The Wigs

The Wigs is the first and only podcast featuring practising barristers talking shop. Featuring Emmanuel Kerkyasharian, Felicity Graham, Stephen Lawrence and hosted by Jim Minns, episode one will be launching very, very soon. Stay tuned!   See omnystudio.com/listener for privacy information.

The Wigs discuss the Pell case, abortion decriminalisation, the legal aid crisis and section 501 of the Migration Act. See omnystudio.com/listener for privacy information.

The Wigs discuss why strip searches have increased twenty fold in the last decade, the proposed Religious Freedom Bill in relation to Israel Folau and the AFP raids on journalists. See omnystudio.com/listener for privacy information.

The Wigs discuss the legal issues presented by pill testing at music festivals, the UK decision of Miller (Boris Johnson's unlawful prorogation of parliament) and lastly, should the age of criminal responsibility be increased from 10 years? See omnystudio.com/listener for privacy information.

The Wigs discuss the proposal for mandatory blood testing of persons charged with assault police and similar offences, the legal issues posed by the explosion in facial recognition technology and the Julian Assange case and whether the indictment threatens free speech and the right to publish. See omnystudio.com/listener for privacy information.

The Wigs discuss the two recent high court decisions BMW Australia Ltd v Brewster/ Westpac Banking Corporation v Lenthall [2019]. A decision with big implications for how class actions are funded. Secondly the decision of NSW v Robinson [2019] in which the high court considered whether it is lawful for police to arrest someone for questioning and when they haven't yet decided to charge them with a criminal offence. Lastly the wigs discuss rap group OneFour and their ongoing battle with the nsw police, can police and the courts stop them making their music? See omnystudio.com/listener for privacy information.

The Wigs discuss bringing in the troops to respond to the bushfires across Australia and speak to military law expert Dr Cameron Moore from the University of New England; the secretive criminal prosecution of Witness J in the Australian Capital Territory Supreme Court and are recent calls to criminalise the swastika in the state of Victoria a good idea and what can we learn about how symbols of hate are dealt with around the world? See omnystudio.com/listener for privacy information.

The Wigs discuss the latest from the monumental High Court decision in Love v Cth (why Aboriginal non-citizens can't be deported). Plus an in depth interview with Sydney Morning Herald court reporter Michaela Whitbourn and the curious story of Alfred Piddington, Australia's shortest serving High Court justice. Why did he never hear a case?  CREDIT NOTE: The Piddington Society, The Australian Dictionary of Biography and Wikipedia for the history of Alfred Piddington. With our thanks. See omnystudio.com/listener for privacy information.

This is the first of a series of special episodes looking at the impact of the Corona Virus on Australia's legal system and society. The Wigs discuss the Covid-19 related changes to the operation of the court system, the impact on prisoner populations and the way federal and state parliaments have responded to the virus.Our special guest is Rose Jackson MLC, a member of the NSW upper house who has a fascinating chat with The Wigs about how parliament is and should be responding to the crisis.  See omnystudio.com/listener for privacy information.

The Wigs continue with our special Covid-19 episodes - This time we're focusing on the restraints on movement and assembly imposed via public health powers in the wake of the coronavirus pandemic.  See omnystudio.com/listener for privacy information.

The wigs chat with employment law expert and Barrister at State Chambers, Anton Duc. This episode was recorded on April 3rd, 2020 via zoom and, as such, the employment law landscape has changed since then. Stay tuned at the end of the episode as Anton provides a post script update.  See omnystudio.com/listener for privacy information.

The Wigs recap some of the major cases highlighting in season 1 of the chart-topping podcast, including Pell v R and Annika Smethurst v AFP, (both discussed in detail). The Wigs discuss the cases from their practical perspectives as practising criminal law barristers. See omnystudio.com/listener for privacy information.

The Wigs are back! Kicking off season 2 with the inside story of the NSW Police attempt to ban the recent Black Lives Matter protest in Sydney. The three Wigs represented the protest organiser in the 24 hours leading up to the event and eventually secured a last minute appeal ruling that allowed a peaceful protest to go ahead. See omnystudio.com/listener for privacy information.

The Wigs discuss the situation involving former Justice of the High Court of Australia, Dyson Heydon. See omnystudio.com/listener for privacy information.

The Wigs discuss the recent US Supreme Court case of Bostock v Clayton County where a US man was fired for "conduct unbecoming a county employee". Why? He joined a gay softball team. He took the county on and ended up transforming US discrimination law. To add some Australian context the Wigs also interview Assoc Professor Wayne Morgan who talks about his decades of legal activism. Lastly, we profile William Ah Ket, a fascinating figure in Australian legal history. See omnystudio.com/listener for privacy information.

The Wigs put prosecutorial fairness under the microscope. First up is a discussion of a new decision of the NSW Supreme Court in Bradley v Senior Constable Chilby, where a defendant in local court proceedings demanded disclosure of details of his accuser's history of violence, drug use and dishonesty in a case where self-defence loomed large. Secondly the wigs discuss a recent decision of the High Court of Australia in Nguyen v The Queen - which decided a long standing controversy in criminal trial law in Australia. Does the prosecution have to put into evidence an interview with an accused person who doesn't make a confession, but rather denies the commission of the offence? The Wigs examine these new and important cases in a wide ranging discussion drawing on their practical experience as Criminal Lawyers. See omnystudio.com/listener for privacy information.

The Wigs sit down with author and fellow barrister Andrew Boe to talk about his new book The Truth Hurts - an unflinching exploration of the fault lines in our criminal justice system by an outsider who found his way in. Stick around for a reading by the author himself at the end of the Wigs' interview with Andrew. See omnystudio.com/listener for privacy information.

