Friday, December 13, 2019

The case of Samantha Chong fits a pattern of Bar Council cover-up, and raises fresh questions for the newly appointed JC George Varughese

by Ganesh Sahathevan

Newly appointed Judicial Commissioner George Varugehse called for urgent reform judiciary appointment processes. While himself Bar Council President he oversaw that mysterious JV with the College Of Law Sydney,and refused to provide answers to repeated queries. The case of Samantha Chong arose when he was immediate past president of the Bar Council.,and when his successor Fareed Gafoor maintained the culture of silence.


The story of Samantha Chong arose six months ago and ought to have triggered an immediate internal investigation by the Bar Council Malaysia, but that does not appear to have happened.

That silence appears to have been exemplified by this email from the current Bar Council President, Fareed Gafoor, to his CEO,on the matter of the Bar Council's JV with Australia's College of Law:

Dear Rajen,
We can’t remain silent on this.
Abdul Fareed Bin Abdul Gafoor
The immediate past president of the Bar Council. George Varughese, was recently appointed a judicial commissioner. It was under Varugehese's watch that the College Of Law JV was executed, ended,and now it seems, covered-up.
As immediate past president of Bar Council when the events complained of by Ms Chong occurred  Varugehse has a duty to explain why her complaint was not acted on.He also has a duty to explain the matter of the College Of Law.
To not do so is to cast doubt on his appointment as a Judicial Commissioner.
END











What happened to my sexual assault case, asks former lawyer

FMT Reporters
 -



Lawyer Samantha Chong wants an update on the investigations into the police report she lodged against a fellow lawyer.

PETALING JAYA: Former lawyer Samantha Chong is asking why it was taking so long to get an update on a police report of a sexual assault six months ago.
In a series of tweets to Inspector-General of Police Abdul Hamid Bador and Attorney-General Tommy Thomas, she said the investigating officers had chosen to ignore her, most of the time.
“Updates are hard to get. Do you still need another six months?
“Is this how you treat a sexual assault survivor? And then pretend to be surprised why most victims remain silent?
“Why the delay?” she asked in her tweets.
Chong, 34, had alleged that she was groped twice during a Criminal Lawyers’ annual dinner gathering at a hotel here in June.



Two of Samantha Chong’s tweets.

She then lodged a police report at the Sea Park police station against a fellow lawyer over alleged sexual assault.
She claimed that her alleged assailant, who was said to be drunk, groped her at least twice during the dinner.
Samantha who is in her early 30s, claimed she told the lawyer to stay away from her but he ignored her warnings.
She said the lawyer then became aggressive, used vulgar words against her and threatened her.
In her tweets today, Chong claimed the suspect is now happily carrying on with his life while “nightmares have been a loyal friend to me”.
“I’m tired of trying so hard to walk out from the shadows while you kept me in the dark,” she said, apparently referring to the police, adding that enough is enough.
When contacted, Petaling Jaya district police chief Mohd Zani Che Din said they would be getting in touch with Chong.
“We will respond only to the complainant,” he told FMT.
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Boris Johnson reelected with record numbers despite Supreme Court UK deciding unanimously that Boris advise to the Queen was "unlawful": Can a Supreme Court that has lost the confidence of the people continue to exist? A lesson for judges everywhere who choose to play politics.

by Ganesh Sahathevan

Charles, the Prince of Wales accompanied by Lady Hale, the President of the Supreme Court, 
visits the Supreme Court of the United Kingdom in Parliament Square to commemorate its 10th anniversary, i
n London, Feb. 5, 2019.Charles, the Prince of Wales accompanied by Lady Hale, the President of the Supreme Court, 
visits the Supreme Court of the United Kingdom in Parliament Square to commemorate its 10th anniversary, in London, F
eb. 5, 2019.Victoria Jones/Pool via Reuters
On 24 September 2019 the BBC reported:
Boris Johnson's decision to suspend Parliament for five weeks was unlawful, the Supreme Court has ruled.
Judges said it was wrong to stop MPs carrying out duties in the run-up to the Brexit deadline on 31 October.
The PM, who has faced calls to resign, said he "profoundly disagreed" with the ruling but would "respect" it.

 A No 10 source said the Supreme Court had "made a serious mistake in extending its reach to these political matters", and had "made it clear that its reasons [were] connected to the Parliamentary disputes over, and timetable for" Brexit.

