The Cult of Personality Has Taken Our Integrity

The Confession
The confession is a constituent part of the criminal law. In some cases a confession is sufficient evidence to secure a conviction without any other significant evidence. Much jurisprudence is based on the importance of the confession. In a relatively recent case the admissibility of the alleged confession was contested.  The Crown said the voluntary confessions of Brett Peter Cowan should be admissible against him and they support his conviction for murder. Mr Cowan agreed the confessions were voluntary, but were made in circumstances where they should not be admissible against him at his trial. The Queensland Court of Appeal found that the subject confessions were admissible against Mr Cowan and his conviction for murder should stand.

As is almost always the case, media reporting of and commentary on the Cowan matter was happy to acknowledge the existence, validity and relevance of the subject confessions. It was a criminal law matter and the confessions were a proper part of the prosecution case.

In stark contrast to that approach is the behaviour now adopted in our political arena, both by the politicians and the reporters and commentators on the political activities (or most of them), be they in the established media or the new media. The lust to control or at least dominate the 20 second sound bite and the news cycle has drastically changed the dynamic. The political answer and the spin is all important. Legal questions that arise in the political arena are now routinely answered with a political answer, not a legal answer, because it suits the political agenda of the person purporting to answer the question. Immediacy trumps authenticity in this new dynamic. Give your answer and spin it with the authenticity the self-importance you are trying to create provides and you will be seen as an authority is the approach. Many times that “political” advice is the wrong answer to the legal question, but that is irrelevant to the self-promoters. It is more important that they be seen to be important and influential, rather than them being correct. They want to continue with their argument and/or agenda and do not want to be delayed or derailed by the inconvenience of the rigours of the law. Those who try to criticise this Cult of Personality approach to answering questions and provide the correct legal answer are criticised and told they cannot be correct. Again the political answer is sought to usurp the legal answer.

In this new dynamic, where support for a position is thought necessary, “experts” consulted are invariably of the “friendly” variety, as they will not challenge the narrative sought to be advanced. This “expert” support for the narrative appears to lend authenticity to the author and improves their profile and status.

The lack of critical analysis in this new dynamic is a fatal flaw and our education, debate and community are poorer for it.

The Stolen Diary
It is incontrovertible that when he was Speaker of the House of Representatives the diary of Peter Slipper was stolen. During litigation commenced by James Ashby against Peter Slipper Ashby confessed to stealing the diary and Mal Brough confessed to receiving that stolen diary. Mal Brough has made several voluntary confessions in that regard.

On Wednesday 12 December 2012 Rares J gave judgment in the relevant Ashby -v- Slipper litigation. His Honour granted the application of Mr Slipper and dismissed the proceedings on the grounds that they were an abuse of process of the Court. In so doing His Honour made several very damning findings against Mal Brough.

The Cult of Personality
The response from the media to that judgment is instructive. Many in the media find the rigours of adhering to correct legal protocol inconvenient and bothersome. It is much easier to provide a political response, rather than a legal response, particularly as the political response rarely is subject to an appeal Court and has no adverse consequences if it is wrong. Also, as I indicated earlier, many media people (both old media and new) want to be seen as players influencing what is going on and to enjoy an elevated status as a result of possessing that influence.

The reality is that the theft of the diary of the Speaker has not been pursued in any effective way by either the Federal or State police. The confessions of both Ashby and Brough have been ignored, notwithstanding that they would be admissible against them in court and would likely lead to a conviction against each of Ashby and Brough, in the same way as occurred with Mr Cowan.

The False Dichotomy
With our new dynamic infected by the Cult of Personality the political games that the politicians and the media who report on them play have usurped proper legal process and given us two very different arenas in our society. The legal world where the criminal law applies and is subject to all the established checks and balances and the political world, where the law is applied arbitrarily to suit the agenda of those seeking to advance the narrative.

Ultimately the dichotomy is false, if the behaviour in the political world can be subjected to a properly constituted and empowered Court. That reality would be very uncomfortable and inconvenient to those now happily pursuing the Cult of Personality in the world of political games.

Integrity
As a nation, when we do not properly investigate and prosecute the theft of the diary of the Speaker of the House of Representatives, particularly when a confession to that crime is on the public record, we have lost our integrity. No amount of political spin and news cycle manoeuvring will change the fact that this matter has not been pursued and those people supposedly in responsible positions in our community do not see it as a matter worth pursuing. The parliament has been corrupted and for political expedience. Failure to investigate that corruption reinforces the loss of integrity. It is a matter which goes beyond partisan politics and is far more important than the selfish vanity of the Cult of Personality.

Rewarding Mal Brough with a position in the Federal Cabinet after he has voluntarily confessed on several occasions to receiving the stolen diary of the Speaker shows our system has completely broken and is utterly bereft of integrity. It shames everyone involved and everyone who condones it.

Legal questions deserve legal answers. Political expedience is no longer an adequate or sufficient answer. In the long run it is not even an expedient answer because a wrong answer is a wrong answer. It is time to banish the Cult of Personality from our political dynamic and restore integrity.

Dynamic Tension

There is often tension in the law as to whether a conservative or more robust approach should be taken in respect of an issue. Opinions may differ according to how an issue is viewed. It might be said that a controversy arising out of the Royal Commission into Trade Union Governance and Corruption has produced some dynamic tension in that regard.

Thursday 13 March 2014
On Thursday 13 March 2014 The Royal Commission into Trade Union Governance and Corruption was established with former High Court Judge, the Hon Dyson Heydon AC QC, as the Commissioner.

