Bell CJ bites back at Jackman J

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Editor’s picks  

• Wild v Meduri - NSW Caselaw

  Bell CJ at [247] - In a previous judgment, Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 (Lantrak), Jackman J said of his decision in Kane that:

  “My remarks were primarily directed to ending the longstanding practice in New South Wales of drafting affidavits in a way which converted a witness’s actual memory of only the gist of a conversation into direct speech, thus giving a false appearance of verbatim memory, prefaced by the confusing formula that the conversation occurred ‘in words to the following effect’.”

  [248] It is, in my view and with respect to his Honour, both unorthodox and undesirable for a single judge of any court unilaterally to arrogate to him or herself the “ending [of a] longstanding practice in New South Wales” (or any other jurisdiction). Matters of practice are relied upon by practitioners in the discharge of their daily work, and unilateral change sows confusion and is apt to generate inconsistency and uncertainty amongst the profession. A case for reform of a practice, if subject to persuasive and cogent criticism, is best worked out in and after consultation.’
   

  • See also White JA from [283] and Kirk JA from [333]
     

• Kawana v The King [2024] VSCA 219 (26 September 2024)

  [20] On Wednesday 5 April, upon the resumption of the proceeding, the judge informed the parties that she had been provided with a further note from one of the jurors. The note read:

  On 4 April, 2023, during our deliberations, one of the jurors known as Zac who sits second from the judge’s left in the middle row when we are in the jury box, addressed all jurors and said: “I may be prepared to negotiate with you. I may be prepared to do a deal” – ‘you’ meaning all the jurors. It was said in a firm, loud voice and as though the rest of jurors are beholden or answerable to him. He then referred to some of the charges and said along the lines of: “I may be prepared to say guilty to some charges if you say not guilty to others” as he shuffled through the charges sheet. Another juror said something like, “No, we’re not doing that”. I believe another said, “No, that’s not how it is done”. There were similar comments from others. [Zac’s] response in a loud, intimidating and dismissive voice was, “Fine. I say no to all then”. He then angrily crossed his arms. Apart from this not being anywhere near what we have been asked to do, I saw it as an attempt to intimidate, bribe and coerce us into a decision. It was like he was holding us to ransom.
   

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