Yesterday, 13 December 2019 the BBC reported:
Boris Johnson has promised to deliver Brexit and repay the trust of voters after he led the Conservatives to an "historic" general election win.
The PM, who has met the Queen to ask to form a new government, has a majority of 80 in the House of Commons - the party's largest since 1987.
Clearly, the majority of voters disregarded the Supreme Court's unanimous ruling. Can the Supreme Court as presently constituted continue to exist, given the loss of confidence in its rulings?
END 

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Wednesday, December 11, 2019

Model Defamation Laws: Can the courts be trusted to properly interpret "proper material" with regards the defence of "honest opinion" :Rewriting of the decision in Carlovers, Bond v Barry suggests that journalists, writers and whistleblowers should not be hopeful

by Ganesh Sahathevan

The following is an extract from  the proposed Model Defamation Amendment Provisions 2020:

[26] Section 31 Defences of honest opinion


Omit section 31(5). Insert instead— (5) For the purposes of this section, an opinion is based on proper material if—


(a) the material on which it is based is—


(i) set out in specific or general terms in the published matter, or


(ii) notorious, or


(iii) accessible from a reference, link or other access point included in the matter (for example, a hyperlink on a webpage), or


(iv) otherwise apparent from the context in which the matter is published, and

(b) the material—

(i) is substantially true, or

(ii) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or


(iii) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.


Those of us who regularly post material on blogs and social media are likely to be concerned by how the term  proper material is going to be interpreted even when the material is  accessible from a reference, link or other access point included in the matter (for example, a hyperlink on a webpage).
The primary reason is simple: as even the Chief Justice of NSW Tom Bathurst and his NSW LPAB have demonstrated recently(see stories below), judicial officers are not very good at reading and determining information contained on websites, which modern writers tend to rely on heavily.
These are people used to getting their information from Fairfax Media and the like, anything else, no matter how authoritative, is to be distrusted.

Many of these references are likely to be to links overseas in countries to which judicial officers here are not likely to have been exposed to, and likely to misinterpret. The recent case reported below where judicial officers felt comfortable re-writing the facts of the Supreme Court decisions in the Carlovers v Sahathevan decisions, based in part on their interpretation of what they had read on the Net, suggests that the proposed amendments need to be further clarified to as to ensure that judicial officers are less likely to make factual errors that can lead to errors of judgment.


END



SEE ALSO

Can a judiciary that accepts as evidence of defamatory publication conspiracy theories published on the Net be trusted with Christian Porter's proposed new laws to regulate social media? Recent history shows that even the most senior judges struggle to cope with social media and electronic publication ,despite its almost 30 year history 

by Ganesh Sahathevan


Troy Grant MP
The AG NSW Mark Speakman is a good example of a politician 
who has used the office of attorney general to suppress investigation
 and reporting on matters that might embarrass his department, 
its officers, and he.  Speakman is expected to introduce proposals 
for the reform of the laws of defamation. 



The ABC and others have reported:

Social media companies should face the same defamation laws as traditional media outlets, Commonwealth Attorney-General Christian Porter has said.

"The playing field between digital platforms and mainstream media is completely uneven," he told the National Press Club in Canberra.

"That is something that needs to be dealt with as urgently as possible as a matter of reform."

Defamation laws allow people and some organisations to sue over comments that damage their reputations.

Mr Porter said any changes to the law would need to "sensibly" take into account the huge volume of material published online.

"Because the volume that goes on Twitter and Facebook is much larger from the volume from a standard newspaper.

"[But] online platforms, so far as reasonably possible, should be held to essentially the same standards as other publishers."


The issue that ought to concern anyone who publishes anything on the Net is this: how will Australia's judicial officers especially judges cope with the relatively complex area of on-line publishing, given what seems to be an inability to comprehend the facts of their own decisions in defamation matters that involve email, the Net and other means of electronic publication? 
As this writer has reported recently from his own experience,there has  been a recent erosion of existing protections, provided almost 20 years ago by the Supreme Court NSW to on-line and mailing list publishers. Worse, there has been tendency to believe whatever is read on the Net, and conclude from it, without trial, that there has been defamatory publication.  See story below and story at link 
NSW AG Mark Speakman and his LPAB's defence of Malaysian businessman Vincent Tan remains unexplained despite Tan's colourful history of interfering with Malaysia's judicial system
END 

Tuesday, June 11, 2019


Protection provided journalists,whistle blowers and sources by Carlovers v Sahathevan ,Bond v Barry undermined by NSW judicial body overseen by Chief Justice NSW, and AG Speakman

by Ganesh Sahathevan

In October 2001 the Supreme Court NSW handed down its decision in Carlovers Carwash Ltd v Sahathevan . The decision provided this writer and other journalists significant protection, and was later applied in Bond v Barry, where Paul Barry (better know now as host of MediaWatch)  relied on  the Carlover's decision to successfully defend himself against a charge of defamation by the late Alan Bond.