Wednesday 9 April 2014
On Wednesday 9 April 2014 opening remarks at the Royal Commission into Trade Union Governance and Corruption were made by Commissioner Heydon.

Thursday 28 August 2014
On Thursday 28 August 2014 Commissioner Heydon ruled on what was a bias and conflict of interest claim by the witness Kathy Jackson.

Thursday 30 October 2014
On Thursday 30 October 2014 the Letters Patent establishing the Commission of Inquiry extended the date for the report of the results of the inquiry and relevant recommendations from 31 December 2014 to 31 December 2015.

Tuesday 14 April 2015
It would seem from at least Tuesday 14 April 2015 the NSW Bar Association ran an advertisement of Commissioner Heydon speaking at the dinner which included the Sir Garfield Barwick Address.

Drawing on my own modest experience speaking at seminars, the invitation to speak is extended and acceptance confirmed in advance of the specific advertising of the event.

Thursday 13 August 2015
On Thursday 13 August 2015 it was revealed that the 6th annual Sir Garfield Barwick Address was to be delivered by the Hon Dyson Heydon AC QC at a dinner to be held at the Castlereagh Hotel, 169 Castlereagh Street, Sydney on Wednesday 26 August 2015 from 6:00 pm.

The invitation widely circulated on Thursday 13 August 2015 was resplendent with Liberal Party New South Wales branding. Relevantly it read:

• “The Lawyers Branch and the Legal Policy Branch invite you to attend the 6th annual Sir Garfield Barwick Address”
• “This year the address will be delivered by The Hon Dyson Heydon AC QC”
• “Cheques should be made payable to: Liberal Party of Australia (NSW Division)” and
• “A receipt will be issued. All proceeds from this event will be applied to State election campaigning.”

Controversy
With the revelation of Commissioner Heydon accepting the speaking engagement at a Liberal Party fundraiser, whilst still in the role of conducting a Commission of Inquiry into Trade Union Governance and Corruption, the question arose as to whether Commissioner Heydon ought be removed from the Inquiry due to apprehended bias. Since the instigation of the Inquiry criticism had been levelled at the federal government that it was a politically motivated vehicle designed to attack its opponents, the Australian Labor Party.

The Law
Conveniently two cases dealing with the issue of apprehended bias are instructive here.

In Re Carruthers v Connolly, Ryan & A-G [1997] QSC 132 Thomas J said:
“The principal question is whether either Commissioner is disqualified because of actual or apprehended bias touching matters upon which they are required to investigate and report.”

“In determining the ultimate question of ostensible bias on the part of a Commissioner, the Court must attempt to form some view whether the conduct in the circumstances would give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the Commissioner will not discharge his task impartially.”

“But the expectation that the person exercising the power will bring an impartial and unprejudiced mind to the resolution of the question entrusted to that person is not to be diluted. Condemnation by a biased tribunal is an unacceptable abuse, just as exoneration by a biased tribunal may be considered worthless.”

Justice Thomas ultimately ruled to stop the Connolly-Ryan Inquiry.

The "If the Commissioner were thought to harbour political prejudice" Test of Thomas J seems problematic for Commissioner Heydon.

When sitting on the High Court of Australia Justice Heydon was part of a majority judgment (with Kiefel and Bell JJ) in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 which will give his present predicament little comfort, in my submission. In that case their Honours wrote at paragraph [139]:
“It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification[179]. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned.”

The appearance of departure from neutrality appears to have been triggered by Commissioner Heydon by his accepting the speaking engagement at a Liberal Party fundraiser, whilst he was still in the role of conducting the Commission of Inquiry.

Commissioner Heydon is required to make findings of credit in respect of witnesses at the Royal Commission into Trade Union Governance and Corruption. He can no longer be seen to be impartial doing so.

With that in mind:

• No one at the NSW Bar Association thought Commissioner Heydon giving the speech to the Liberal Party fundraiser was a bad idea?
• Counsel Assisting the Royal Commission into Trade Union Governance and Corruption did not think that Commissioner Heydon giving the speech to the Liberal Party fundraiser was a bad idea?

In accepting the subject speaking engagement, Commissioner Heydon compromised the Royal Commission into Trade Union Governance and Corruption. That is the integrity of all the proceedings over which Commissioner Heydon has presided are now compromised. The threshold was breached at agreeing to speak at the fundraiser. The magnitude of the function is irrelevant. Consequences flow from the breach. There is no proper basis for the Royal Commission into Trade Union Governance and Corruption to continue now. It has become irreparably compromised.

Correspondence
Having arrived at that position, the correspondence trail from the first invitation to the correspondence released on Thursday 13 August 2015 interests me. Has any ground shifted? As the government is happy to say in respect of the metadata it seeks to collect from the citizens, "Nothing to hide, nothing to fear". The Liberal Party should produce all of the correspondence in relation to the speaking engagement. If the relevant correspondence contained exculpatory material, one would expect it to be produced. It is curious why the correspondence has not been released. The inference is not good for Commissioner Heydon, the Commission of Inquiry or the Liberal Party.

There is also some incongruity about a Commission of Inquiry seeking to determine the truth, yet relevant correspondence which could perhaps clarify an issue in respect of that Inquiry not being produced by the Commissioner overseeing that Inquiry and an entity (the Liberal Party) which may have ultimately compromised that Commission of Inquiry.

Counsel Assisting
If Commissioner Heydon will not withdraw or stand down, a question arises as to whether Counsel Assisting has an obligation to make an application for Commissioner Heydon to stand down in respect of the bias allegation. A quick reconsideration of Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 suggests Counsel Assisting should apply for Commissioner Heydon to withdraw. Whilst that is a criminal law case, it details the roles of the Judge and the Crown Prosecutor in proceedings. It also canvasses the role of defence counsel. It can also be seen to respect the duty to the Court all legal practitioners are required to observe.