In this episode the wigs tackle two topical legal issues. Firstly the controversial failed prosecution of NSW Minister Don Harwin. Secondly the operation of the NSW High Risk Offender scheme, under which people are detained and monitored for being an "unacceptable risk" of further criminal offending.  See omnystudio.com/listener for privacy information.

The Wigs sat down with Geoffrey Robinson QC to talk about international law in the context of a war over Nagorno- Karabakh.    Geoffrey Robertson Q.C. is a human rights barrister, academic, author and broadcaster. He holds dual Australian and British citizenship.  He is a founder and joint head of Doughty Street Chambers in London. He serves as a Master of the Bench at the Middle Temple, a recorder, and visiting professor at Queen Mary University of London.   See omnystudio.com/listener for privacy information.

In this episode the wigs are back into some complex black letter law. First up is an examination of the details of a new bill currently before the NSW state parliament which is proposed to give police sweeping new investigative powers in respect of people with drug supply convictions. A legitimate response to a social problem or another incursion into fundamental human rights? Next up is a discussion of another proposed law that will guide criminal courts as to how to take into account harm to the foetus occasioned during criminal offending. Reasonable recognition of harm or a stalking horse for the right to life lobby? Lastly the wigs discuss a recent federal court decision that examines the complex question of whether the commonwealth can detain proved refugees who have been refused visas on character grounds.  See omnystudio.com/listener for privacy information.

In this Xmas special the wigs, with the aid of a bottle or two of French champagne, bring a close to the legal year with a discussion of three interesting legal controversies. Firstly the wigs discuss the "lawyer x" scandal in Victoria. A tale of what happened when a famous criminal defence barrister turned rogue and began secretly working for the police against her clients. Second, the wigs discuss a recent decision of the NSW court of appeal in HDI Global Specialty SE v Wonkana No. 3 Pty Ltd concerning insurance policies and the pandemic. Very much one for the contract law and statutory interpretation aficionados. Lastly, the wigs discuss a needlessly controversial nsw government policy for the "depenalisation" of drug possession offences. Strap yourselves in and get ready for a somewhat lengthy, slightly rowdy end of year Christmas special.  See omnystudio.com/listener for privacy information.

Wig Emmanuel Kerkyasharian interviews Edward Walker, an expert in medieval law, about the life of a barrister in the 1400s, historical female litigants and the development of the common law.  See omnystudio.com/listener for privacy information.

The Wigs are back together live in the studio for the first time in 2021, kicking off the year with three legal controversies. First up, a look at the phenomenon of de-platforming, where social media companies restrict people's access to their platforms on account of things said in the expression of views and beliefs. Secondly, the wigs analyse a new NSW proposal to criminalise so called "coercive control", extending the criminal law to domestic violence abuse which does not involve physical violence or threats. Lastly, the Wigs examine a controversial new decision of the international criminal court in which the court's pre-trial chamber has ruled it has jurisdiction over alleged offences in the occupied Palestinian territories. And of course, stick around for fun things at the end of the episode.  See omnystudio.com/listener for privacy information.

In this episode Wig Stephen Lawrence sits down with Barrister Douglas McDonald-Norman to talk about a fascinating figure in Indian legal history, William Broome, the British colonial judge who ‘stayed on' in 1947 when the new Indian nation was born. Douglas McDonald-Norman practises from Eight Selborne Chambers in Sydney where he has a diverse practise including in administrative and commercial law. Their wide-ranging discussion canvasses the man, his personal life, his cases, how his story fits with different conceptions of the Indian nation as well as broader political issues such as the 1970's ‘Emergency' and the role of religion in Indian politics. See omnystudio.com/listener for privacy information.

This episode is devoted to a recent damning report delivered to the NSW Parliament by the NSW Law Enforcement Conduct Commission following a complaint by a criminal defence solicitor in regional NSW that he had been targeted, harassed and intimidated by police officers in Strike Force Raptor - when he was simply doing his job, that is representing a client allegedly involved in an outlaw motorcycle gang. Strike Force Raptor began 12 years ago in NSW with the purpose of disrupting the illegal activities of outlaw motorcycle gangs by using intensive targeting campaigns on gang members, their family and friends or anyone associated with them. The investigation by the Law Enforcement Conduct Commission, called Operation Monza, found that the actions of the three Police officers from Strike Force Raptor had amounted to serious misconduct. The Commission held private hearings with witnesses and has prohibited the publication of the names of any of the police officers or the solicitor involved. The Wigs cannot name any parties involved but the following is a discussion of the findings and the recommendations made and what can be done to better protect the rule of law and an independent legal profession from attack. See omnystudio.com/listener for privacy information.

The Wigs LIVE! Recorded at the NSW Public Defenders conference on Sunday 14 March, 2021 before approximately 500 conference delegates. The annual PD's conference is NSW premier criminal law conference and The Wigs were certainly happy to accept the invitation. See omnystudio.com/listener for privacy information.

In this episode, the final for season 2, the wigs tackle the changes the NSW government is proposing to sexual consent laws.  These changes - if passed by parliament - will require participants in sexual acts to seek "active consent" before engaging.  It is a proposal that has divided the legal community and raises profound questions about the role of the criminal law: See omnystudio.com/listener for privacy information.

Kicking off Season 3, The Wigs Felicity Graham, Stephen Lawrence and Emmanuel Kerkyasharian (along with Jim Minns) broadcast live from lockdown with an in-depth look into the NSW public health orders that have hastily been put in place. Issues including the right to silence, the right against self-incrimination, policing in the time of COVID and the rule of law will be interesting to all.   See omnystudio.com/listener for privacy information.

This bonus episode of The Wigs is part of our solo Wig interview series. Felicity Graham sat down with special guest Rawan Arraf of the Australian Centre for International Justice to discuss universal jurisdiction, the crime of apartheid, the International Criminal Court's jurisdiction over alleged offences in the occupied Palestinian Territory, the work that can be done domestically to achieve global justice and more. See omnystudio.com/listener for privacy information.

