As a young man, like so many of my friends, I had an informal profit-à-prendre (in gross) over large tracts of land in Sydney, from which I took natural resources, wild game and briefs. After a time of this carefree existence I decided I needed to establish a more formal base for my burgeoning legal practice. It was this desire for a possessory interest in land that inspired me, in the late 1940s, to turn the first sod on the ground that later would become Albert Bathurst Piddington Chambers in Phillip Street. At the time, the standard rental arrangement with the James McGirr New South Wales State Government was that if you cleared any land south of Bridge Street you could rent it for 20 years for a literal peppercorn (being highly sought-after at the time for their laxative qualities).
As you can imagine, the gross margin my Practice ran at in those heady days of free rent and relentless lawsuits over Victoria’s controversial success in the 1947 Claxton Shield was the envy of legal practitioners the world over.
Unfortunately since that time, through a slow and pernicious creeping death of incremental hikes, the rent on my chambers has now reached astronomical proportions. These days I am literally living hand to mouth while my landlord grows fat off the fruits of my labour. This situation has become untenable and it is for that reason that I am pleased to announce I have engaged my dear friend and regular New York gubernatorial candidate James McMillan as the collective bargaining agent for the Barristers of Piddington Chambers to take up our noble cause against Barristers' Chambers Limited in our forthcoming rent review.
Showing posts with label Destruction of Wild Dogs Act. Show all posts
Showing posts with label Destruction of Wild Dogs Act. Show all posts
Thursday, October 28, 2010
Tuesday, September 21, 2010
Carry on Whitelocke, Openly
Way back in the 1950s, long before vacuum cleaners and Dr Phil ruined the work ethic of domestic help throughout Australia, Sydney was a very different place. A largely lawless and agrarian city (much like modern day Adelaide), a good portion of the city was covered by a mixture of ambitious pastoral lands and dense virgin bushland, teeming with abundant wildlife. Whilst scurrying from chambers to Court it was by no means unusual to encounter wild, lawless men or even game such as the nail-tailed wallaby or the ever-aggressive Green and Golden Bell Frog on one’s way to Court.
it was by no means unusual to encounter wild, lawless men…
For the obvious reasons it was essential to be heavily armed at all times.
In time, our habit of bearing arms for personal protection developed into the genteel practice of barristers carrying ornate pistols on their hips* at all times. In these stylish and practical days the seniority of a barrister could instantly be ascertained by the make and calibre of the pistols he carried and easy laughs could be had at the expense of the many, many barristers with ‘double barrelled’ surnames! King’s Counsel would wear Colt .45s with carved ivory grips and were always accompanied by a small team of specially trained juniors to carry and operate light artillery on their behalf.
Having become so accustomed to being “packing heat” whilst striding about Philip Street, I was shocked to learn that this practice had fallen into disuse in many overseas jurisdictions**. Imagine my astonishment when, in the mid 70’s I attempted to bring a semi-automatic rifle and a decorative stock whip to a party hosted by Nelson Rockefeller and Henry Kissinger (for then president Gerald Ford) only to be subject to the outrageous indignity of being asked to leave these essential parts of my carefully considered outfit in the cloakroom. Luckily enough, the furious and wide ranging tirade I unleashed at the doorman, which traversed the Constitution, Boilermakers (I persuasively argued that Geoff the Doorman was improperly acting as a Chapter III court), Magna Carta, the FIFA Laws of the Game, the Destruction of Wild Dogs Act and the Gentoo Code, was overheard by the vast majority of America’s right wing intellectual establishment who, moved by the jurisprudential perspicuity of my arguments, focussed the furious power of their legal learning into the matter. It soon became accepted that the Second Amendment of the American Constitution ensured a right for all citizenry to not only bear arms, but to be able to do so openly and without fear of molestation from the long arm of the law. Over time, my principled stand on that steamy day in October became known as the genesis of the “Open Carry” movement.
Before long, the Open Carry movement swept America, returning the country to the golden days of the 1820s where every citizen openly bore arms and all interpersonal disputes were settled quickly and decisively. I consider the opening scene in “the Last Boy Scout”+ to be the high watermark of this movement, a cinematic moment inspired by the short period I coached Little League Grid Iron in Oakland, and regularly encouraged my players to Open Carry during playoff games.
Thanks to me, Americans, unlike Australians, can buy coffee in safety.