In my submission Counsel Assisting has an obligation to preserve the integrity of the Commission of Inquiry and make an application to Commissioner Heydon for him to consider the issue of apprehended bias and perhaps conflict of interest.

In that regard there is merit in making a Dallas Buyers Club LLC v iiNet Limited (No 4) [2015] FCA 838 type preliminary discovery application for the aforementioned correspondence which has yet to be produced, to determine if an apprehended bias application is needed. Such an application may need to be made to another Court, seeing as it potentially involves Commissioner Heydon producing correspondence.

Conclusion
So it can be seen that significant tension has arisen as a result of Commissioner Heydon agreeing to give the speech to the Liberal Party fundraiser. I would resolve the dynamic tension by having Commissioner Heydon withdraw or stand down from the Commission of Inquiry. That would also be an approach which would encourage the community to have confidence in the Courts and the administration of justice.

Wilful Blindness Is Not The Solution

Nervous Breakdown
Several years ago I visited a friend, she had a female guest there also, a happily married mother. What started out as a pleasant afternoon, became serious rather quickly when the female guest had a minor nervous breakdown. In the following weeks her condition deteriorated and the consequences escalated, such that an unpleasant scene she subsequently created at the business she ran lead to her being forced to spend some time involuntarily in a psychiatric hospital for treatment for her condition. The change in the health of the mother had a drastic impact upon her family, including her primary-school-aged children.

Prior to the episode at her work it was clear that the mother should seek professional medical and mental health assistance. Her behaviour enlivened the possibility that she be asked to submit to a non-urgent mental health assessment via a Justices Examination Order (JEO). Such an Order is issued by a Magistrate or Justice of the Peace (JP) and would involve the mother submitting to an examination by a doctor or authorised mental health practitioner. Any person can make an application for a JEO, including a relative of the person to be assessed. I have seen a JEO used in greater family law proceedings. I suggested to my friend it is something the husband / father might seriously consider in the circumstances, were he truly concerned about the welfare of his children.

Once the episode at the work of the mother occurred that decision was taken out of the hands of the husband / father and the benefits of an early intervention were lost.

Manipulative False Suicidal Ideation Claim
In light of that nervous breakdown situation, consider someone who makes a manipulative false suicidal ideation claim. They have evidenced their bullying, emotional blackmail and emotional abuse to maintain adherence to their narrative and / or control the amount of attention they get. It is also possibly evidence of self-destructive behaviour on the part of the author of the false claim.

The maker of the false claim is responsible for these developments, which are a consequence of decisions they made voluntarily. There is now good evidence to support the contention that the person who made the false claim should seek professional medical and mental health assistance. It can be evidence of Borderline Personality Disorder. Their role with their employer is also entitled to be reviewed. In that regard someone who makes a manipulative false suicidal ideation claim is not someone who should be lecturing at health conferences.

Consider the implications if the person who made the manipulative false suicidal ideation claim also has the role of the primary carer of the children of the relationship. It was the mother who had the nervous breakdown I mentioned earlier.

In Jackson & Macek [2015] FCCA 1656 Meyers J said at paragraph [37]:
“The Court must consider the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It is a paramount consideration with primacy over all others, and it is a consideration the Court gives greatest weight of those condensations at s.60CC [of the Family Law Act 1975] when determining what is in the best interests of the child.”

Relevantly here:

• The suicidal ideation of the mother puts in question her mental health
• Does the mental health of the mother pose a risk to the children, in that the children will suffer physical or psychological harm from coming into contact with the mother or spending time or living with the mother?
• Will the mother abuse the children or neglect the children or subject the children to family violence as a result?

(See Jackson & Macek [2015] FCCA 1656 per Meyers J at paragraph [45])

In Hunter & Morrison (contravention) [2014] FamCA 198 the mother made statements about her alleged suicidal tendencies to and in the presence of the children (per Tree J at para [28]). The emergence of the alleged suicidal ideation of the mother caused the father to reconsider the safety of the children (See para [57])

The question then arose:

• Did the mother present a physical and emotional risk to the children by virtue of her alleged suicidal ideation? (See para [33])

The Court found that:

• “it was reasonable for the father to seek clarification of the opinion of the treating psychologist of the mother specifically in relation to the prospect of the mother experiencing and, if she experienced, entertaining, suicidal ideation whilst having the children in her care” (See para [52])
• “the father believed that it was necessary to withhold the children from their holiday contact with the mother in order to protect them from risk of harm, should she experience or entertain or act upon suicidal ideation whilst the children were in her care” (See para [55])
• the belief of the father was based on reasonable grounds (See para [55])

The consequences that flowed from confronting the reality of the condition of the mother who was the friend of my friend were profound, both for the mother and her family. Early or earlier intervention may have provided a less profound impact upon those involved.

Ignoring the reality of what making the manipulative false suicidal ideation claim evidenced will not make it go away. Denying the benefits early intervention can bring to the situation reduces the treatment and management options for the entire situation.

Whilst the maker of the manipulative false suicidal ideation claim may revel in their success after seemingly achieving their attention-seeking or narrative controlling goal, the reality of their condition and disposition will not go away. The need for professional medical and mental health assistance will continue and by ignoring early intervention, the available treatment options are reduced.

