My discussion with colleagues whose views I respect has not produced a satisfactory explanation of the conduct of Walter Sofronoff, KC, let alone a defence.

I wish to raise three issues.

1.  ‘Bias’ is defined in the Compact O E D as ‘an inclination or prejudice in favour of or against a particular person or thing.’  In bowls, it is the tendency of the ball to deviate from the straight because of the way the ball is weighted.  You can control the level of deviation by the weighting you apply to the ball.  Albrechtsen had fifty-one goes at it in her secret or ‘private’ correspondence with Sofronoff.  She could not have asked for more from him in his public findings.  I follow that you can regard the correspondence as incidents giving rise to an appearance of bias.  But is it not also evidence of the existence of actual bias?  I have no doubt there are loads of authority on the point, but I ask the question on behalf of the people on the 605 bus.  I suspect that any answer may savour of the metaphysical, which is not the way of our law.
2. Whether the bias is actual or apparent, why were not all findings against Sofronoff sufficient to warrant an order of the court vitiating all findings against the victim of the bias?  Mr Drummond is aggrieved by a serious failure of due process.  Has the law done enough to vindicate him?  The answer is No, if you look at the venom unleashed in the Australian today.  As to the conduct of Albrechtsen, in The Common Law, O W Holmes said that ‘when we call an act malicious in common speech, we mean that harm to another person was intended to come of it, and that such harm was desired for its own sake as an end in itself.  For the purposes of the criminal law, however, intent alone was found to be important…’
3. Who paid for the lunch?

If you have looked at the findings of Justice Kaye on the dealings between Walter Sofronoff, KC and Janet Albrechtsen, you may have thought that the latter might keep a low profile about the singular debacle wrought by the two of them in the administration of justice in this country.  It was staggeringly inept.  If you thought that, you were wrong.

The page one report in The Australian today is headed ‘DPP’s reputation remains in tatters.’  The first par. reads:

Shane Drumgold has won a Pyrrhic victory because he has failed to restore his reputation.

The last par. reads:

Each day we are learning more about prosecutorial overreach not just in the ACT, but in other jurisdictions.  If not for the work by many journalists at this newspaper, the Australian public had little idea about deeply troubling issues concerning the criminal justice system.  There is more to do on that front.

Any apology?  Au contraire.  The lady is a victim.  Her right of privacy has been infringed.

Although the finding of apprehended by Justice Sten Kaye of apprehended bias against Sofronoff is of great interest to some because it involves delving into the private communications between the former judge and myself, Drummond’s legal challenge in the ACT Supreme Court amounts to yet another own goal.  Drumgold got an order for costs, but he didn’t get his reputation back.

The rest of the piece is a diatribe against Drumgold.  There is no pretence of any balance.  The lady is a known crusader.

The effrontery and divorce from reality is Trumpian.

The piece supports the following propositions.

1.  Albrechtsen was a loaded gun – viciously loaded – against Drumgold from the start.  She still is – now, more so, in self-defence.
2.  Any pretence of impartiality on her part was just that.
3. Sofronoff must have been or should have been aware of both of the above.
4. If follows that his conduct in dealing with her is an affront to our notions of fairness and common decency.
5. As a result, public faith in the findings of this inquiry and the administration of justice has fallen.
6. As a further result, the apprehension that many judges feel about some in the press will now be seen to be justified – Albrechtsen will be seen as lowering confidence in the press (except of course for the base).
7. The Australian is not worth the paper it is written on.  (And yes, here I own up to prejudice.  I have held that view for very many years.)

But what really gets to us is just how brazen people like Rupert or Lachlan Murdoch or Donald Trump are.

Whatever else may be said of the two protagonists, they are not novices.  There were 51 communications ‘off the record’.  Sofronoff was obliged to act fairly and openly.  He entered into this correspondence on the condition that it would not be revealed to the subject of the inquiry.  Are we really asked to believe that neither saw that this was as elemental a case of conflict of interest as you could find? 

Why is not the whole report now as vitiated in law as it is in public opinion?

I was involved in conducting public hearings for thirty years.  You only have to do one to know that what happened here was outrageous.

Let me put it this way.  Your professional conduct is the subject of a public inquiry conducted by an eminent lawyer with all the credentials for that purpose.  You are being pursued in the press by someone who makes a living from that kind of campaign and public vilification.  The person hearing the matter then finds against you in very grave and personal terms.  Then you find he has been secretly corresponding with your enemy all the time.  Which of them do you want to throttle first?