On this episode, the Wigs discuss the recent High Court decision Commonwealth of Australia v. AJL20 [2021] HCA 21, A narrow win for the Commonwealth against a refugee whose visa was canceled on character grounds, and a case that has potentially big implications for the protection of liberty in this country. Secondly, a world-first in enforcement against big tech - the Wigs delve into the Federal Court of Australia decision, Australian Competition and Consumer Commission v Google LLC (No 2) [2021] FCA 367, in which the consumer protection body, the Australian Competition and Consumer Commission succeeded in showing Google has engaged in misleading or deceptive conduct and made false or misleading representations to consumers about the personal location data the company collects, keeps and uses when using their Android phone and tablet devices. Finally, what has been described as "the most serious series of miscarriages of justice in recent English history" - a scandal which has finally been brought into the light after a long tail of destruction: "for 20 years the Post Office hijacked the English criminal justice system and used it, essentially as part of the Post Office for its own purposes. In the process, it ruined the lives and livelihoods of hundreds of innocent people". See Josephine Hamilton and Others v Post Office Limited [2021] EWCA Crim 577. See omnystudio.com/listener for privacy information.

In this extra content interview, Wig Stephen Lawrence sits down with Alison Battison the founder of Human Rights for All, a unique Australian pro bono law firm having a major impact on Australian migration and human rights law. Human Rights for All specialise in obtaining liberty for detained asylum seekers, refugees and stateless persons. They represented AJL20 (a Syrian man whose legal travails have been the subject of two previous Wigs episodes) in his proceedings before the Federal and High Court. Stephen and Alison discuss the man behind the case and the fascinating and important issues raised by this innovative and strategic (though ultimately, sadly, unsuccessful) piece of litigation. Listeners interested in donating to Human Rights for All should head to their website www.hr4a.com.au.  See omnystudio.com/listener for privacy information.

In this episode, the Wigs are joined by solicitors Peter O'Brien and Stewart O'Connell to discuss the recent High Court decision about the liability of media outlets for things posted by other users in the comments on the media outlets' Facebook pages. Peter and Stewart act for the plaintiff in the defamation proceedings, Dylan Voller. See omnystudio.com/listener for privacy information.

In this extras episode of The Wigs Emmanuel Kerkyasharian has a fascinating discussion with Edward Santow about Human rights, technology and artificial intelligence. The wide-ranging discussion touches on the robodebt saga, responsibility for algorithmic decision making, algorithmic deference & the need for the legal profession to understand more about statistics and computers as we progress into a new technological epoch.   Edward Santow was Human Rights Commissioner at the Australian Human Rights Commission from August 2016 to 28 July 2021. Since September 2021, Ed has been the at the University of Technology, Sydney, as Industry Professor – Responsible Technology.   See omnystudio.com/listener for privacy information.

Celebrating a return to the studio, in this episode The Wigs delve into three diverse topics. First up, the limits of academic freedom as revealed in a recent High Court of Australia decision of Ridd v James Cook University [2021] HCA 32. Should academic freedom be qualified by a requirement to “afford respect and courtesy to others in one's field of competence”? Should academics be censured, or even lose their jobs, for speaking out, being critical of others, and for attacking university administration and decision-making? Secondly, The Wigs discuss the controversial cases of Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, in which the Plaintiffs brought a whole host of legal challenges to the NSW vaccination requirements, and spoiler, lost all of them.  Thirdly, a case about a teenage Aboriginal girl videoed by police whilst being strip searched, and whether her case could be heard by a female Magistrate.  See omnystudio.com/listener for privacy information.

Our final episode for 2021, The Wigs delve into the latest case on Julian Assange's fate, a man who is inching closer to facing prosecution in the United States over his involvement in the Wikileaks publications.  Then on the local stage, a case which finally quashes the controversy over the nature of an appeal against conviction from the Local Court to the District Court in NSW, followed by a look at what's been happening in the highest courtroom of the land - are women justices interrupted more than their male counterparts and who are the interrupting culprits?  This episode was broadcast live on Twitter spaces. Let us know if you'd like to join the Wigs live again in the future - just send us a note on Facebook or on Twitter @wigspodcast. Enjoy the show! See omnystudio.com/listener for privacy information.

This episode of the wigs kicks of with a discussion of the now notorious visa cancellation and removal from Australia of the world number 1 tennis player Novak Djokovic on the basis he was unvaccinated and might encourage anti-vaccination sentiment. Secondly, The Wigs sit down with barrister Phil Boulten SC to have a fascinating discussion about the life and career of the late and great barrister Ian Barker QC.   See omnystudio.com/listener for privacy information.

In this, the last episode of season 3, the wigs kick off with a discussion about an important new prisoner rights case. Bassam Hamzy is a convicted murderer who is classed by prison officials as a dangerous inmate. Regulations made by the state government that interfered with his right to legal representation were recently struck down by the NSW court of appeal. The case turned on statutory interpretation of the prison regulations, an analysis of the power to make certain internal prison rules, and the "principle of legality" which was used by the Court of Appeal to overturn the decision of the Supreme Court judge who had held the Regulations and rules to be valid. Secondly, the Wigs discuss two very recent decisions of the High Court dealing with the question of when is a worker an employee as opposed to a self-employed independent contractor. The decisions overturned earlier authority and place new primacy on the express terms of work contracts, negotiated between generally unequal parties. Lastly, listeners will hear a discussion of a failed prosecution under the new cartel conduct provisions that attempt to stop businesses colluding to distort the market.  See omnystudio.com/listener for privacy information.