Other consequences flow from making the suicide threat. Where there are children involved in the relationship, the person making the suicide threat should expect that threat to be the subject of a Child Concern Report with the Department of Children’s Services. It is conceivable that the parent not making the threat may then be fearful for the safety of the children  and concerned about the ongoing mental health of the parent who made the threat. Consequently the parent not making the threat may require that time spent with the children by the parent who made the threat be supervised by a responsible adult.

Whatever was the personal situation of the maker of the manipulative false suicidal ideation claim before it was made, it changed upon their voluntary act of making the claim. That act opened the door to scrutiny of their circumstances and if such scrutiny is not welcome in the life of the author, perhaps that is something which should have been considered before the claim was made. They have exposed their condition and their circumstances. Wilful blindness to the implications of that exposure is not the solution.

Reconciliation Requires Humility, Sincerity, Remorse and Contrition

In the movie Notting Hill (1999) the character played by Julia Roberts attends the bookshop where the character played by Hugh Grant works. She wants to resume their romantic relationship. Her request is resplendent with humility and sincerity. At its height she says,
“And don’t forget, I'm just a girl, standing in front of a boy, asking him to love her.”

The response of the Hugh Grant character is sensible in terms of protecting himself and based on a realistic assessment of their lives together and apart to that point. In a very pleasant conversation, he declines her request. The Julia Roberts character leaves his bookshop and goes about her business.

The Hugh Grant character reflects upon his decision to decline to resume the romantic relationship with the Julia Roberts character and realises he has made a mistake. Subsequently an opportunity presents itself for both of them to be at the same place at the same time. The Hugh Grant character seizes that opportunity and conveys to the Julia Roberts character his enthusiasm to resume their romantic relationship. His plea to the Julia Roberts character was also resplendent with humility and sincerity. Ultimately it was successful and their romantic relationship was resumed.

An Abstract Question
Shortly after I watched that movie a friend asked me an abstract question: Would I entertain a conversation from a specific former girlfriend with a view to reconciling our relationship? A lengthy conversations ensued.

I have long contended that we live in a world where people (wrongly) think it is acceptable to lie and that no adverse consequences flow from that dishonesty. That contention was put to the test rather promptly.

My friend knew a fair bit of the history and circumstances of the woman the subject of the abstract question. The woman in question had deliberately sabotaged a good relationship to pursue other relationships with other men. Her dishonesty increased markedly once she had established her relationship with one of the men. She was actively pursuing a new life and strategic friendships she had made were paying dividends for her. Flaunting her new life and her new men was a part of her strategy. She was also carefully crafting her narrative and her relationship with me was not a constituent part of that narrative. By her words and her actions, she had made it abundantly clear that I no longer served any useful purpose in her life.

I have written previously about credibility and I said independent corroboration of the contention the person with the shattered credibility seeks to make may be required in future before some people are prepared to accept that contention. As they made their aforementioned respective pleas for reconciliation, the characters of both Julia Roberts and Hugh Grant could be seen to be demonstrating humility, sincerity, remorse and contrition. It gave their pleas the necessary quality of integrity.

I told my friend who posed the abstract reconciliation question to me that I would be prepared to make the following concessions:
I would give the woman in question credit for:

• The telephone call to request meet to apologise and resume our relationship
• Getting on a plane and travelling to Brisbane
• Arranging a hotel room to have the subject discussion

Thereafter things got very difficult. The logistics of the actual meeting were then discussed. Was it a hotel where security required meeting in the foyer or could the guest proceed straight to the room? There were strengths and weaknesses in both options.

Once entry to the hotel room had been achieved the complexity of the situation became clear.

My friend and I agreed that the subject conversation could only take place without there being any interruptions by computers, telephones, television or radio. Towards the end of our relationship the woman in question had become quite fond of utilising her mobile telephone and / or her computer whilst in my company, often to contact other people. My many requests for her to not do so were all ignored. It was one of the strategies she used to sabotage the relationship.

My friend contended that once I saw the woman in question my resistance would disappear. I assured my friend that any currency the woman in question may have had in respect of her physical appearance had been spent by her appalling behaviour and her significant dishonesty. Whilst the new life the woman in question worked so assiduously to create at the end of our relationship may have suited her purpose at that time, it did nothing to endear her to me. She has a significant history of not keeping her commitments to me and I have no interest in experiencing any more of her considerable nastiness. In fact what she had achieved was a situation where I do not know what part of the history she told me was true and what part was false. She was now in a position where I would not be inclined to believe a word she said without independent corroboration.

Reflection
In the end I could not give my friend a specific answer as to what would be required to achieve the specific reconciliation she proposed in her abstract question. Whatever the woman in question said and did during that hypothetical meeting to discuss reconciliation, she would be required to demonstrate significant convincing humility, sincerity, remorse and contrition. Her plea would need to be resplendent with integrity. Then and only then might the proposed reconciliation be possible.

Whether by accident or design the Notting Hill movie had provided a rather insightful example of the reconciliation request and what one needed to do to successfully negotiate the exercise.

Insofar as the woman the subject of the abstract question is concerned, I have no realistic expectation that I will ever test my theory with her.

When Acts Done For Political Expedience Amount To Breaking The Law

Accessing and distributing restricted child support documents and information of now Independent MP Billy Gordon and his former partner, Kristy Peckham, for political expedience has become a very serious issue.

On Friday 24 April 2015 it was reported that:

• A few hours before the A Current Affair interview [on Thursday 23 April 2015], the Liberal National Party (“LNP”) handed documents to journalists detailing some of [now independent MP] Mr [Billy] Gordon's child support payments and naming his two young children.