Quite apart from affirming the statutory safe harbor provisions protecting journalists found in for example the Fair Trading Act NSW, the cases were important for the defining the noun " journalist" in very broad terms.That broad definition is especially relevant today given the ability of researchers, investigators and writers to self-publish via their own blogs and social media such as Twitter and Facebook. Bond v Barry continues to be quoted to this day (and Sahathevan concedes he will never be as famous as Barry).

There has however been a recent decision of a quasi-legal body that seems to suggest that the protection provided by those cases and the decisions that follow them is being restricted, if not discarded by the legal establishment, especially in NSW.

In a recent decision finding this writer not fit and proper for admission to practice law in NSW the Legal Profession Admission Board (LPAB), which is overseen by the Chief Justice of NSW Thomas Bathurst,  the LPAB (which includes three sitting judges,) determined that the Carlovers decision  did not concern the work of a journalist but rather a Carlovers  employee who after being sacked by Carlovers, harassed, threatened and intimidated the company and its directors.

In doing so the LPAB is suggesting that the  Carlovers decision was incorrectly decided, or that the NSW Supreme Court's views on the rights of journalists to report, and of press freedom generally, have become more restrictive.

The Carlovers decision attracted much media attention locally and in this region and it has relevance especially today given the recent raids by the Australian Federal Police In his story on that matter published in the SMH on 14 October 2000 the last Ben Hills reported:


Mr Sahathevan's counsel, Ms Judith Gibson (now Judge Judith Gibsion) , argued that it was an important press freedom case, because if injunctions could be used in this way it would ``place every whistle-blower and every source at risk''. She said her client had claimed that Carlovers had made false and misleading statements to the Stock Exchange.

The LPAB put its findings with regards Carlovers in the context of what it claimed was evidence of this writer's history of publishing material that was false or otherwise lacking any evidence and were in fact part of this writer's criminal enterprise (see story below published in The Australian on 17 January 2019).


So certain is the LPAB of its findings that it has included in its findings a determination that this writer has shown no  remorse for his work as a journalist; it has made specific reference to the story this writer investigated and wrote for publication in  The Sun newspaper in Malaysia in 1996, which earned him the  sacking from that paper  which in turn led to a number of related defamation matters in Malaysia and Australia, including the Carlovers matter.


In Carlovers submissions were made by Carlovers and its directors about this writer's sacking from The Sun,and the Malaysian matters which included an AUD 7 Million claim for damages.The directors included the Malaysian  businessman Vincent Tan Chee Yioun, who owned The Sun,and still controls it via his Berjaya Group of companies. The LPAB has found that these submissions were "irrelevant".

Tan's role in a number of questionable high profile defamation and corporate matters in Malaysia were well known, and the subject of adverse media reports worldwide, even in 2000. In 2006 a Malaysian Royal Commission which investigated corruption of the judiciary found that there was prima facie evidence that Tan and two former chief justices of Malaysia had committed offences under Malaysia's Sedition Act, Official Secrets Act, Penal Code and the Legal Profession Act. Early this year the Malaysian Government announced that there will be a second RCI into judicial corruption; the events of the past continue to have an impact even today. 

The LPAB's findings given the issues concerning Vincent Tan described above suggests  that the  current NSW Supreme Court will not tolerate investigation by journalists regardless of how serious the matter.It does suggest a degree of antagonism towards journalists that is so great that the Court would be happy to re-write its past decisions,no matter how well established  those decisions might be. In doing so the Court 's seem prepared to re-interpret the not merely the opinion but even the facts of past decisions.


Meanwhile, this writer continues to investigate and write about the issues and facts he discovered in 1996 which got him sacked, as well as other more recent events such as the 1MDB affair, Australia's submarines, and the NSW legal establishment's College Of Law.

END





END 
Reference

Bizarre blog claims used to deny man right to practise law




The body overseen by Chief Justice Tom Bathurst responsible for deciding who can practise law in NSW relied on a wildly defamatory Malaysian blog depicting ABC journalists, former British prime minister Tony Blair, financier George Soros and others as part of a global conspiracy when deciding to deny a would-be solicitor a certificate to practise.

Chief Justice Bathurst and Legal Practitioner Admission Board executive officer Louise Pritchard declined to answer The Australian’s questions about how the article came into the board’s hands and why its members felt the conspiracy-laden material could be relied upon as part of a decision to deny Sydney man Ganesh Sahathevan admission as a lawyer. Nor would either say which of the 10 members of the LPAB, three of whom are serving NSW Supreme Court judges, was on the deciding panel.