Welcome to a special episode of The Wigs. This episode was recorded live at the 2022 reasonable cause conference. The conference provides continuing professional development units for hundreds of criminal lawyers each year. Run by Mark Dennis SC, all proceeds go to Reasonable Cause Incorporated to assist disadvantaged young Cambodians further their education. To see more about this charity go to www.RCcharity.net.au The wigs were invited to talk on the topics of "Policing the Prosecutor, prosecutorial ethics for criminal lawyers'. You can find more information on reasonable cause at https://rccpd.net.au/ See omnystudio.com/listener for privacy information.

The Wigs chat with criminal law academic Jeremy Gans. Jeremy is a Professor at the Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee. His early research focused on fact-finding in sexual assault trials, and criminal investigation, especially the technique of DNA identification. He is the author of a criminal law treatise and a co-author of texts on evidence law and criminal process rights. He has contributed to public debate on criminal justice in a number of forums, including as a regular on Twitter and in blogs on the High Court of Australia and on Victoria's Charter of Human Rights and Responsibilities. See omnystudio.com/listener for privacy information.

In this episode, the Wigs delve into three key legal decisions in the United States concerning access to lawful abortion, starting with the seminal 1973 decision of the United States Supreme Court Roe v Wade, and then the 1991 decision of the Court of planned parenthood v Casey. Finally the recent decision in Dobbs, State Health Officer of the Mississippi Department of Health v. Jackson Women's Health Organization - which overruled Roe v Wade and Casey, overturning half a century of constitutionally protected access to abortion in the United States.See omnystudio.com/listener for privacy information.

This month on The Wigs - a discussion of a brand new provision in the NSW Bail Act 2013, section 22B. This provision came into effect in late June and provides that people who have pleaded guilty or have been found guilty by a court of a crime should be remanded in custody immediately if they "will" ultimately receive a jail term when they are sentenced unless there are special or exceptional circumstances justifying bail continuing. Secondly, a new High Court case has reaffirmed the fundamental structural separation in the Australian Constitution between judicial and executive power. In Alexander v Minister for Home Affairs, the High Court struck down section 36B of the Australian Citizenship Act on the basis that citizenship stripping as a punishment for misconduct could not be done by a minister and could only occur as criminal punishment following a conviction by a court. Wig Stephen Lawrence was one of the barristers who appeared for the applicant and he provides some interesting insights into the course of the litigation. Lastly the Wigs look at a new decision of Justice Hamill in DPP v Peckham where a decision of a magistrate was quashed on the basis that the case proceeded in the absence of the prosecutor and on the basis of no charge or evidence. This amounted to a fundamental breach of procedural fairness and proper process. The case took only three minutes to be heard in the Dubbo Local Court!See omnystudio.com/listener for privacy information.

In this month's episode, the wigs deep dive into two topics. Firstly the political/legal drama that has been dominating political news headlines of late. That is, the revelations that former prime minister Scott Morrison secretly swore himself into multiple ministries during 2020/21.  Secondly, the wigs look at a recent decision of the NSW court of criminal appeal in a case called Stuart, where the court applied the principles around when a plea of guilty and subsequent conviction can be set aside by an appeal court. The interesting facts of the case include the court's finding that a solicitor entered pleas of guilty without taking instructions from the client.See omnystudio.com/listener for privacy information.

This month in a slightly late episode (apologies to all listeners!) - the wigs tackle two fairly massive policy topics and a new decision of the high court.  The wigs discuss the proposal to insert into the Australian constitution a new clause that will provide for a body that will be consulted on legislation that will affect Aboriginal and Torres Strait Islander people.  Secondly, the Albanese government's proposed National Anti-corruption commission is analysed and Lastly, we will hear about a new High Court case of SDCV v Director General of Security 2022 HCA 32.   See omnystudio.com/listener for privacy information.

In the last episode for 2022, The Wigs look at a recent civil law decision of the High Court in the case of Stubbings v Jams 2 Pty Ltd 2022 HCA 6. The case concerned a man who was signed up by so-called 'pure asset-based lenders' to a mortgage agreement he would inevitably default on. As he did not have sufficient income, this led to the inevitable loss of his mortgaged asset. The High court considered whether the equitable doctrine of unconscionability should operate to set aside the transaction. Unconscionability is a rule of law deriving from equity where a court can relieve a person from the otherwise binding legal effect of an arrangement where the conduct and arrangement was so involved so unjust and one-sided, that they were contrary to good conscience and should not be enforced. Secondly, The Wigs undertake a year in review, discussing and updating the various cases and topics covered during a year of episodes. Last up of course is fun things!See omnystudio.com/listener for privacy information.

In the lead-up to the NSW state election, the podcast is rounding out Season 4 by showcasing a series of interviews with the core trio of wigs to discover exactly who they are and what drives them professionally. First off the cab is Wig Stephen Lawrence. Don't forget to like and subscribe and follow us on Facebook https://www.facebook.com/thewigspodcast and Twitter @wigspodcast.See omnystudio.com/listener for privacy information.

While the wigs are on a short break, we continue with our one on one interview series with the barristers themselves. Next up is the one and only Emmanuel Kerkyasharian.See omnystudio.com/listener for privacy information.

While the wigs continue their short break, our one-on-one interview series 'Unwigged' - which is all about the wigs themselves - who they are, what drives them and their advocacy, and more importantly - what led them to live a life dedicated to the pursuit of Justice - rolls on. This week is Felicity Graham.See omnystudio.com/listener for privacy information.