(News)

• The Queensland Opposition has attempted to divert attention away from its release of confidential child support documents relating to Billy Gordon, instead pointing the finger at the Premier and the questions it says she still needs to answer.
• Deputy Opposition Leader John-Paul Langbroek repeatedly told journalists the issue wasn't that the LNP had released child support documents, which revealed Mr Gordon's children's names and were potentially a breach of the law.
• The documents partially shown on the program and released by the LNP to the media on Thursday ahead of its airing, show Mr Gordon is potentially once again in arrears, for more than $700.

(Brisbane Times)

On Monday 27 April 2015 it was reported that:

• Mr Springborg today defended the release by his office of copies of Mr Gordon's former partner's child support statements to journalists.
• He said the information was for background, not publication.
• "Those documents were distributed to actually indicate quite clearly that this matter, which Mr Gordon and the Premier had said had been dealt with, was not dealt with," Mr Springborg said.
• "They were distributed by way of background information, with no expectation that they were being published, and that was the information that was given to the [media] gallery at the time."

(ABC News) (The Guardian)

Comment
If the reports are accurate the Liberal National Party may be in some difficulty. The release of documents to journalists detailing some of the child support payments of Mr Gordon and naming his two (2) young children would appear to breach section 150AA(1) of the Child Support (Assessment) Act 1989 (Cth). The Penalty for such a breach is Imprisonment for up to one (1) year.

The subject revelation could hardly be said to be without knowledge as there was controversy previously about the revelations of the criminal history of Mr Gordon and that such behaviour might be unlawful. Before that fellow LNP member Mal Brough courted significant controversy when he admitted to receiving the diary of Peter Slipper, the then Speaker of the Federal Parliament and his then political rival, from James Ashby. A police enquiry was then called for in respect of Mr Brough and his behaviour.

Mr Springborg seems to admit the subject communication of relevant information behaviour.  Thus far he has demonstrated no basis in connection with relevant Child Support proceedings to be in possession of the documents and then to communicate relevant information in respect of them. Prima facie it would appear an offence has been committed and a confession to that offence has been made, albeit in an attempt to distance himself from the allegedly offending behaviour. On that basis there is substance in the call by Mr Gordon for the police to investigate the subject communication of relevant information.

Prosecution
Prosecutions in this field are not without precedent. On Monday 24 March 2014 the owner of The Courier-Mail newspaper, Queensland Newspapers, was sentenced in the District Court in Brisbane for breaching restrictions on publishing court proceedings. In 2012 it identified a family involved in a Family Court parenting dispute by publishing names and photographs of the mother and four (4) children involved.

The Court fined the newspaper $120,000 and allowed it one (1) month to pay the fine.

The Rule of Law
A significant issue in the 2014 election was the attack upon the Rule of Law by the LNP government during its term in office. The approach of the LNP to the Billy Gordon matter can be said to be a continuation of that attack. It speaks to the judgment of the LNP that it would persist with an approach found by the electorate to be repugnant. It is also curious why the LNP thinks it should be entitled to breach the law and in turn benefit from those breaches to achieve a new election and possibly return to government.

Conclusion
It is disturbing that the LNP leader can access restricted documents and distribute them as he sees fit. His explanation for so doing is not satisfactory and his behaviour and that of his party is akin to the tail trying to wag the dog.

It should not be normal practice for Queensland politicians to access any confidential data they wish. They should be subject to the law and the Rule of Law in the same way as the rest of the community.

Whilst in the circumstances the release of the documents in question on this occasion might have been attendant with more circumspection, that they were not is the responsibility of the LNP and Mr Springborg. Both have sought to pursue the Billy Gordon matter for all the political expedience they can achieve from it. That motivation is another relevant consideration when assessing the subject access to and distribution of the documents and information in question.

Prima facie an offence appears to have been committed and, in the explanation for the behaviour, Mr Springborg appears to admit to both the behaviour and the offence. There is also an issue as to public confidence in both good governance and the police. The matter is entitled to be properly investigated and on the material to hand to date, there is an understandable expectation for Mr Springborg to be prosecuted for breaching section 150AA(1) of the Child Support (Assessment) Act 1989 (Cth).

Endorsements and Credibility

Using a cross-examination technique in relation to a peripheral lie, we can see the impact inconsistent statements made as a result of a paid blind endorsement can have on the reputation of the maker of those inconsistent statements.

The Utility of a Peripheral Lie
In my cross-examination article I discussed how a peripheral lie can be used to challenge the credibility of a witness:
“A provable peripheral lie is a good friend when you are seeking to dismantle the credibility of a witness. If the witness is prepared to lie about something unimportant, then they are definitely prepared to lie about the crucial matters of the case, is how the argument goes.”

Inconsistent Statements
In Bilal & Omar [2015] FamCAFC 30 (27 February 2015) relevantly Bryant CJ, Murphy and Loughnan JJ at para [43] considered the issue of credibility of the wife.

• The wife’s affidavit deposes, and the solicitor’s certificate attests, that the wife has received advice of a certain kind.
• In defending the husband’s case, the wife clearly asserted in the witness box a position entirely inconsistent with that.
• Put simply, the wife put squarely into issue whether the advice required under s 90G had in fact been given.

At para [54] the Court agreed with the contentions of the husband that on the evidence adverse credit findings in respect of the wife were appropriate.

Blind Endorsements
ABC science commentator Dr Karl Kruszelnicki (“Dr Karl”) agreed to and did appear in a number of advertisements promoting the Intergenerational Report (“IGR”) of the Federal Government. He subsequently acknowledged he was only able to read parts of that Report before he agreed to the advertisements as the rest of the Report was under embargo by the Federal Government. The advertisements appeared without a disclosure that Dr Karl was endorsing a Report he had not read.

