Last week I was reminded yet again why after having worked for the Commonwealth Law Courts, both in the accounts department and as a Court Recorder, why the impulse to break free of the public gallery and stand at the bar never materialised with me. Obviously as someone whose job is very much shaped by arithmetic and the law, the whole kosmos of rules and logic resonates with me (in spite of how irrational and stupid I am). When it comes to that whole other world of law which looks not at legalities and constitutions and the letter of the law but at that kosmos of things we call people, we no longer look at what is sensible but what is insane, mad, irrational, stupid, obnoxious, and daft. Instead we look at things like crime and torts and injury and hurt and damage.
The case which we were given by a legal firm, is on the face of it very similar to other Family Law cases. We have a small construction firm which employs nine people and some subcontractors, which we have been asked to value. That is so far, straightforward. The reason why we were asked to value this small construction firm, has to do with that other side of human nature, which is insane, mad, irrational, stupid, obnoxious, and daft, but blended with simple human evil.
The story laid out which was adjacent to the Family Law case which we were looking at, has to do with a Husband whom we shall call H, who is openly violent to his wife W. The Family Law case which we have to deal with has collapsed from one which was going to look at what was an equitable solution to the dissolution of the marriage, to one where W actively needs to sue H for damages. Those damages include physical violence resulting in semi-serious injury; which is likely 99.999999% the reason why W had to run away with the children.
H's case as far as I can make out, H's defence involves claiming that he had W's consent before proceeding on a course of assault and battery. Speaking as Billy Brown from Sydney Town, that theoretical reasonable person, I just don't see how this argument holds any more water than the HMAS Colander. Rub my nose in the dirt and call me stinky but I have no idea why, or even how someone would consent to suffering assault and battery unless there was some really strange and abnormally abnormal things going on inside their brain.
Battery which is different to assault, is when the defendant must have intended the consequence of the contact with the plaintiff. Someone who pulls the trigger of a gun if they think it is unloaded, might be negligent but there might be an absence of intent. They might very well want to cause a threat but actually be too unthinking to think through the consequence of a bullet which they do not know about, striking the injured plaintiff. Here you have negligence but not requisite intention in order to be liable for a tort of battery.
Admittedly in most cases, it is very very obvious to all that someone intends to do harm. If I come at you with an axe and threaten to chop your legs down, then it should be obvious to all and everyone that I intended to make contact with the injured person; even Blind Freddy can see that. If I come at you with an axe and threaten to chop your legs down, then it is really really difficult for me to argue that I am not aware of the consequences of coming at you with an axe, and likely impossible to make the argument that I had your consent, to stick.
So this is why in this case, I see not possible circumstances given the nature and frequency of H's striking of W that there can be anything other than clear and obvious intention to make contact and to cause harm. Sure, he may feel remorse for having done such a thing for a time buy domestic violence has a nasty habit of being cyclical; due to the root cause in more than 99% of cases, that the husband is a bastard.
In most cases, that it can simply be inferred from the If I strike someone with an axe, except in the most unusual circumstances, that I intend to cause harm to someone. Likewise, if I strike someone, unless I have completely lost all sense, then it should also be obvious that that I intend to cause harm to someone. Who is going to consent to that?
The concept of consent in tort law is pretty simple. Consent is agreement or permission expressed through affirmative, voluntary words or actions that are mutually understandable to all parties involved, to engage in a specific act at a specific time. Likewise, consent can be withdrawn at any time, as long as it is clearly communicated. Get it? Got it? Good.
H's defence is that W consented to being struck. Let me rephrase that. Even after multiple occasions, even after W has reported multiple incidents to the police, and then finally run away with the children, the defence that H is relying upon, is that W consented to being struck. I think that it is as obvious as the day is long, that this a bald faced lie. I think that W's actions conclusively prove that to be the case and yet the defence that H is relying upon, is that W consented to being struck.
Under normal circumstances if you are guilty of a crime, then if I was a trial lawyer, I would expect you to plead "not guilty" because the onus of proof rests with the prosecution to prove all of the elements of guilt. However, in a situation which involves domestic violence where it is obvious to all and sundry, then while I would expect you to plead "not guilty", where the proof that can be produced is so ready at hand, then pleading "not guilty" looks very silly.
Here is why I would never go and practice law. It's not that I do not want to see justice done. It is not that I do not want to see the world made better. Rather, that someone has to prepare the legal case for people like H. The legal system that we live with is that people are entitled to an adequate defence at law. I have no idea how people when knowing that their client is as guilty as the day is long, as able to square that circle in their minds. Maybe they are not able to? I do not know. Maybe some people's sense of justice is able to compartmentalise the fact that this is a job, and that they still need to do a good job for bad people because it is the right thing to do. I do not think that I have the moral hardware to do that. That sounds to me like paradigm shifting without the clutch and money shotting one's morals. Nevertheless, someone has to do it.
If you are a lawyer, then I respect your profession because in many circumstances you have the job of defending the very guilty, and the sometimes evil, to the best of your ability. Having to deal with the insane, mad, irrational, stupid, obnoxious, and daft as the raw materials of the job is something that I simply could not do; and why I chose numbers instead.
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