An Open Carry fishing trip on Lake Michigan
Sadly the liberties protected by the Open Carry movement have not found widespread acceptance in Australia. These days, it is regularly said that the right to bear arms is as ridiculous as the right to arm bears. This statement continues to be patently wrong and was made many years before my successful program of conscripting and training koala bears to patrol mosman, protecting it against the tide of Catholic boat people that would otherwise overwhelm it. Unfortunately neither major party included Open Carry as a major policy item at the last election, and in the many drafts of the proposed Bills of Rights for Australia I have criticised, I am yet to see Open Carry receive even the most cursory of recognition. No wonder our country is in such a state.
Of course, being the wag I am, although I am no longer permitted to Open Carry firearms in Court, I continue to follow the principles of the movement in my own way. The most obvious manifestation of this is my habit of ‘Open Carrying’ prerogative writs. Rarely will you see me in public without an openly displayed blank writ of mandamus sticking out of my belt. The threat is essential. Prevention is better than cure.
* Ironically, in 1992 my impulsive decision to fire one of these pistols at Young J proved the inspiration behind the introduction of the metal detectors in the New South Wales Supreme Court. A further erosion of the right of Open Carry in Australia.
** Not, however, in Indonesia where the colourful gun toting barrister Paris Hotman Hutapae remains the paradigm of a modern warrior/scholar man of the law.
+ when a troubled footballer who knows his rights opens fire on his rivals as they try to tackle him.
Sunday, May 9, 2010
Extract from Journal Article
After briefly mentioning it in a recent “blog”, I have received a number of requests to post my famous article 'When is a dog wild? Semantics again triumph the spirit of the law' TB Whitelocke KC 24 AltCrimJ 7 - 125.’
While, my agreement with the publisher at the Alternative Criminal Law Journal forbids me from reproducing the entire work, I have posted an extract below (pages 84-86) which should sate the ravenous appetites of the countless hordes looking to nuzzle on the teat of my wisdom. For those who, understandably, want more feel free to contact me at Albert Bathurst Piddington Chambers and I will happily recite the entire article to you by heart. You must not take notes and should set aside between four and five hours.
* * * * *
.....In Hardman v Director of Public Prosecutions (NSW) [2003] NSWCA 130 (29 July 2003), it was noted that in McKenzie v Stratton [1971] VR 848 the defendant, who was, like me on so many occasions, charged pursuant to the Summary Offences Act 1966 (Act), although in his case in relation to allegedly being drunk and disorderly in a public place. In that decision, Nelson J commendably found that a person found in a taxicab in a car park was found in a public place, namely, the car park.
I want to make it abundantly clear that I have never shot any animals whilst in a taxi-cab. In fact, I have never been in a taxi-cab at all. Once again, I cannot over-emphasise the fact that I was on horseback and was merely a non-insane automaton, acting without any awareness whatsoever of my own actions. How can a veritable zombie, moved solely by an uncontrollable and primordial desire, be asked to pay ten (10) penalty units? More on that nonsense that later. For now it is appropriate to reflect on the injustice of the fact that this is not the first time I have been charged under this section (in addition to my many many brushes with other sections of the Act, particularly sections 11H: Intimidatory use of vehicles and vessels and 27N: No personal liability for person conducting search under direction of correctional officer) a great many times. Therefore, it is critical that you, the reader, focus on the patent absurdity of this rule, in order to ensure that noble sportsmen in the future who, unlike me on that tragic afternoon, are actually aware of their actions are not held to account by this spurious regulation. By way of background, the actual text of the section I am deemed to have offended is as follows:
28J Offence of hunting on private land
(1) In this section:
"animal" means any vertebrate animal but does not include a fish within the meaning of the Fisheries Management Act 1994 .
"hunt" an animal includes search for, pursue, trail, stalk or drive out the animal in order to capture, trap, harm or kill the animal.
"occupier" and "owner" have the same meanings as they have in the Rural Lands Protection Act 1998 .
"private land" has the same meaning as it has in the Rural Lands Protection Act 1998 .
(2) A person who, without reasonable excuse (proof of which lies on the person) enters private land and hunts for any animal on the land, without the consent of the owner or occupier of the land, is guilty of an offence.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(3) Without limiting subsection (2), a person is taken to have reasonable excuse for the purposes of that section if:
(a) the person did not know that the land was private land, or
(b) the person is an Aboriginal person:
(i) who is a member, or in the company of a member, of a Local Aboriginal Land Council and who is undertaking traditional cultural hunting within the area of the Council in accordance with a permit issued under section 48 of the Aboriginal Land Rights Act 1983 , or
(ii) who enters the land and hunts an animal pursuant to a native title right or interest that is the subject of an approved determination of native title or of a registered native title claim, or
(c) the person enters the land and hunts animals in accordance with a duty imposed on the person under the Rural Lands Protection Act 1998 or the Wild Dog Destruction Act 1921 to suppress and destroy the animals, or
(d) the person is of a class, or enters the land and hunts in the circumstances, prescribed by the regulations.