Kathleen Folbigg has spent two decades locked up over the deaths of her four children, in maximum security prisons, largely confined to a cell for her own safety, and regarded as a result of her convictions as one of Australia's most heinous serial killers.  Ms Folbigg has always maintained her innocence. The case could well be one of the gravest miscarriages of justice this country has seen - a mother not only facing the tragedy of losing her four children, but being wrongly punished for their deaths.  Her latest petition for pardon has been signed by scores of prominent scientists and medical professionals, who have concluded that “the scientific and medical evidence … creates a strong presumption that the Folbigg children died of natural causes”. In this episode the Wigs discuss the case with special guest Dr Robert Cavanagh, Ms Folbigg's barrister.See omnystudio.com/listener for privacy information.

Today the wigs look at an important threshold question in the criminal justice system; what is the test or legal requirement for bringing a prosecution.  The issue has been highlighted recently in the ongoing ACT inquiry into the criminal justice system.  P.S Listeners can access Shane Drumgolds witness statement and evidence in full on the ACT inquiry website which is online.  In short, Mr. Drumgold says that section 26 of the Magistrates Court Act creates a test of mere suspicion for police to file a criminal charge and that subsequent to that - the DPP applies a reasonable prospect of conviction test.  He makes no mention in his statement of the reasonable and probable cause test.  The wigs note that an absence of reasonable and probable cause is part of the test for malicious prosecution in the ACT.  See ANDREI VATARESCU v THE COMMONWEALTH OF AUSTRALIA and THE AUSTRALIAN CAPITAL TERRITORY [2012] ACTSC 96 (15 June 2012).  The Wigs view is that section 26 is to be read subject to the common law and that when invoked by a police officer — reasonable and probable cause is required to charge.  Because charging begins the prosecution process.  In any event, it seems baffling that the DPP himself is unaware of the threshold at which a prosecution in the ACT becomes malicious.  See omnystudio.com/listener for privacy information.

In this episode, the wigs examine a controversial situation impacting some of the state's potentially most vulnerable women which requires reform.  It is common in the criminal justice system for women who allege domestic violence against their partner to later withdraw the allegation and in some cases claim the allegations were in fact lies.  Most experts and criminal lawyers are aware that many of these retractions are not a genuine indication of the falsity of the original allegation, but rather can be motivated by fear, love or just a concern to keep a family together and supported.  In some such cases, NSW Police have been charging such women with making a false accusation, relying alone on the woman's retraction.  Many such women have pleaded guilty and in some cases been jailed.  The Wigs are concerned that this practice has led to miscarriages of justice, with genuine victims of domestic violence being re-victimised, discredited and jailed.  In this episode the wigs examine the issue, discuss case studies and propose a way to ensure any such prosecutions are properly considered and only launched when the original allegation can be proved beyond a reasonable doubt to in fact be false, by evidence other than the retraction itself.See omnystudio.com/listener for privacy information.

This week on The Wigs we bring you a special episode, the inaugural speech of the Honourable Stephen Lawrence MLC, elected at the recent NSW State election to the upper house, or Legislative Council. Stephen was the first of all newly elected Upper House members to make an inaugural speech. Until such time as they make their first speech, new members cannot speak on any business of the house. Stephen has been using his freedom to talk in the house since regularly, - on a range of matters from Kathleen Folbigg, to Israel and Palestine, the Aboriginal and Torres Strait Islander Voice to Parliament, the ACT inquiry into the criminal justice system, crime in western NSW and a range of other topical NSW political issues. The Legislative Council was packed for the occasion of Stephen's inaugural speech with visitors from far and wide - his very proud parents, siblings and their families, his partner and son as well as many other friends from Dubbo and the far west, friends Matthew Batsiua, a former member of the Nauru Parliament and former Foreign Affairs and Justice Minister for Nauru, and Luci Dabwido, the widow of Sprent Dabwido, a former President of Nauru. See omnystudio.com/listener for privacy information.

This week's episode is on BA v The King [2023] HCA 14, a High Court judgement on whether a person who breaks into a house and assaults their domestic partner is guilty of the offence of break and enter under NSW law, in circumstances where they had moved out, but are still on the lease.  In the context of the case, the Wigs have a broader discussion about domestic violence offences.See omnystudio.com/listener for privacy information.

In this episode the Wigs look at a fairly recent case of Jackmain (a pseudonym) v R [2020] NSWCCA 150 which raises the issue of what happens when a sexual assault complainant has a history of making false sexual assault claims. Currently in NSW such false allegations can't be used by an accused to defend themselves at trial. For decades the law has maintained that a jury simply cannot be told the complainant has previously made similar false allegations because of a provision introduced to protect sexual assault complainants from humiliating and improper cross examination about their sexual history.  In Jackmain, the accused faced a number of sexual assault charges which he said were fabricated by the complainant against him.  The NSW Court of Criminal Appeal confirmed that the law in NSW prevented him from using the complainant's tendency to fabricate sexual assault allegations in his defence but did hold that a trial court in such a case has a power to stay the proceedings as an abuse of process.  The Wigs discuss the practical, policy and human rights implications of this law and examine the case for legislative reform.See omnystudio.com/listener for privacy information.

In this episode, the wigs discuss a new decision of the district court of NSW Reeves v State of NSW 2023 NSWDC 196.  The Plaintiff, Mr. Reeves, sued the state of NSW for malicious prosecution and false imprisonment following the dismissal of a stalking charge against him.  While he failed to prove the prosecution was malicious or that his arrest had been unlawful, he did succeed with a relatively novel claim of false imprisonment.  Judge Abadee found that the actions of the police in transferring him into a police interview room, in circumstances where he had expressly declined to be interviewed, led to false imprisonment for the period of the unwanted interview.  The wigs draw on their experience in litigating issues of unlawful arrest, false imprisonment, and unwanted police interviews to analyse the case and related issues.     See omnystudio.com/listener for privacy information.