‘Racism’ is a fraught term.  I try not to us it. It involves two elements – an assertion that people can distinguished from other people by reference to their racial origin or colour, and that they can be denied rights or opportunities as a result of that distinction.  A clear example would be a club or theatre denying entry to people of colour – that is, by allowing entry only to white people.

A theatre in London will put on a play about slavery and on some nights allow entry only to people of colour – on those nights, they will deny entry to white people.  That course falls squarely within the definition of racism.

What is the rationale?  Because of the treatment of people of colour in the past, they are entitled to pursue a course that they would otherwise condemn.  Some might call this ‘playing the victim card.’

That looks to me like: ‘We are entitled to be racist in this case because we have suffered from racism in the past.’  And that looks to me to be a simple invocation of the notion that the ends justify the means.  And it apparently matters not that the people complaining of racism are now promoting it.

And that looks to me to be snapshot of a lot of the evil of the world today.

I knew him….

‘Someone must have traduced Joseph K, for without having done anything wrong, he was arrested one fine morning.’

What we have just done to Justice Lasry defies both belief and all decency.

Yes, we have dreadful problems in the way we dispose of cases in our courts, but reacting in anything like this way can only dint confidence in our judges even further. 

And make it harder for them to do their job, and for us to get the best people.  Why accept a position where you are accorded the dignity and respect not of a figure out of Franz Kafka, but of a Commissar in a novel by Boris Pasternak?

I have some experience of these things.  Good judges don’t run scared.  Nor should any judge be seen to owe fealty to the civil service of the government.

There is something rotten in the State of Victoria.

Romeo and Juliet is a play about a tragedy brought about by the meeting of two rivers – the cyclical hate and killing of the blood feud, or vendetta, and the loss of judgment than can afflict teenagers when they first feel hot passion.  One is a force for life; the other a force for death.  Both involve heat.  And in that part of the world that brought us Boccaccio and Petrarch, and the Guelphs and Ghibellines, and the Mafia, neither was in short supply.

The great American judge and jurist Oliver Wendell Holmes said that ‘the Roman law started from the blood feud, and all the authorities agree that the German law began in that way.’  The phrase ‘German law’ there means our law, since English law grew not from Roman law, but from the laws of the Angles and Saxons.  The compact OED has for vendetta ‘1 a prolonged bitter quarrel with or complaint against someone 2 a prolonged feud between families in which people are murdered in revenge for previous murders.’  That fits the Capulets and Montagues.  The problem about breaking the cycle had been looked at two thousand years before in the Oresteia.

Sex is, well, sex.  We would cease to exist without it, but all hell can break loose in that period described as puberty – which is where the thirteen-year-old Juliet, still minded by her nurse, finds herself.

When those two currents meet, you may get mayhem – of precisely the kind described in this play.  We learn immediately of ‘ancient grudge’ and ‘new mutiny,’ where ‘civil blood makes civil hands unclean,’ so that ‘a pair of star-crossed lovers take their life’ – and these ‘misadventured piteous overthrows….with their death bury their parents’ strife’. 

How else could that strife end? 

There are three key words in the lexicon of those in a blood feud – respect, insult, and honour.  You may recall the scene in Godfather III when one Mafia don quits a meeting hissing that the Godfather has not shown him enough respect – and then all hell break loose, and the building is raked with machine gun fire.

At the start of the play, Romeo thinks he’s in love with Rosaline.  That she is a Capulet does not appear to trouble him.  He’s more worried about what usually troubles boys – her commitment to ‘chastity’ (1 1 213 and 221).  His mate Benvolio suggests they gatecrash a Capulet party so that Romeo can compare Rosaline with other young women (and as we know, with one look at Juliet, Rosaline goes clean out the window).  The Montagues know this will be seen as a mortal insult by the Capulets.  They will go masked – like the trio in Don Giovanni – but Romeo knows this is not a good idea – his mind misgives (1.4.47 and 106).  Such is the rashness, and price, of the young male ego.  Another mate, Mercutio, who has about him a kind of death wish, launches into a speech about nothing, and the troop marches on – and in.

Inevitably, they are sprung, and by the Capulet point man, a very nasty piece of work called Tybalt, who immediately calls for his rapier to answer this ‘scorn at our solemnity’ (1.5.59 and 65).  Capulet talks him out of it at the party, but Tybalt is not satisfied.  He serves a written challenge on Montague. 