I will deal with whether the deceased animal was a vertebrate, whether the property had an “occupier” and whether I knew the land was “private” in great detail later. For now, I will concentrate on the unavoidable conclusion that I was under a fiduciary duty to destroy the animal.
In coming to this result, one simply is unable ignore the axiomatic statement of my intellectual forebear Charles Dickens “There is a passion for hunting something deeply implanted in the human breast.” No human breast is more passionate than mine. As I famously said in 1948 (although this quote is often wrongly attributed to my dearly departed friend Ernest Hemmingway) “When you have shot one bird flying you have shot all birds flying. They are all different and they fly in different ways but the sensation is the same and the last one is as good as the first.” The gentle pleasure derived from discharging firearms is not limited only to airborne prey. When you have shot a European Wolf or an African Hunting Dog, that incredible sensation returns every time you shoot any other type of dog, whether it be a Dalmatian or the ever-feisty Cavalier King Charles Spaniel. The pleasure is comes from knowing that you have bested a potentially deadly foe.
These days, people are altogether too comfortable with man’s so called “best friend”. It wasn’t too long ago (in fact as recently as during the reign of James VI) when wolves in Scotland were considered such a threat to the population that special houses called "spittals" were erected on highways for protection. More frighteningly, through the power of the internet I have learned that in Italy between the 15th and 19th centuries, 440 people were killed by wolves in central Padania alone! Modern man must not ignore the lessons of history. Cowardice today in the face of burgeoning dog ownership could lead to a return of the terrors of Padania tomorrow!
I am profoundly aware of when an animal (be it a dog or even man) is wild and therefore a direct threat to human life. My mastery of this concept was never more evident that when I produced and scored a Broadway version of Joseph Moncure March’s work “The Wild Party” with Michael John LaChiusa. I have also translated The Wild Party into Legal French and Swedish. My depth of knowledge of the term “Wild” is beyond the comprehension of most and certainly beyond the criticism of any court constituted by man.
For fullness, I will now speak to be self-defence and the common law doctrine of necessity.....
While, my agreement with the publisher at the Alternative Criminal Law Journal forbids me from reproducing the entire work, I have posted an extract below (pages 84-86) which should sate the ravenous appetites of the countless hordes looking to nuzzle on the teat of my wisdom. For those who, understandably, want more feel free to contact me at Albert Bathurst Piddington Chambers and I will happily recite the entire article to you by heart. You must not take notes and should set aside between four and five hours.
* * * * *
.....In Hardman v Director of Public Prosecutions (NSW) [2003] NSWCA 130 (29 July 2003), it was noted that in McKenzie v Stratton [1971] VR 848 the defendant, who was, like me on so many occasions, charged pursuant to the Summary Offences Act 1966 (Act), although in his case in relation to allegedly being drunk and disorderly in a public place. In that decision, Nelson J commendably found that a person found in a taxicab in a car park was found in a public place, namely, the car park.
I want to make it abundantly clear that I have never shot any animals whilst in a taxi-cab. In fact, I have never been in a taxi-cab at all. Once again, I cannot over-emphasise the fact that I was on horseback and was merely a non-insane automaton, acting without any awareness whatsoever of my own actions. How can a veritable zombie, moved solely by an uncontrollable and primordial desire, be asked to pay ten (10) penalty units? More on that nonsense that later. For now it is appropriate to reflect on the injustice of the fact that this is not the first time I have been charged under this section (in addition to my many many brushes with other sections of the Act, particularly sections 11H: Intimidatory use of vehicles and vessels and 27N: No personal liability for person conducting search under direction of correctional officer) a great many times. Therefore, it is critical that you, the reader, focus on the patent absurdity of this rule, in order to ensure that noble sportsmen in the future who, unlike me on that tragic afternoon, are actually aware of their actions are not held to account by this spurious regulation. By way of background, the actual text of the section I am deemed to have offended is as follows:
28J Offence of hunting on private land
(1) In this section:
"animal" means any vertebrate animal but does not include a fish within the meaning of the Fisheries Management Act 1994 .
"hunt" an animal includes search for, pursue, trail, stalk or drive out the animal in order to capture, trap, harm or kill the animal.
"occupier" and "owner" have the same meanings as they have in the Rural Lands Protection Act 1998 .
"private land" has the same meaning as it has in the Rural Lands Protection Act 1998 .