In this episode, the Wigs examine quite a topical legal issue.  What are the laws around what can be done with documents that are produced to parties to litigation under court orders such as subpoenas? In short - the law in some places provides that such documents are confidential unless they are admitted as evidence in the case  and that parties or others who obtain the documents commit contempt of court if they leak them with knowledge of their origins.  The Wigs discuss the case of Harriet Harman, an activist lawyer in the UK, and later a member of Parliament, who was found guilty of contempt of court for providing documents to a journalist, as well as some Australian cases on point.See omnystudio.com/listener for privacy information.

This episode consists of a special interview with the Wigs new India Correspondent! Siddharth Narrain is an Indian lawyer, journalist and academic and lecturer in law at the Adelaide University. He and Stephen sat down for a chat about Sid's career, the Indian legal system, cases Sid has been involved in, the Indian media scene, human rights in India including freedom of religion and much much more. The episode was recorded last year but we think it has stood the test of time.See omnystudio.com/listener for privacy information.

In this week's episode the wigs discuss possibly the most momentous and controversial criminal case in American history, the indictment of Donald Trump by special counsel Jack Smith for his efforts to overturn the 2020 US election. The Wigs discuss the three offence creating provisions, some of the facts underlying the allegations and the overall merit in prosecuting a former president in what is and will surely continue to be, a hugely divisive prosecution in a hugely divided country. Is this divisivenessa reason to not prosecute, or indeed a further reason to prosecute? Will this indictment protect American democracy or take it further into the abyss. Interestingly just days after this episode Trump was indicted again, this time by a DA in Georgia along with lawyer Rudy Giuliani and 17 others on a fourth series of charges, again relating to attempts to subvert the 2020 election in Georgia. Now on with the show.See omnystudio.com/listener for privacy information.

In this episode, The Wigs discuss a massively controversial recent decision of the US Supreme Court in which the so-called conservative "super majority" struck down as unlawful affirmative action on the basis of race in university admissions. The case is known as Students for Fair Admissions v Harvard and involved two separate cases one involving Harvard, the other the University of North Carolina. The wigs discuss the 14th amendment, the impact of affirmative action, the long-standing legal test for affirmative action as an accepted derogation from the 14th amendment known as "strict scrutiny" and why the majority said the test wasn't met and the practices unlawful. The Plaintiff 'Students for Fair Admission' or SFFA  brought the case on behalf of a group of Asian Americans denied entry to university in the context of affirmative action policies they alleged had worked against them. SFFA describes itself on its website as, "a nonprofit membership group of more than 20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional. Our mission is to support and participate in litigation that will restore the original principles of our nation's civil rights movement: A student's race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university".See omnystudio.com/listener for privacy information.

This week the Wigs return to the topic of the prosecution's duty of disclosure in criminal matters. Felicity recently presented at a criminal lawyers conference on the topic and took the opportunity to survey the hundreds of attendees on their experience of disclosure in criminal matters.  The results were disturbing and are further evidence of the systemic problem in the state of NSW when it comes to the state complying with its legal obligations of disclosure, being the basic obligation of the police and prosecution to disclose all evidence that might possibly assist the accused in conducting their defence.See omnystudio.com/listener for privacy information.

Welcome to a special "recorded live" episode of the wigs!  The Wigs were invited to attend and live record an episode at the Australian Criminal Law Congress 2023 in Byron Bay. Emmanuel and Jim were unfortunately unavailable, so Felicity and Stephen teamed up with guest wig NSW Public Defender Paul Coady to live record the episode before an audience of lawyers from across Australia. The topic for the episode is "Reform of public criminal prosecutions in Australia, the Sofronoff Inquiry and its aftermath". Felicity Stephen and Paul discuss the key issues and findings of the inquiry and work through what its implications might be. The Conference was hosted by Hugo Law and the keynote speaker was Justice Edelman of the High Court of Australia. A big thank you to Hugo Law and particularly Karen Espinar for reaching out with the invitation. The conference was a big success and The Wigs encourage listeners to consider the conference in future years. A big thanks also to Paul Coady for being a guest wig. A bit about Paul. He began his legal career as a commercial solicitor at Clayton Utz, but turned toward criminal law after an internship with the Innocence Project in New Orleans. He has been at the NSW Bar since 2008 and was appointed a public defender in 2018. See omnystudio.com/listener for privacy information.

This week the wigs examine the federal government's proposed Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill.  The draft Bill released by the Albanese government proposes a method to combat the phenomenon of Misinformation and Disinformation, said to be a growing and pressing problem accompanying the explosion in social media and the internet more broadly. The draft Bill has sparked a national conversation around free speech and the extent of the harms posed by false information.  Human Rights Commissioner Lorraine Finlay posed the issue this way in an op-ed in The Australian on Thursday 24 August 2023. "Despite being labelled the “word of the decade” in 2021, fake news is not a modern phenomenon. Misinformation has been spread for political gain since Octavian used fake news to discredit Mark Antony in ancient Rome. What is different today is the way modern technology makes it easier to spread fake news around the world but harder to distinguish fact from fiction. Misinformation and disinformation can have devastating effects on human rights, social cohesion and democratic processes. Australia needs to address these risks. But this needs to be balanced with ensuring we don't unduly affect freedom of expression".            See omnystudio.com/listener for privacy information.