So, when the day is hot, and the Capulets are abroad, and the ‘mad blood’ is stirring, Benvolio knows a brawl is inevitable and suggests to Mercutio that they retire (3.1.1-4).  But Mercutio is as hot for a fight as Tybalt, and you know the rest.

This happens while Romeo meets, falls for, and marries Juliet in some of the most gorgeous and best-known language in our letters. 

In the result, we may overlook that within a couple of days, Romeo has killed two people, the first a Capulet, the other a relative of the prince who was scheduled to marry Juliet, and who appears to have been beyond a reproach for a young noble of that time.

Romeo kills twice in hot blood, but that was not a legal excuse then – it flouted the edict of the prince – and it was only a moral excuse if you subscribed to the law of the vendetta.  Romeo did not do so – he had seen it all before and he had had enough (1.1 174-186).  His first killing, Tybalt, is the vendetta tit for tat, pure and simple.

He kills Paris when mad with grief and bent on suicide – but only suicide in stage-mannered way.  Paris had every right to arrest Romeo as a felon – if not a ghoul – but the crazed Romeo can only respond ‘Wilt thou provoke me?  Then, have at me, boy!’  The insults flow in even in death found in heat.  (‘Boy’ was the final insult in Coriolanus.)  Then Romeo sees who he has killed and recalls that his servant had told him that ‘Paris should have married Juliet’ and he says that he will bury Paris ‘in a triumphant grave’(5.3.78 and 83) – whatever that means.  He even comes to terms with Tybalt.

Tybalt, liest thou there in thy bloody sheet?
O, what more favour can I do to thee,
Than with that hand that cut thy youth in twain
To sunder his that was thine enemy?
Forgive me, cousin!   (5.3.97-101).

It is almost Wagnerian, but it does not strike us like that.  We are wrung out – and in less than half of five hours.  We find it easier to come to grips with the youth of Juliet than that of Romeo – in practice, it is the other way around.  Girls mature faster than boys.  The difference here is I suppose, that when it became for the killing, it was the boys who went for their rapiers.  The vendetta was male thing.

Such is the power of the playwright, that it does not occur to us that had our hero not killed himself, he may have faced two counts of murder – even putting to one side the edict of his ‘moved prince’ and the ineluctable force of the vendetta.  All we know is:

A glooming peace this morning with it brings;
The sun, for sorrow, will not show his head:
Go hence, to have more talk of these sad things;
Some shall be pardon’d, and some punished:
For never was a story of more woe.
Than this of Juliet and her Romeo.

If the producers of the Arkangel set of the complete plays of Shakespeare had set out to show The Merchant of Venice as the worst play ever written, they have succeeded.  The problem is not so much Shylock, as the boring ordinariness and vanity of the rest of them.  And W H Auden in his Lectures on Shakespeare does not help.  He says ‘The only racial remark in the play is made by Shylock, and the Christians refute it.  Religious differences in the play are treated frivolously: the question is not one of belief, but conformity.’  That is a false dilemma, and the whole play is riddled with expressions of contempt going both ways – and taking a pound of flesh by due process of law does not sound ‘frivolous’.

There is no doubt that Auden was very seriously bright.  I at first thought he could have made a brilliant advocate.  The lectures are full of lightning flashes.  But too often, the lightning hits the dunny.  And that is fatal in advocacy. 

And if he expressed his views on Desdemona to a modern U S audience now, they would burn the place down.

But here he is on the fall of Rome as shown in Julius Caesar.

It was a society doomed not by the evil passions of selfish individuals, because such passions always exist, but by an intellectual and spiritual failure of nerve that made the society incapable of coping with its situation, which is why the noble Brutus is even more at sea in the play than the unscrupulous and brutal Antony.

A failure of nerve led to the collapse of Europe in the 1930s, and threatens the U S now. 

After the balcony scene in Romeo and Juliet, Antony’s funeral oration is probably the best-known speech in Shakespeare.  Antony is utterly unscrupulous, and the results are utterly brutal.  The two subsequent scenes in that play are in my view the best displays of just how vicious politics can get on our stage.  The first scene is a lynching.  The second is a Mafia like settlement of the death list compiled in the coldest blood by the winners.

(But when we come to Antony and Cleopatra – Auden’s favourite of these plays – Antony is a bored playboy, unable to break with his ‘Egyptian dish,’ and he is put away in straight sets by the man Gibbon described as a ‘crafty tyrant.’)

But his remarks on Prince Hal, later King Henry IV, really caught my eye.  He agrees with the observation of Falstaff that I do not think is sufficiently noticed: ‘Thou art essentially mad without seeming so.’

