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  #321  
Old 17th May 2017, 10:52 PM
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Default Re: Royal Commission into child abuse announced

I was watching Pell on the News tonight when I noticed he always wears his OA pin.

He is a Companion of the Order of Australia eg, the highest level


I personally don't think he is worthy..but then he got it for services to Social Justice, and the Catholic Church.

How to loose your Honour

TERMINATIONS AND CANCELLATIONS ORDINANCE 4
1) The Governor-General may terminate an appointment, or cancel an
award, if a conviction for a crime or offence under:
(a) a law of the Commonwealth, a State or a Territory; or
(b) a law of a foreign country;
has been recorded in relation to the holder of the appointment or award.
(2) The Governor-General may terminate an appointment, or cancel an
award, if:
(a) a civil penalty under a law of the Commonwealth, a State or a
Territory; or
(b) a penalty of a similar kind under a law of a foreign country;
has been imposed on the holder of the appointment or award.
3) The Governor-General may terminate an appointment, or cancel
an award, if a court, tribunal or other body exercising judicial or
administrative power under:
(a) a law of the Commonwealth, a State or a Territory; or
(b) a law of a foreign country;
has made a finding that is adverse to the holder of the appointment
or award (including a circumstance in which the holde
(4) The Governor-General may terminate an appointment, or cancel an
award, if, in the opinion of the Governor-General, the holder of the
appointment or award has behaved or acted in a manner that has brought
disrepute on the Order



http://www.heraldsun.com.au/news/vic...4f6758c0640582

Suggestions for a domain name anyone?

noacforpell.com

Stripgeorgeac.com
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  #322  
Old 17th May 2017, 11:07 PM
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Default Re: Royal Commission into child abuse announced

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Coryate said View Post
(Snippo)
Suggestions for a domain name anyone?

noacforpell.com

Stripgeorgeac.com
ShamePellShame.com perhaps?
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  #323  
Old 18th May 2017, 11:04 AM
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Default Re: Royal Commission into child abuse announced

Quote:
Coryate said View Post
Suggestions for a domain name anyone?
pell-ease-lock-him-up.com
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  #324  
Old 18th May 2017, 11:06 PM
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Default Re: Royal Commission into child abuse announced

Catholic Archbishop Philip Wilson seeks to have charge of hiding child sex abuse thrown out

Quote:
Lawyers for Catholic Archbishop of Adelaide Philip Wilson, accused of concealing child sex abuse in the Maitland-Newcastle diocese, have fronted court again for their third attempt to stop the case against him from going ahead.

Wilson, who has retained his position amid the criminal proceedings, is accused of failing to pass onto police information he had between 2004 and 2006 that might have helped convict Father Jim Fletcher.

It is alleged a boy told the senior clergyman, he had been indecently assaulted by Father Fletcher several years earlier.

Prosecutors claim Wilson came to believe the allegation decades later, after learning of other cases.

Father Fletcher died in prison in 2006.

Wilson's barrister, Bret Walker SC, told the Court of Appeal in Sydney today that the charge was invalid.

It is Wilson's third attempt to permanently stay the proceedings.
More at linky
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  #325  
Old 20th May 2017, 11:13 AM
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Default Re: Royal Commission into child abuse announced

Brett Walker SC is no slouch. I bet he is doing this defence to test the law.

Quote:
In his written submissions to the hearing, Mr Walker argued that the charge of concealment, required the crime that was allegedly concealed, to be a "serious indictable offence", or at least five years imprisonment.
He said in the 1970s when the actual indecent assault occurred, the crime carried a maximum penalty of five years "penal servitude", or hard labour, not imprisonment.
Mr Walker told the court according to the definition at the time, the indecent assault Wilson was accused of concealing did not require imprisonment and therefore "does not fall within the definition of a seriously indictable offence".
Mr Walker said Justice Monika Schmidt, in her October 2016 decision, was wrong to conclude that it was a "serious indictable offence".
Justice Schmidt did not rely on the definition of indecent assault at the time Father Fletcher's crime was committed.
Instead, she had relied on the definition of indecent assault, relevant between 2004 to 2006, when Wilson was accused of concealing the crime.
That definition, also relevant today, requires that someone charged with indecent assault face a maximum five years jail, thereby — by today's standards — making it an serious indictable offence.
Director of Public Prosecutions Lloyd Babb SC said Justice Schmidt had "correctly determined that the charge is valid".
The three appeal court judges hearing the case, including Chief Justice Tom Bathurst, reserved their decision.
The issue is going to be around retrospective application of current standards of law to past events. I would think there is some chance the appeal will succeed.
Its something I always find difficult. For the law to function it cannot be outrage driven. It needs to be a process perceived to be fair by the vast majority or it doesn't work. But there is a kind of mental split here I don't know how to manage. I am sure that the average person on the street at the time would have thought what Wilson did was pretty bad, but the law hadn't caught up with that.
We need a Blue Lightning strike here, I think.
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  #326  
Old 20th May 2017, 01:59 PM
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Default Re: Royal Commission into child abuse announced