It is sometimes said in the law that nothing generates hard work and legal ingenuity more than a costs application.  This week the wigs examine a recent decision that was keenly awaited by the criminal law community in NSW. Rodden v R 2023 a decision of the nsw court of criminal appeal. Mr. Rodden was acquitted of murder and his lawyers sought a certificate under the costs in criminal cases act that would have allowed legal aid nsw, who funded his defence, to recover substantial costs incurred in the trial. The first instance judge refused the application, holding that the Act only allowed a certificate where the individual accused had personally incurred costs. This was contrary to the long standing understanding and functioning of the act and in tension with high court authority that states the legally aided status of an accused is generally disregarded in costs matters. The decision was appealed and the decision set aside with the court holding it was no bar to an application being granted that an applicant had not personally incurred the costs. As said, the judgment was keenly awaited. Legal Aid had at stake its institutional interest in recovering such costs certificates and many lawyers had at stake a direct financial interest, because legally aided lawyers recieve a significant uplift in fees in legally aided matters when they secure such a certificate. Unsurprisingly the case was a well argued matter and the judgment is an interesting journey through appellate jurisdiction in NSW and the policy issues at play in costs in criminal proceedings. Now, on with the show!See omnystudio.com/listener for privacy information.

This week the panel look at a truly unusual and interesting decision from Justice Wigney of the Federal Court which involved a serving federal judge being ordered to pay damages for wrongfully imprisoning a man he jailed for contempt of court.  Stradford (a pseudonym) v Judge Vasta 2023 FCA 1020 has already had massive ramifications.  Some judges have reportedly refused to sit since it was handed down, calls for a standing federal judicial commission to investigate judicial misconduct have been renewed and the decision has been appealed by multiple parties setting the stage for a final determination of the limits of judicial immunity at common law.  The judgment of Justice Wigney delved into the fascinating question of when a judge can be sued for conduct on the bench and involved the surveying of hundreds of years of case law on point.   See omnystudio.com/listener for privacy information.

This week Stephen sits down for a long-form chat with Bri Lee, author of the best selling memoir Eggshell Skull which details Bri's work as an associate in the Queensland District Court and her experience as a complainant survivor in the criminal justice system.See omnystudio.com/listener for privacy information.

In this episode the wigs discuss Vanderstock and Victoria a very fiscally important recent decision of the High Court of Australia. The constitution reserves to the federal government the power to levy excises, essentially taxes on goods. The issue in Vanderstock was whether the Victorian government's electric vehicle levy, charged to owners per km of use was in fact an excise and therefore constitutionally invalid. Victoria said no, the Cth and Vanderstock said yes. In finding the levy invalid the majority departed from decades of case law and potentially fundamentally altered the fiscal balance across the federation. See omnystudio.com/listener for privacy information.

This week we are delighted to have as a guest of the Wigs, David Buchanan SC. David is a quiet and unassuming legend of the criminal law in NSW.  Admitted to legal practice in 1975 and then called to the Bar in 1977, in the decades between then and now he has not wearied nor lost his zeal and professional dedication. He was appointed Senior Counsel in 1997 and has almost retired after a long career of practising as both a prosecutor and defence counsel in NSW. He has been a champion of social justice, particularly in his work for, and in, the gay and lesbian community and in response to the HIV/AIDS epidemic both in Australia and overseas. In this interview with Wig Felicity Graham, David shares his personal insights, reflects on his journey through the law, the influences on him, some of his key cases and his tips for surviving and thriving as a criminal law practitioner today. Enjoy the show!See omnystudio.com/listener for privacy information.

Welcome back to the Wigs for a brand new year! We have been on an extended summer break and hope you have enjoyed a great break too. In this episode,recorded at the end of last year, The Wigs examine a recent decision of NSW District Court Judge Newlinds in R v Martinez. The judgment has already been the subject of much media attention and concerns a successful costs application made by Martinez following their acquittal on four charges of sexual assault. The judge, in awarding a costs certificate to the accused, made scathing criticisms of the Director of Public Prosecutions and raised concerns that in sexual offence matters the DPP is applying a surreptitious and improper policy under which sexual offences are prosecuted without proper regard to the strength of the Crown case. The DPP responded furiously to the judgment publicly stating a Judicial Commission complaint would be made against Judge Newlinds. The case raises unusual factual matters and interesting legal and policy matters. Now,See omnystudio.com/listener for privacy information.

In this Wigs Extra Episode we present something a little unusual: a speech that Wig Emmanuel Kerkyasharian gave to the Legal Studies Association.  Asked to speak about basic legal concepts in the context of the Legal Studies Syllabus, Emmanuel couldn't resist the temptation to go philosophical, and presented a speech about what law is, and how it can be conceptualised as a meme.  Many thanks to the LSA for sharing this recording with us and allowing us to present it to you.  See omnystudio.com/listener for privacy information.

In this episode recorded on 19 December 2023, the wigs analyse the decision of the High Court in NZYQ v Minister for Immigration 2023 HCA 37, one of the most important public law decisions in recent decades which was handed down on 28 November 2023. In the decision, the court unanimously overturned an earlier decision in Al-Kateb. It held that long-standing constitutional principles forbid indefinite detention of non-citizens who cannot be removed from Australia. The judgment has been massively controversial and the federal parliament legislated in December last year in response to it to create a system of monitoring and regulation applying to those persons affected directly by the decision. We do apologise for the delay in releasing the episode but we hope it's still an interesting and useful discussion of one of the most important principles in Australian constitutional law, that detention is prima facie punitive and can generally only be imposed by a court following an adjudication of guilt.See omnystudio.com/listener for privacy information.

In this episode, the wigs tackle a bill that passed the federal parliament recently and very substantially amended the part of the Criminal Code 1995 that creates crimes related to engaging in bribery in foreign countries. The Crimes Legislation Amendment (Combatting Foreign Bribery) Bill 2023 passed the Senate on 29 February 2024. These laws implement Australia's international commitments to combat foreign bribery and impose substantial penalties on individuals and companies who engage in bribery while engaging in business overseas. The Wigs analyse the policy rationales for the laws, the elements, and some of the defences. The discussion also touches on some recent Australian prosecutions for this conduct.See omnystudio.com/listener for privacy information.