Hal has no self….He can be a continuous success because he can understand any situation, he can control himself, and he has physical and mental charm.  But he is a cold fish……The most brutal scene in Shakespeare is Henry’s wooing of Katherine. 

Whacko!  Prince Hal is all front – and nothing else.  Think of the seriously bad bastards in history, and then ask how apt that description might be for them.

Or try this for an exam question:

Sir John Falstaff is a ratbag, but if you want the real deal of the complete ratbag, go to Prince Hal.  Discuss.

Networking and identity politics are two terms I avoid.  They ooze bullshit.  But according to a piece in The Age this morning,the two terms may be related. 

The author refers to article ‘Why Women Build Less Powerful Relationships Than Men’.  It aimed to address ‘an additional layer’ –

….by looking at personal hesitation, relational morality and gendered modesty.  And, even more specifically, women who feel uncomfortable with the exploitative nature of networking, and women who often network with lower level peers due to lack of confidence in their own network contribution…

Later the author suggests that networking for women should be –

….curated in a way that is well informed, thoughtful and empathetic to women’s needs instead of the ‘utilitarian or instrumental’ events we’ve historically had to sit through….focussing on one-on-one relationships rather than larger team bonding exercises, which can be less intimidating to form and are more likely to be pursued with purpose.

As it seems to me, the inarticulate premise is that at least when it comes to networking, women are different to men, and have special needs.

I do not subscribe to that view, which looks at best unfortunate to me.

And I would like to get the views on ‘gendered modesty’ from Kylie Minogue or Taylor Swift.

Identity politics.

Two letters to The Age

PUBLISHED

Dear Editor,

I have trouble following the difference in the moral standing of a tradie bagging a duck with a shottie, and a surgeon taking a trout with a dry fly.  Nevertheless, I understand and respect the views of those who wish to ban duck hunting.  That is a matter on which reasonable minds may differ, but the case of the government that duck shooting is recreation for the people is dreadful nonsense. 

The leading recreation for the populus of ancient Rome was viewing gladiators at the Colosseum.  It reached its pinnacle with throwing Christians to the lions.  Later in England, hanging, drawing and quartering was a real day out for the masses.  Even under Queen Victoria, there was nothing like an afternoon out at the gallows at Tyburn.  The pick pockets had a picnic among a people entranced.

The possibilities are endless.  What about a hanging at half time at the Grand Final at the MCG to add a different sauce to the Four ‘n Twenty?

Yours truly,

NOT PUBLISHED

Dear Editor,

Australia Day has meant, at best, nothing to me for half my life. 

Other nations celebrate what they call ‘independence’.  We have never become independent of the English Crown, and the opening of a jail is hardly an occasion to celebrate.

The U S and France celebrate their nationhood on sacred days in July.  Each was, they say, the day they seized power from the old regime.  Each was the start of a period of shocking violence and killing and a form of civil war.  Of course, people of colour never got the benefit of all that guff about liberty, equality, and fraternity.

It was the same here after 26 January 1788 – except that here the white people took over under what they now concede were false imperialist pretenses, and more than two centuries later, we are still yet to come to terms with the victims of our most grievous wrongs.

How then can we celebrate such a day? 

Because we as a nation have not owned up or grown up.

Yours truly

Duck shooting – Australia Day

If you maintain, or hide behind, a front for long enough, you might find there is not much left when the front comes down.  If you fabricate your view of the world for long enough, you may not be able to deal with reality when the need to do so is imposed upon you. 

The person has not been born who can hold out indefinitely against the world.  We describe as mad those who think they are God.  Even the ensainted founders of religious followings have to pass into the ground or the fires – even if some of their followers maintain their faith by what the rest of the world sees as rather silly myths.

Timon of Athens is one those men we meet who have no gear box.  They have two speeds – nought and flat out.  In each direction.  He was a man of extremes – doomed to live on the edge – and therefore doomed to fall off it.  And we know that the results of the fall will be a general overturn, what we call a catastrophe.

He lives in the upper reaches of Athenian society – but not at the peak: Country Life, and Tatler, not Debrett.  He feels the need to uphold his standing by lavish parties and gifts for his betters.  And they soak it up most cynically. 

Timon is not doing this for charity.  He is doing it for himself.  You may be able to pay for a public face that gives you some public standing, but you cannot buy friendship.  You cannot even buy respect.  (Ask Dr Twiggy Forrest.  The Stock Market now takes an informed interest in his purported claims on our conscience.  And don’t even mention Elon Musk.)