Once the public became aware of the contents of the Report, that it was a flawed, partisan political document, which Dr Karl acknowledged “largely ignores the impact of climate change”, there was an outcry as to the aforementioned endorsement and promotion by Dr Karl.

Dr Karl then sought to distance himself from his prior support for and endorsement of the Report.

Commentary
Dr Karl knew or ought to have known the significance of accepting an engagement to endorse a Report which he had not read. His reputation, such as it was, was sought to lend credence to the Report. Endorsing something he had not read seems to be a pretty significant error of judgment on his part. Endorse the principles you say the Report promotes, if you wish, but do not endorse the Report without reading it.

His change of position, contrition and decision “to donate any moneys received from the IGR campaign to needy Government schools” can be said to be hollow, as it only came after significant public disquiet was expressed about his endorsement of the IGR. That change of position etc can be said to be not an act he initiated.

Whilst his actions can be said to have the benefit of now focussing attention on the problems with the IGR, the damage his reputation has suffered can also be said to be significant. The lack of disclosure of the fact that Dr Karl had not read the Report he was apparently endorsing is a relevant issue. Paid blind endorsements are not worth much in terms of credibility. Integrity free endorsements should be accompanied by an appropriate warning

The impact of the aforementioned blind endorsement upon his reputation is significant. Whatever Dr Karl may purport to say now can be said to be tainted by his poor judgment and lack of research attendant with his paid endorsement of the IGR. His apparently afterthought-inspired contrition will do little to redeem his reputation in the eyes of some people.

When you look at his history and discover that in 2007 he made a statement about climate change that he subsequently admitted was wrong, his credibility takes a further battering.

His most recent foray into commentary should have been informed by his earlier experiences.

In Lee & Anor v State of Queensland [2015] QDC 83 McGill SC DCJ at para [43] found that he was not prepared to accept the evidence of the Plaintiff Mr Swindles “as reliable unless it was independently supported, or inherently probable”. Using the Lee case as a guide, independent corroboration of the contention Dr Karl seeks to make may be required in future before some people are prepared to accept that contention.

The fact that by his actions Dr Karl has educated people as to:

• the flaws in the IGR;
• the process by which the government sought to promote it; and
• the damage a paid blind endorsement without any accompanying disclosure can do to a reputation,

may be little consolation to him as he reflects upon putting his reputation in jeopardy and in circumstances which were entirely avoidable.

The Narcissist Cries Wolf

In The Windmills of Your Mind I spoke of:

• Providing assistance or support for someone in need involves doing what needs to be done from the point of view of the patient or client
• Services that are not available when needed can have devastating, perhaps even catastrophic consequences for the person seeking assistance
• Recommending that a client or a patient seek assistance or treatment from someone who in the end renders no productive assistance can be deflating and at times even destructive
• All parties must relevantly and appropriately invest in the relationship of trust
• If no productive advice or assistance is forthcoming, the patient or client can be discouraged from being so forthcoming in the future. That can have a detrimental effect on their motivation to seek advice or assistance in the future.

False Claims of Suicidal Ideation
Helpers are discouraged from rendering assistance where there are false claims of suicidal ideation.

In the case to which I will refer in this post, I had significant doubts as to the credibility of the narcissistic person in question (“the Narcissist”) on some matters I considered relevant to their circumstances. In my view, full disclosure was not one of their strengths.

The Narcissist had formed a view about something. I did not share their view.

On the day in question I received several text messages from the Narcissist using their work mobile telephone. The last message was the one which concerned me the most. I did not reply to it and I have had no further contact with the Narcissist since receiving that message.

The subject message contained suicidal ideation. Relevantly it read: "I feel like killing myself today."

Later that day the Narcissist was visible elsewhere and was seemingly in good spirits. In subsequent appearances the Narcissist continued to seem in good spirits, in fact they seemed to be revelling in the new circumstances they had created for themself.

The reference in the subject text message to suicidal ideation was something that concerned and upset me.  It was not the first time the Narcissist had raised suicidal ideation as a topic. It had been raised on at least one (1) prior occasion by them and there were at least two (2) hysterical telephone calls, which were a complete overreaction to the situation which presented itself at the relevant times. I was aware that there were significant developments in the life of the Narcissist at the time which placed them under much more pressure than would ordinarily be the case.

I was in the company of another adult when I received the message and we had a discussion about it shortly afterwards. I did not consider that the Narcissist was doing anything more than trying to manipulate me, bully me and guilt me into behaving in a way consistent with their wishes.

I found it disturbing that the Narcissist had easy access to many qualified medical practitioners, including psychiatrists, psychologists and general practitioners, yet chose to communicate their difficulties in the way they did. Eight (8) months earlier the Narcissist was able to access a psychiatrist from their work to engage in a public activity with them for a purpose which suited their agenda. Apparently the Narcissist did not consult any of their work colleagues, nor did they consult any of their friends or family about their situation on the day they sent the manipulative, false suicidal ideation claim message to me. In respect of that message, the Narcissist knew or would be expected to know:

• The policy of their employer about suicide threat risk; and
• The consequences of an expression of suicidal ideation.

The Narcissist communicated the message to me on their work mobile telephone, in my view thereby compromising not only themself, but also their employer.

Once the message was received by me it enlivened several issues:

• The mental stability of the Narcissist
• What impact did the new circumstances in which the Narcissist found themself have upon them?
• I had noticed a marked change in the behaviour of the Narcissist in relatively recent times
• The level of dishonesty of the Narcissist had increased measurably
• The extent, if any, that the message I received might be indicative of the Narcissist experiencing genuine mental health issues
• There is a theory that someone who makes manipulative suicide threats is someone who needs immediate professional attention
• To what extent am I obliged to raise my concerns with the Narcissist?