In March this year, the Wigs were back to record a live show at the Reasonable Cause Continuing Professional Development Conference.  The topic was Ethics for Defence Lawyers and the panel discussion you are about to hear examined the basis of ethical obligations, the nature of the fiduciary obligations lawyers have, common ethical breaches, some of the reasons why they occur, and how lawyers should respond to complaints. Reasonable Cause CPD gives 100% of its net profit to Reasonable Cause Inc., a charity that focuses on assisting disadvantaged young Cambodians to advance their education.  Friend of The Wigs Mark Dennis SC runs Reasonable Cause and The Wigs are always happy to assist a very reasonable cause by donating their time. More info on reasonable cause at rccpd.net.au.See omnystudio.com/listener for privacy information.

In this episode the wigs discuss a new police powers decision, Julie Bugmy v NSW Director of Public Prosecutions 2024 NSWCA 70, a recent decision of the NSW Court of Appeal. It concerns the law applicable when police arrest a person believed to have breached a condition of a grant of bail. Wig Stephen Lawrence actually appeared in the matter, instructed by his old employer the Aboriginal Legal Service NSW/ACT way back when it began in 2022 in the local court in Broken Hill before Magistrate Trad and the episode begins with a re-enactment of Stephen's short cross-examination of the main witness. The issues focused on in the cross-examination proved to be decisive in the appeal and concerned the legal requirements on police to consider certain circumstances and alternatives to arrest before arresting a person for breach of bail. See omnystudio.com/listener for privacy information.

In this episode the wigs analyse the latest judgment in the federal prosecution of donald trump, in which the trial judge soundly rejected his application to terminate the prosecution on the basis that the biden administration is targeting him in a selective and vindictive manner. Judge Chutkan in rejecting the application also refused the former president discovery of documents in support of his application on the basis it was not supported by sufficiently cogent evidence. The Wigs in analysing the case compare the basis on which a political prosecution can be terminated in the USA with Australia and discuss cases here that have featured somewhat similar issues. See omnystudio.com/listener for privacy information.

It's not every day of the week that a law is struck down as unconstitutional but that's exactly what happened in the case of the Knitting Nanas against the State of NSW. Two Knitting Nanas Helen Kvelde and Dominique Jacobs with the help of the Environmental Defenders Office launched a constitutional challenge to s 214A of the Crimes Act 1900 that criminalised certain conduct such as remaining  “near” any part of a “major facility” (such as Town Hall or Martin Place Station) if that conduct “causes persons attempting to use the major facility to be redirected”, or if that conduct caused “partial closure” of the major facility, on the basis it impermissibly burdens the implied freedom of political communication. Reacting to the win, Knitting Nana Helen Kvelde said “We are happy the court has given some acknowledgement to the democratic right to protest. But these laws to me feel like a distraction. As if both Labor and the Liberal Party are trying to get the population angry with protesters instead of angry against politicians for failing to protect us from climate emergency. I'm not sure what we can do next, but it doesn't feel right to just let this go. We need to fight for our democratic right to protest peacefully. I wish people would understand that ultimately these laws could affect anyone – anyone the government of the day does not like.”See omnystudio.com/listener for privacy information.

In this episode Stephen sits down for a wide ranging chat with Barrister Ghassan Kassisieh. The discussion is lengthy and covers lgbt rights, international politics, refugees, the politicisation of gay rights in the Israeli / Palestinian conflict and comparative law, among other things. Ghassan is a Barrister at 12 Wentworth Selbourne chambers in Sydney after being called to the Bar in September 2024. He has a public and commercial law practice. Ghassan was previously Legal Director at Equality Australia where his legal policy advocacy contributed to over 16 LGBTIQ+ legislative reforms, including Australia's first scheme regulating medical procedures performed on intersex people without capacity to consent. Ghassan also has over 13 years' experience working as a solicitor in commercial litigation and regulatory matters at Gilbert + Tobin in Sydney and Freshfields in London. We hope you enjoy the chat!See omnystudio.com/listener for privacy information.

As a finale for 2024, the Wigs took listener questions and answered them in a speedround. This is Part 1 of the speed round covering a range of topics from the right todisconnect as an employee, to the Disability Royal Commission recommendations,the age of criminal responsibility and the use of good character evidence in sentenceproceedings. If you have a question for the Wigs, feel free to shout out to us onFacebook. And don't forget to rate, review and subscribe to the podcast. See omnystudio.com/listener for privacy information.

Our final episode for 2024! This is part 2 of our speed round - answering your questions! If you have a question for the Wigs, feel free to shout out to us onFacebook. And don’t forget to rate, review and subscribe to the podcast. Have a happy and safe holiday break and new year to all our lovely, loyal listeners. We love you! Jim, Flic, Manny and Steve.See omnystudio.com/listener for privacy information.

In this episode - Wigs Felicity and Emmanuel speak with journalist Paul Farrell about proactive policing particularly stop and search practices within the NSW Police Force. Paul is an investigative reporter who has worked at the ABC, the Guardian and Buzzfeed News, breaking major national and international stories. He led the Guardian's Nauru files reporting team, which published thousands of pages of leaked documents from Australia's offshore detention regime and won a number of journalism awards.See omnystudio.com/listener for privacy information.

In this episode the Wigs discuss a trio of recent high court decisions that deal with a pretty new question, when can a civil claim for sexual abuse said to have occured many decades ago be fairly tried, even when the alleged assailant has died and much related evidence lost. This question has emerged following the abolition by state parliaments of statutes of limitation, that previously prevented such "historical" claims from being advanced. The discussion touches on a number of fundamental legal questions including what is a fair trial, what is abuse of process and how and when can the parliament legislate to effectively alter these principles. The cases discussed are Willmot v The State of Queensland [2024] HCA 42, RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43 and GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore[2023] HCA 32. Now,See omnystudio.com/listener for privacy information.