The fall is inevitable, as are its awful consequences.  Dr Johnson was spot on.

The catastrophe affords a very powerful warning against that ostentatious liberality, which scatters bounty, but confers no benefits, and buys flattery, but not friendship.

What is left of the persona of Timon is a retreat from reality that verges on madness, and a venomous loathing for those who fed his habit and wallowed in his fake benevolence.  He lashes out poisonously like a taipan you have trodden on.  Dr Johnson saw ‘a sullen haughtiness and malignant dignity suitable at once to the lord and man-hunter.’

It is very hard to put this play on in a way that entertains and holds the audience.  No one has ever done it for me.  The Arkangel has Alan Howard going clean over the top.  That is OK in Coriolanus, who obviously wills his own destruction, but not for this dire play – especially when a clarinet screeches like a thumbnail dragged across a blackboard.  That is now the most painful experience a play of this author has given me.

Donald Trump has a lot in common with Timon.  He is all front, with no core.  It is hard to see anything he values except his own standing.  His wealth is very hard to trace – as is any skill in acquiring it.  His attachment to himself is all consuming.  He wills away reality if it does not suit him.  He does not have a friend in the world, but, like Timon, surrounds himself with flatterers, not by gifts so much as promises.  And promises mean as much to Donald Trump as books of account meant to Timon.  He is brutal to those under him – which in his eyes means almost everyone.  If a supporter wavers, that person is discarded.  

One thing Trump and Timon have together is the complete absence of moderation or restraint.

One real difference between Trump and Timon is that Trump associates with outright crooks in a manner that Timon did not.

Another difference I see is that I regard Trump as evil, whereas Timon is just an annoying bloody idiot.  For a community of people to work in a manner different to a bunch of gorillas, people as a whole must be capable of restraint or moderation.  Trump, like Timon, was incapable of either – and the price that may be paid by the U S and indeed the world may be frightful.

There is another similarity.  Decent people do not associate with Trump.  One of the reasons Timon of Athens is so hard to bear is that there is hardly a decent character in it, and none develops. 

The exception is the servants of Timon.  Someone said that if you want to inquire about a man, speak to his valet.  He will be best placed to see the subject close up and with no need to put on a front.  He might also be a prime target for abuse. 

Flavius is unfailingly loyal, although driven mad by Timon’s steadfast refusal to see his end coming in the books of account. 

Dr Johnson made a very interesting comment for a man of his time.

Nothing contributes more to the exaltation of Timon’s character than the zeal and fidelity of his servants.  Nothing but real virtue can be honoured by domestics: nothing but impartial kindness can gain affection from the dependants.

No one will ever say anything like that about Donald Trump.  And if the play Timon of Athens stands for anything, it is that if there is power or money on the table, the Sermon on the Mount goes clean out the window.

Men must learn now with pity to dispense;
For policy sits above conscience. (3.2.91-2)

Trump – restraint – moderation – Shakespeare – Timon of Athens

There is a group of lawyers that calls itself ‘Lawyers for Israel’ – a grouping usually associated with footy clubs.  According to The Age this morning, they induced the ABC to fire an announcer for saying something that they didn’t like. 

I think that is a dreadful thing for a group of lawyers to do. This nation, so young and immature in its white manifestation, is committed to respect for the views of different faiths and ethnic groups or tribes, and to freedom of speech. 

And those who clubbed together to get this woman fired, by acting behind her back, had the nerve to complain that she was not being impartial.

But it’s worse.  One of these malcontented activists called the Jewish lawyer for the sacked woman a ‘traitor.’  It is so very wrong to suggest that a lawyer should put their allegiance to their tribe or creed before their professional duty.  It is bloody terrifying – especially if we get the Trump defence – it was just a joke.

These people should give serious consideration to their choice of profession if they can be persuaded to debase it so casually and so grotesquely.

And do they simply have no idea of the immensity of the harm they do to the cause they purport to serve?

And the ABC should know better than to get sucked in so crassly – at the very top, we are told – by this motley of preppy, privileged, and off-colour zealots.

How many Palestinians have a direct line to Ita? 

Or are they just not as swish and cashed-up as the other side?  Are they, perhaps, just not as well-connected?  Do they not have as many friends on high?

Finally, would the ABC seek to have us believe that they would be just as ready to administer to a member of the away team what my dad used to call the bum’s rush?

Gaza - ABC – wrongful dismissal – prejudice at the ABC.