(2) A person who, without reasonable excuse (proof of which lies on the person) enters private land and hunts for any animal on the land, without the consent of the owner or occupier of the land, is guilty of an offence.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(3) Without limiting subsection (2), a person is taken to have reasonable excuse for the purposes of that section if:
(a) the person did not know that the land was private land, or
(b) the person is an Aboriginal person:
(i) who is a member, or in the company of a member, of a Local Aboriginal Land Council and who is undertaking traditional cultural hunting within the area of the Council in accordance with a permit issued under section 48 of the Aboriginal Land Rights Act 1983 , or
(ii) who enters the land and hunts an animal pursuant to a native title right or interest that is the subject of an approved determination of native title or of a registered native title claim, or
(c) the person enters the land and hunts animals in accordance with a duty imposed on the person under the Rural Lands Protection Act 1998 or the Wild Dog Destruction Act 1921 to suppress and destroy the animals, or
(d) the person is of a class, or enters the land and hunts in the circumstances, prescribed by the regulations.
I will deal with whether the deceased animal was a vertebrate, whether the property had an “occupier” and whether I knew the land was “private” in great detail later. For now, I will concentrate on the unavoidable conclusion that I was under a fiduciary duty to destroy the animal.
In coming to this result, one simply is unable ignore the axiomatic statement of my intellectual forebear Charles Dickens “There is a passion for hunting something deeply implanted in the human breast.” No human breast is more passionate than mine. As I famously said in 1948 (although this quote is often wrongly attributed to my dearly departed friend Ernest Hemmingway) “When you have shot one bird flying you have shot all birds flying. They are all different and they fly in different ways but the sensation is the same and the last one is as good as the first.” The gentle pleasure derived from discharging firearms is not limited only to airborne prey. When you have shot a European Wolf or an African Hunting Dog, that incredible sensation returns every time you shoot any other type of dog, whether it be a Dalmatian or the ever-feisty Cavalier King Charles Spaniel. The pleasure is comes from knowing that you have bested a potentially deadly foe.
These days, people are altogether too comfortable with man’s so called “best friend”. It wasn’t too long ago (in fact as recently as during the reign of James VI) when wolves in Scotland were considered such a threat to the population that special houses called "spittals" were erected on highways for protection. More frighteningly, through the power of the internet I have learned that in Italy between the 15th and 19th centuries, 440 people were killed by wolves in central Padania alone! Modern man must not ignore the lessons of history. Cowardice today in the face of burgeoning dog ownership could lead to a return of the terrors of Padania tomorrow!
I am profoundly aware of when an animal (be it a dog or even man) is wild and therefore a direct threat to human life. My mastery of this concept was never more evident that when I produced and scored a Broadway version of Joseph Moncure March’s work “The Wild Party” with Michael John LaChiusa. I have also translated The Wild Party into Legal French and Swedish. My depth of knowledge of the term “Wild” is beyond the comprehension of most and certainly beyond the criticism of any court constituted by man.
For fullness, I will now speak to be self-defence and the common law doctrine of necessity.....
Sunday, March 21, 2010
Bullstrode's Latin phrase book: habeas corpus
Literally meaning '[You shall] have the body', habeas corpus is a fundamental English common law writ, which protects a citizen against arbitrary or unlawful detention by requiring the authorities to bring detained persons before the court and establish the lawfulness of their detention. An example:
'Mr Whitelocke, I do not understand your submission. As I have previously indicated, Hawkeye is not a legal entity and it is not possible to serve a writ of habeas corpus on it.'
Unfortunately my brush with Hawkeye and the Woodies in the fateful summer of 1997 was not my only occasion to invoke the 'great writ'*.
Hawkeye, once again whistling its macabre siren call.
* For a full discussion about the frankly bizarre limits to the defences to a charge of hunting on private land under section 28J of the Summary Offences Act, see 'When is a dog wild? Semantics again triumph the spirit of the law' TB Whitelocke KC 24 AltCrimJ 7 - 125.
'Mr Whitelocke, I do not understand your submission. As I have previously indicated, Hawkeye is not a legal entity and it is not possible to serve a writ of habeas corpus on it.'
Unfortunately my brush with Hawkeye and the Woodies in the fateful summer of 1997 was not my only occasion to invoke the 'great writ'*.
* For a full discussion about the frankly bizarre limits to the defences to a charge of hunting on private land under section 28J of the Summary Offences Act, see 'When is a dog wild? Semantics again triumph the spirit of the law' TB Whitelocke KC 24 AltCrimJ 7 - 125.
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