate sexual assault allegations in his defence but did hold that a trial court in such a case has a power to stay the proceedings as an abuse of process. 

The Wigs discuss the practical, policy and human rights implications of this law and examine the case for legislative reform.

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