Quote:
DanDare said View Post
Brett Walker SC is no slouch. I bet he is doing this defence to test the law.


The issue is going to be around retrospective application of current standards of law to past events. I would think there is some chance the appeal will succeed.
Its something I always find difficult. For the law to function it cannot be outrage driven. It needs to be a process perceived to be fair by the vast majority or it doesn't work. But there is a kind of mental split here I don't know how to manage. I am sure that the average person on the street at the time would have thought what Wilson did was pretty bad, but the law hadn't caught up with that.
We need a Blue Lightning strike here, I think.

Having laws that apply retrospectively is difficult, it can lead to innocent people being unfairly penalised. For instance if you were to change property laws and have them apply retrospectively it could negatively impact people who broke no law in the past when they were buying/selling property, in general the test for retrospectivity is this factor.


However criminal law may be a different matter, where a crime has been committed should we charge them under the law as it was then when the crime was committed or the law as it is now that the crime has been found out?


Lets have another for instance, the gay panic defence. It has been recently removed as a mitigating factor in defence of gay murder in Queensland, but should a person who committed the crime of killing a gay person before the law was changed be allowed to claim the "gay panic defence" as part of his case? In other words, applying laws as they were then to a case that has come to court many years later would lead to unfair results, with one person able to claim mitigating factors, or even escape prosecution altogether compared to a different man performing the same act today.


Yes it's complicated, if you allow it for one defence then you should allow it for all defences, I look forward to some legally trained input because I certainly aint!
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  #327  
Old 21st May 2017, 04:26 PM
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Default Re: Royal Commission into child abuse announced

Wilson case:

Having a quick look online: No judgment has yet been given, so -ATM- it's a case of watch this space.

So-called “gay panic defence”:

The obsolescence of the so-called “gay panic defence” is in a very different category to the issue which I infer, from the above discussion, arises in the Wilson case.

I should preface what I'm about to say with the following: The common law of homicide, obviously enough, has ancient origins. The common law changed in various ways over centuries, and it's not necessary to consider those developments. Then, in more recent times, various legislatures have enacted statutes to codify, and amend, aspects of the common law. I'm going to restrict attention to Australia, and focus on the “change” in law referred to.

Basic concepts: Murder is the unlawful killing of another human, with malice aforethought. Putting aside presently irrelevant situations such as the felony-murder rule and over simplifying somewhat, the necessary intent is the intent to do the act which causes the death. If you intend to point the gun and pull the trigger, and then death results, you have the requisite frame of mind.

Let me set out two other qualifications, to set the scene. First, "self defence" is a defence of using reasonably proportionate violence to prevent an imminent, unlawful and serious threat to the life of one's self or another. It's a true defence: if established, it results in acquittal. If the violence is not reasonably proportionate -if it's excessive- than there will be conviction on the count of murder (although the circumstances will still be relevant when it comes to the severity of penalty). The so-called “gay panic defence” has nothing to do with this. Second, criminal insanity was also a complete defence, although if established it led to other substantial consequences. That is, the defendant would be acquitted of murder, but committed to a mental institution. Back in the day, that was a very bad thing. These days, the position, IMO, is unsatisfactory. Our knowledge of neurology/psychiatry is such that criminologists and all informed commentators acknowledge that the boundary between criminal insanity and types of psychopathy and mental illness which can contribute to homicide is, at least, fuzzy in the extreme. Except that this is not a vote-winner, this space is ripe for further reform. In any event, “gay panic defence” is distinct from the defence of insanity.