I was also annoyed that the Narcissist would resort to sending me a text message indicating suicidal ideation on their part in their campaign to manipulate and control what I say and do in relation to them. The selfish attention-seeking of the Narcissist is bereft of integrity.

Result
In their article “Suicide Risk Assessment: Where Are We Now? - A definitive way to identify patients who will suicide remains elusive”, Christopher J Ryan ^{1 2} and Matthew M Large ^{3 4} said the following:

• "Suicidal ideation, for example, is not useful as an indicator of the likelihood of future suicide, but it is an invaluable sign of a person’s inner despair."
• “We cannot prevent tragedy by trying to identify those few souls who will be consumed by it. We must instead gather a comprehensive picture of each individual patient, and use this to tailor optimal management for the patients and families needing our care.”

Observations
Some observations from a friend about making a false claim of suicidal ideation are instructive:

• It is manipulation at it's worst.
• Anyone who has ever been touched by suicide would be mortified that someone would use those words to make another person feel bad.
• Someone making such a false statement has no respect for people that are truly suffering.

Making a false claim of suicidal ideation is a far from ideal way to communicate one’s inner despair. Using it as a manipulation tool to achieve an ulterior purpose is appalling behaviour and a form of emotional blackmail and emotional abuse. It detracts from and devalues people who make a genuine cry for help. Further it can discourage people from responding and rendering assistance to those who really are suicidal.

Nothing positive is achieved by making a false claim of suicidal ideation.

---

1 (MB BS, MHL, FRANZCP, Senior Clinical Lecturer)^↩
2 Discipline of Psychiatry and the Centre for Values, Ethics and the Law in Medicine, University of Sydney, Sydney, NSW.^↩
3 (BSc(Med), MB BS, FRANZCP, Senior Clinical Lecturer)^↩
4 School of Psychiatry, University of New South Wales, Sydney, NSW.^↩

Blinded By The Light

Might Get Fooled Again
As I reflected upon my To Thine Own Self Be True piece I recalled a female client, who had separated from the father of their child and formed a romantic relationship with a new man. She saw fit to relocate from the father of the child and do so in circumstances that incurred the wrath of the Federal Magistrate hearing the trial. It was not surprising to hear the mother list a number of complaints of the personality and make up of the father. That is often standard fare in these matters.

What was of more interest to me was that the new man in her life was essentially a carbon copy of the man he replaced, with the exception that he appeared to be a nicer, more considerate version. However the writing was on the wall that the mother was in for a similar future with the new man to that she had with the former partner, if the new man did not maintain his considerate disposition. He was a man without any legal training whatsoever, but that did not stop him from informing my solicitor and I that he could give crucial evidence at the trial and it was evidence that would definitely support the case of the mother.

He was utterly wrong in that assessment, but that was not something which occurred to him. I politely told him the case did not need the benefit of his evidence and insofar as the case is concerned, that is where the matter ended. However as to my overall view of the case, his controlling and overbearing personality was of some concern to me. The mother may very well have been making the same mistake the second time as she made the first time and that may not be a good outcome for the children of the relationships.

Starstruck
Rarely are litigants attuned to the nuances of cross-examination. They often need to learn that the answers they give to questions posed to them can reveal aspects of them and their lives that they would rather not reveal. The answers given and the revelations made in relation to one line of enquiry can end up supporting another, seemingly unrelated, line of enquiry.

More recently a mother consulted me for advice. There was clearly a new man in her life, although she refused to characterise him as her lover. She certainly refused to make a public declaration that she and the new man were in a romantic relationship. Nevertheless her answers and behaviour revealed the strong influence on her life that this new man was achieving. From the information the mother provided it could be clearly seen that the new man was a vain, self-promoter, who was primarily interested in his own advancement in life. Others were merely an adjunct to it and to him. He had plenty of opinions and he was keen to share them. In so doing the ultimate cause he promoted was to make himself the centre of attention.

In conversation with the mother I often heard her reveal details of her interaction with the new man. The impact he had had upon her life was significant, perhaps even profound. Although it is difficult to say that such impact was ultimately positive. The effect of that impact was something she appeared to have significantly undervalued as a relevant issue.

Whilst possessed of many opinions and not being shy about sharing them, his knowledge was deficient in terms of preparing and presenting family law litigation successfully to courts.  It was not surprising to hear the mother reveal that in conversation with the new man, he was highly critical of me and the advice I had provided her. It was sad to see the extent to which she was starstruck by him. Taking his advice over mine was not going to enhance her litigation position. In fact, it was going to harm it. Ultimately, all he cared about was himself.

What was missing from their interaction was a dispassionate view of their relationship and its impact. The new man lacked the legal knowledge, skills and acumen required to enable the mother to properly advance her litigation and make fully informed decisions in respect of it. That obvious deficiency on his part was manifested acutely when the mother continued to consult me for legal advice. Legal advice the mother could not obtain anywhere else, due to the unique knowledge and skill she acknowledged that I possessed.

His actions highlighted his insecurity and brittle self-confidence. Objectively assessing the actions of the mother, she had replaced one poor choice for a partner with another. Using history as a guide, the future of the new relationship is in real danger of traversing the same path as the old relationship. That is hardly likely to be comforting for the children of her relationships.

The Impact of The Seduction
Those men do not act in the best interests of the children or anyone else, they act in their own best interests. Their charm offensive is invariably destructive for the women and often also for the children. That involvement with those men may lead to destructive or self-destructive behaviour on the part of the women is of little concern to them. It is their own power they wish to maintain. Their seduction of the women is based on maintaining their power.