Ms Pritchard has left her role at the LPAB since The Australian began making inquiries in September. The article, published in December 2017 on website The Third Force, accuses Mr Sahathevan of engaging in a conspiracy to attack then Malaysian prime minister Najib Razak.

READ NEXT



Mahathir Mohamad, who returned as prime minister after toppling Mr Najib in elections held last May, is also smeared as a participant in the globe-spanning conspiracy.

Mr Najib was under pressure at the time over the country’s sovereign wealth fund, 1MDB, which the US Department of Justice says has been looted of billions of dollars that was spent on property, art, jewels and the Leonardo DiCaprio film, The Wolf of Wall Street.

Malaysian authorities have charged Mr Najib with dozens of corruption offences that could attract decades in jail over his role in the 1MDB scandal, which allegedly included the flow of about $US1 billion through his personal bank account.

The article’s author, Malaysian political operative and Najib loyalist Raggie Jessy, also accused Rewcastle-Brown, Stein and Besser of receiving money, totalling millions of dollars, to participate in a Four Corners program exposing the 1MDB scandal that aired on the ABC in March 2016.

There is no suggestion any of Mr Jessy’s bizarre allegations are true. However, the LPAB cited the piece when denying Mr Sahathevan admission as a lawyer in an undated and unsigned set of reasons sent to him on August 3 last year.

It used the article as evidence in a passage dealing with legal conflicts between Mr Sahathevan, who has largely worked in the past as a journalist, his former employer, Malaysia’s Sun Media Group, and the company’s owner, tycoon Vincent Tan.

In that context, the board said the Third Force article reported “that Mr Sahathevan was investigated for blackmail, extortion, bribery and defamation”. While the article claims that blackmail, extortion, bribery and defamation “are but some of the transgressions many from around the world attribute” to Mr Sahathevan, The Australian was unable to find any reference in it to an investigation into him on these grounds.

It is unclear why the board felt the need to rely on the article, as it also made adverse findings about Mr Sahathevan’s character based on a series of other allegations including that he used “threatening and intimidating” language in emails to the College of Law and the NSW Attorney General and did not disclose his sacking from a previous job to the board.

Mr Sahathevan has denied the allegations in correspondence with the board.

The board also cited evidence that one of Mr Sahathevan’s blogs on Malaysian politics was banned by the Najib regime as indicating his poor character.

In an email to Chief Justice Bathurst, sent on August 30, Rewcastle-Brown said her site, Sarawak Report, which exposed much of the 1MDB scandal, was banned by the Malaysian government.

“I along with other critics of the 1MDB scandal (which includes Mr Sahathevan) became the target of immense state-backed vilification, intimidation and online defamation campaigns on behalf of the Malaysian government,” she said.

She said the board’s use of the Third Force article against Mr Sahathevan displayed “a troubling level of misjudgment and poor quality research, giving a strong impression that someone seeking to find reasons to disqualify this candidate simply went through the internet looking for ‘dirt’ against him”.

“The Third Force has consistently been by far the most outlandish, libellous, vicious and frankly ludicrous of all the publications that were commissioned as part of former prime minister Najib Razak’s self-proclaimed ‘cyber army’ which he paid (and continues to pay) to defame his perceived enemies and critics,” she said.

Besser, who now works in the ABC’s London bureau, told The Australian: “It’s clearly nonsense and comes from the darkest corners of some pretty wild Malaysian conspiracy theorists.”

Mr Sahathevan’s application is to be reconsidered at an LPAB meeting next month (Admission has since been denied, for the same reasons, but without explicit reference to the Thirdforce story).

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Sunday, December 8, 2019

Lawyers take note: This trait that makes others a success can deem you "Not Fit And Proper" in the eyes of the NSW LPAB

Sunday, December 8, 2019


by Ganesh Sahathevan



Readers will be aware that this writer has been found not fit and proper for admission to practise law in NSW (see story below).

Among the findings against this writer was the finding that this writer appears to have a problem with authority; examples of how this writer has demonstrated disrespect for the Chief Justice, the Governor, the Attorney General, and especially the senior managers of the College Of Law (to whom the NSW LPAB feels this writer owes an apology, to each and everyone concerned , individually).It was also found that this writer had "defamed" a number of unnamed "eminent persons", despite there never being a finding by any court anywhere of defamation against this writer.

So, it was with some degree of consolation that this writer read this recent study into the traits of millionaires and billionaires: 
Many ultra-wealthy people are great leaders, but that doesn’t mean they’re good at being led.
A psychological study of 43 ultra-high net worth individuals from across the globe by German researcher Rainer Zitelmann found that one of the personality traits many of them share is a problem with authority.