Now, to the core points. At common law, and later as codified by statute in multiple Australian jurisdictions, “provocation” operated to diminish the seriousness of homicide. Loosely speaking, if X was “provoked” by something that a hypothetical reasonable person would consider so extreme that the reasonable person might lose all self control and commit homicide, then such homicide was not murder with malice aforethought. Yet, provocation was not a true defence in the way that self-defence or insanity were, because the result was not acquittal. The result was that the homicide was regarded as “voluntary manslaughter”. This was a generally more serious type of manslaughter than “involuntary manslaughter”, the latter being the unlawful killing of someone recklessly.

The {IMO, primitive} theory was that there were some provocations which induced a form of temporary disability of thinking which prevented the formation of the requisite intention to commit murder.

Perhaps there were two most common fact settings in which, in various cases over centuries, provocation was found to operate to reduce criminal culpability. They were both, IMO, highly unsatisfactory, especially when viewed through modern eyes. One was “gay panic”: Where a person (invariably male) was subjected to a proposition of unwanted gay sex. The other was where a husband (also male!) walked in and found his wife in the act of coitus with another. I only need to lay them out together to demonstrate why they were obviously misconceived. It seems to me to be barking balmy to kill someone because they proposed unwanted gay sex. It seems to me that to kill someone because they engaged in sex with one's wife assumes that she is a chattel. In both cases, killing is ... *hmmm* … not an appropriate remedy …

Nevertheless, in various cases killing in these circumstances was found to be markedly less culpable than killing in otherwise equal circumstances.

Having laid it out now, it's easy to see why the progressive abolition of the so-called “gay panic defence” involved no retrospectivity. Two things happened:

Initially, various more modernly minded juries stopped accepting that any “reasonable person” would kill in such circumstances. They started to return convictions on the footing that a reasonable person would take somewhat lesser steps than resorting to murder. The juries decided that what the defendant had done would not, at the time the defendant did it, have been done by any reasonable person. So, this was all about application of the existing law to the facts. Yet, there was a misconceived perception, in some quarters, of retrospectivity: In truth, there was no retrospective change in the law – It was just that the old tricks were no longer working on modernly minded juries.

That change was progressive, and for a for a period, the situation was unpredictable and dependent upon the vicissitudes of who constituted the jury in a given case.

Meanwhile, Law Reform Commissions, concerned about consistency and the integrity of the law, and taking into account advice from various human rights and psychological experts, recommended abolition of “provocation” in the criminal law entirely.

This has (AFAIK) been done, by legislation which is not retrospective, progressively, in all Australian jurisdictions.
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Last edited by Blue Lightning; 21st May 2017 at 04:51 PM.
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  #328  
Old Yesterday, 01:51 PM
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Default Re: Royal Commission into child abuse announced

I have problems with the reasonable or proportionate response idea in relation to self defence.

In military intelligence, threat assessment stands on two legs:-

1. Capabilities and
2. Intentions.

Capabilities is the easiest to assess. Basically, it is just a matter of trying to find out how many spears the other guy has, how well they use them, etc, etc.

Intentions is far more difficult. Obviously, a history of using force is relevant. Germany committed two acts of massive aggression in World Wars I and II, so concern over the re-arming of Germany circa 1955 and West Germany Joining NATO and the Eastern Germany joining the Warsaw Pact was a source of reasonable concern both within Germany and elsewhere.

Of course, this brinkmanship led to the M.A.D. system, where the world played Russian roulette with nuclear weapons for decades.

But let us scale it down, and look at the micro case. Like a husband continually raping and beating his wife, and she kills him in self-defence.

Was her response proportional and reasonable? Well, it is fine to say she could take the kids and fuck off to where he can't find her. This is often touted as a reasonable idea. it sort of is, but it doesn't address the emotion of the situation.

First, it takes an expert to "go dark". There are just two many easy ways, especially in the age of the internet, for an asshole husband to go and hunt for "his" wife and kids. So flee and hide is far from a safe strategy unless the woman really knows how to do it. Second, a second's forgetfulness or minor mistake can have the vengeful husband at her door, to take his revenge at her temerity. Psychologically, he is likely to up the ante, and take her out. Not likely, because most bullies are cowards, but the possibility is there.

So back to basics. A man with a history of violence, especially towards particular persons, like his family, has demonstrated both capability and intentions in the MI sense.

The woman's only real defence is surprise attack.

Or rather, a planned, surprise counter-attack. By definition, this is pre-mediated. A deliberate intent to kill. Law courts, and people generally, are unlikely to find this logic palatable. [Or even the victim of abuse].

Of course, this is not without costs, not least to the victim herself, who has to live with the fact that she deliberately killed someone, albeit with massive provocation.