As lawyers, we can advise these women, however they become very skilled at hearing only what they wish to hear and criticism of these men often falls on deaf ears. A different outcome might occur, if the criticism is able to be agitated within the litigation. However those men try to keep their bad qualities out of any relevant litigation, so that they are not the subject of any scrutiny. That includes manipulation of the relevant women to preclude any adverse comment about them.

Ultimately, as I said in naming my short stories blog, you can lead a horse to water, but you cannot make it drink.

Cross-Examination: Understanding and Constructing The Complexities of The Vibe

Cross-examination is a fascinating endeavour. No two people do it the same and executing it effectively invariably takes time and practice.  Refining the skill involves patience, insight and reflection. Understanding the subject material is crucial, as is appreciating the outcome sought to be achieved by the cross-examination.

Instructions of the client will form a general guide as to what approach ought be taken, but they are not the only consideration. Further enquiries and / or investigations may be required and information gained from those enquiries or investigations may suggest that a different approach to the one apparently proposed by the client is prudent.  That new information may also require further legal advice to be given and that can also change the approach the cross-examination ought take.

Sometimes when you are seemingly not thinking about a case, something about it appears in your thoughts and it causes you to revisit the case and your approach to it. A case had occupied my thoughts for some time. It involved a complex matrix of facts, including:

• Whether the parties had disclosed all relevant material;
• Whether the lawyers retained had made proper prudent enquiries to be fully informed about the case;
• Whether the lawyers had advised the litigants what result a Court might reach, if it had to decide the matter; and
• What personal and financial tolls might be involved with the various options available for the case.

This case was even more complex because it also involved the children of the litigants and there was an overriding requirement that any decision made in respect of the children would be in their best interests.

I knew facts about the case that the litigants seemed unwilling to agitate. My view was that those facts could have a significant impact on the outcome of the case, if the Court were minded to take a particular view of them. That was not the only view that was open on those facts.

I had had significant discussions with one of the litigants (L1 for the purposes of this article). L1 was keen to tell their narrative and not keen to be moved from it onto any other narrative. Conversation with L1 could at times be rather difficult.

My approach is to endeavour to understand the entire case and see what impression that case makes upon me. I also try to appreciate how the Judge might view the case. Litigants are not always keen to embrace such an expansive view of their situation. Often they feel that their narrative should be accepted without challenge. That is a shortsighted view and one unlikely to prepare a litigant for the rigours of the court room experience.

I was doing something completely unrelated to the case in question when I found my mind replaying a part of the narrative of L1. My impression was that the narrative sounded forced, that it was trying to convince me of a situation or a state of events, but it was not doing so in a compelling way. I realised that I had felt similarly in the past when that particular topic was discussed by L1. Credibility was a very real issue in the case and an alternative narrative could be told about L1 that would cast them in a very different light. The alternative narrative could have a significant impact on the result of the case.

L1 was not interested in the alternative narrative being discussed. They were also not particularly interested in understanding that the other litigant (L2 for the purposes of this article) could use inferences to support the alternate case and those inferences could be supported by successfully challenging the credibility of L1.

The nuance of the forced narrative resonated strongly with me. It suggested the author (L1) was not being truthful. I thought that would be the approach I would endeavour to take, if I were charged with the task of making the alternative narrative. A provable peripheral lie is a good friend when you are seeking to dismantle the credibility of a witness. If the witness is prepared to lie about something unimportant, then they are definitely prepared to lie about the crucial matters of the case, is how the argument goes. The forced narrative impressed me as being akin to a peripheral lie and it made me wonder what L1 was trying to hide.

In the abstract it also made me happy because I thought the forced narrative could be used to support the alternative narrative, which was based on a considerable number of inferences. The alternative narrative would commence with establishing a number of discrete facts, perhaps not immediately appearing as relevant to the overall outcome sought to be achieved. Having established the first set of facts, there was a second set of facts that needed to be established. Those facts were not always apparently directly connected to the first set of facts. With all those facts now established, some observations as to behaviour could be made. It was then possible to suggest that what may appear to be isolated and unrelated events, were in fact part of a rather more elaborate behaviour that was in stark contrast to the pleasant narrative L1 wanted to tell. The further one went through the inferences narrative proposed by L2, the stronger the inferences became that L1 was not necessarily possessed of good behaviour.

The significance of attacking the character or personal behaviour of L1 was to support the overall argument that their focus was not primarily on the children and parenting the children, but rather on the social life of L1. Accordingly L2 should have more time with children.

The overall argument having been understood, a process needed to be identified by which L2 could make their case, in circumstances where there were not necessarily facts obviously appearing to support them. The opportunity to pursue that narrative arose via the narrative of L1 and the fact that at a significant point it seemed to be forced, suggesting it was not true.

Effective cross-examination is a complex and multi-layered endeavour. It need not be clear to those watching cross-examination at any given time what the ultimate goal of the case may be, but working towards that ultimate goal is crucial. Similarly within the case something may arise that causes you to change your approach, if you are to retain hope in achieving your ultimate goal. There are also times when the reputation of a witness can be seriously challenged, but it need not necessarily be restored for your overall case to be successful.

As I said at the outset, no two people do cross-examination the same. A seemingly unrelated thought inspired reflection on the case and that provided a greater appreciation of the evidence. From that I could determine how cross-examination might be undertaken. Whether the Judge would ultimately be persuaded by my cross-examination and submissions is another matter, but I was confident I could mount a compelling argument and in doing so, I would enliven the chances of the client being successful.