Having said that,coming from the Ceylon Tamil community which has produced most of Malaysia and Singapore's lawyers,this writer is more than familiar with the protocols of addressing judges,and can say that that acceptable conduct that  has been witnessed in Australia, and in particular NSW  would be regarded as  evidence of poor upbringing by Asian standards. 

END 

Bizarre blog claims used to deny man right to practise law



The body overseen by Chief Justice Tom Bathurst responsible for deciding who can practise law in NSW relied on a wildly defamatory Malaysian blog depicting ABC journalists, former British prime minister Tony Blair, financier George Soros and others as part of a global conspiracy when deciding to deny a would-be solicitor a certificate to practise.

Chief Justice Bathurst and Legal Practitioner Admission Board executive officer Louise Pritchard declined to answer The Australian’s questions about how the article came into the board’s hands and why its members felt the conspiracy-laden material could be relied upon as part of a decision to deny Sydney man Ganesh Sahathevan admission as a lawyer. Nor would either say which of the 10 members of the LPAB, three of whom are serving NSW Supreme Court judges, was on the deciding panel.

Ms Pritchard has left her role at the LPAB since The Australian began making inquiries in September. The article, published in December 2017 on website The Third Force, accuses Mr Sahathevan of engaging in a conspiracy to attack then Malaysian prime minister Najib Razak.

READ NEXT



Mahathir Mohamad, who returned as prime minister after toppling Mr Najib in elections held last May, is also smeared as a participant in the globe-spanning conspiracy.

Mr Najib was under pressure at the time over the country’s sovereign wealth fund, 1MDB, which the US Department of Justice says has been looted of billions of dollars that was spent on property, art, jewels and the Leonardo DiCaprio film, The Wolf of Wall Street.

Malaysian authorities have charged Mr Najib with dozens of corruption offences that could attract decades in jail over his role in the 1MDB scandal, which allegedly included the flow of about $US1 billion through his personal bank account.

The article’s author, Malaysian political operative and Najib loyalist Raggie Jessy, also accused Rewcastle-Brown, Stein and Besser of receiving money, totalling millions of dollars, to participate in a Four Corners program exposing the 1MDB scandal that aired on the ABC in March 2016.

There is no suggestion any of Mr Jessy’s bizarre allegations are true. However, the LPAB cited the piece when denying Mr Sahathevan admission as a lawyer in an undated and unsigned set of reasons sent to him on August 3 last year.

It used the article as evidence in a passage dealing with legal conflicts between Mr Sahathevan, who has largely worked in the past as a journalist, his former employer, Malaysia’s Sun Media Group, and the company’s owner, tycoon Vincent Tan.

In that context, the board said the Third Force article reported “that Mr Sahathevan was investigated for blackmail, extortion, bribery and defamation”. While the article claims that blackmail, extortion, bribery and defamation “are but some of the transgressions many from around the world attribute” to Mr Sahathevan, The Australian was unable to find any reference in it to an investigation into him on these grounds.

It is unclear why the board felt the need to rely on the article, as it also made adverse findings about Mr Sahathevan’s character based on a series of other allegations including that he used “threatening and intimidating” language in emails to the College of Law and the NSW Attorney General and did not disclose his sacking from a previous job to the board.

Mr Sahathevan has denied the allegations in correspondence with the board.

The board also cited evidence that one of Mr Sahathevan’s blogs on Malaysian politics was banned by the Najib regime as indicating his poor character.

In an email to Chief Justice Bathurst, sent on August 30, Rewcastle-Brown said her site, Sarawak Report, which exposed much of the 1MDB scandal, was banned by the Malaysian government.

“I along with other critics of the 1MDB scandal (which includes Mr Sahathevan) became the target of immense state-backed vilification, intimidation and online defamation campaigns on behalf of the Malaysian government,” she said.

She said the board’s use of the Third Force article against Mr Sahathevan displayed “a troubling level of misjudgment and poor quality research, giving a strong impression that someone seeking to find reasons to disqualify this candidate simply went through the internet looking for ‘dirt’ against him”.

“The Third Force has consistently been by far the most outlandish, libellous, vicious and frankly ludicrous of all the publications that were commissioned as part of former prime minister Najib Razak’s self-proclaimed ‘cyber army’ which he paid (and continues to pay) to defame his perceived enemies and critics,” she said.

Besser, who now works in the ABC’s London bureau, told The Australian: “It’s clearly nonsense and comes from the darkest corners of some pretty wild Malaysian conspiracy theorists.”

Mr Sahathevan’s application is to be reconsidered at an LPAB meeting next month (Admission has since been denied, for the same reasons, but without explicit reference to the Thirdforce story).

    
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