So in the case of a crime of violence, I think history is entirely germane. I don't think the law takes account of this realistically.

To my mind, the rapist/bully/abuser has already weakened or surrendered his right to absolute protection under the law. In subscribing to a life of violence, he risks his life. So "reasonable force" or "proportional response" considerations in terms of the victim's retaliatory response is not relevant here. Nor is chivalry. The enemy is identified, and the solution is clear. Death. Not by the state, but by the victim. It is her or him.

In fleeing, she loses her home, her possessions, and yet cannot guarantee her own safety or her children's safety. So, IMHO opinion [and a realistic self-assessment of the victims own capabilities], she removes the vermin, thus doing herself her children and the world a favour.

I don't normally approve of vigilantism, but I see no other realistic option if the victim can reasonably pull it off, because the consequences of failure are also dire.
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  #329  
Old Yesterday, 06:52 PM
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Default Re: Royal Commission into child abuse announced

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But let us scale it down, and look at the micro case. Like a husband continually raping and beating his wife, and she kills him in self-defence.

Was her response proportional and reasonable? Well, it is fine to say she could take the kids and fuck off to where he can't find her. This is often touted as a reasonable idea. it sort of is, but it doesn't address the emotion of the situation.
I may not recall this precisely, but having been a juror in a murder trial last year, iirc, the definition of 'proportional and reasonable' is 'what would a reasonable person do'. granted, it is not something which lends itself to a simple test/experiment, which is why there are 12 jurors.

Under this definition, 'the emotion of the situation' is a legitimate consideration. in other words, if someone is coming at you with a knife, panicking and hitting them on the head with a frying pan is reasonable.

in addition, iirc, the 'but why didn't she leave him after the 10th time and before the 11th where she killed him' is not weighed against self defense during the events in question because self defense is assessed against the immediate threat which led to the killing. there is no requirement for the defender to have acted in the past in a way that would minimise the danger. however, if - at the time - there were other reasonable options, then self defense may not be valid. or if the threat of death or serious injury (another 'soft' definition) was not established.

e.g. if a drunk person is approaching me, flailing and yelling "I fucking hate atheists", I could attempt to run away. if I, instead, bludgeon him to death with Hitchens' "god is not great" then I will probably be unable to claim self defense.

and while I cannot get into details, these considerations where very much pertinent to our verdict.
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  #330  
Old Yesterday, 08:42 PM
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Default Re: Royal Commission into child abuse announced

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Stub King said View Post
I may not recall this precisely, but having been a juror in a murder trial last year, iirc, the definition of 'proportional and reasonable' is 'what would a reasonable person do'. granted, it is not something which lends itself to a simple test/experiment, which is why there are 12 jurors.

Under this definition, 'the emotion of the situation' is a legitimate consideration. in other words, if someone is coming at you with a knife, panicking and hitting them on the head with a frying pan is reasonable.

in addition, iirc, the 'but why didn't she leave him after the 10th time and before the 11th where she killed him' is not weighed against self defense during the events in question because self defense is assessed against the immediate threat which led to the killing. there is no requirement for the defender to have acted in the past in a way that would minimise the danger. however, if - at the time - there were other reasonable options, then self defense may not be valid. or if the threat of death or serious injury (another 'soft' definition) was not established.

e.g. if a drunk person is approaching me, flailing and yelling "I fucking hate atheists", I could attempt to run away. if I, instead, bludgeon him to death with Hitchens' "god is not great" then I will probably be unable to claim self defense.

and while I cannot get into details, these considerations where very much pertinent to our verdict.
I understand, but there is a case to be made that while the danger may not be immediate, it may be inevitable.

There have been countless women who were murdered by their husbands or estranged husbands, even though they have been under restraining orders and shit like that.

In other words, I am dissatisfied that "immediate threat" while a necessary condition, is often not a sufficient condition for the safety of the victim.

We see this shit at all scales of society. At the Munich agreement, the predator Hitler said OK, give me Sudetenland and I'm done. The allies say yeah, sure. Hitler then promptly invades the whole of Czechoslovakia [and it is easy because Sudetenland was the main bastion of that country], and then goes n to invade Poland, Western Europe, Russia etc.

In other words, trying to appease a psychopath often does not work. Back to the abused spouse, she has endured sustained abuse and humiliation for years, and thus should have the right to natural justice, if society cannot guarantee her safety.
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