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UK tribunal holds calling a man bald is sex harassment

The facts

Tony Finn was employed by beer barrel stopper maker British Bung Company as an electrician between 22 September 1997 and 25 May 2021.

In late July 2019 an altercation between Finn and Jamie King occurred. Finn alleged of that incident that:

“I was working on a machine that I had to cover awaiting specialist repair. The covers were taken off, and it was apparent that Jamie King had done this. When I spoke to him about it, he began to call me a stupid old bald cunt and threatened to ‘deck me.’ Fearful for my personal safety I retreated to the nearby office of Ady Hudson, supervisor. Jamie continued his tirade of threats and abuse at the office door.”

Later, Finn claimed he had been called a “fat bald old cunt” by King in that incident.

A further incident on 25 March 2021 occurred in which King again threatened Finn.

Because a subsequent statement by Finn was prepared on West Yorkshire Police letterhead paper, Finn was dismissed on the grounds that he had “deliberately provided a witness statement which falsely suggested on its face and by its content, that it had been made to, and taken by, West Yorkshire Police in connection with the investigation of an alleged crime”.

In dismissing Finn with immediate effect, British Bung Company wrote to him that:

“We do not accept your explanation, or that you acted in good faith, or that there was merely an oversight. You did not apologise. On the contrary, you said that you did not think that you had done anything wrong… We are satisfied that your actions amount to gross misconduct justifying your immediate dismissal. In light of your failure to apologise, and insistence that you have done nothing wrong, we are satisfied that it would be impossible to have trust and confidence in you as our employee.”

British Bung Company letter to Finn

Finn was dismissed from his employment without notice despite until March 2021 having an unblemished disciplinary record over nearly 24 years of service.

Tribunal’s decision

The Tribunal panel, headed by Employment Judge Brain, found that Mr King did call Finn a “bald cunt” and that the word “old” did not feature. The Tribunal also found that King did threaten Finn with physical violence, rejecting King’s denials:

“We can attach no significant weight to Mr King’s version of events. Having received a warning from the respondent about the July 2019 incident it is unsurprising that he gives an account in which effectively he denies the use of threatening words or behaviour towards the claimant.”

Employment Judge Brain

The Tribunal found that the reason for the dismissal was the Finn’s conduct in presenting British Bung Co with a witness statement on West Yorkshire Police headed notepaper and which gave the appearance of matters having become a police matter. The Tribunal was satisfied that the health and safety reason and the protected disclosures were not the reasons for the dismissal.

Because Finn was led to believe that no decision would be made by British Bung Co pending hearing from the West Yorkshire Police with the outcome of their enquiries, only for his employer British Bung to dismiss him only two working days later, it was held good faith was lacking in British Bung’s disciplinary hearing which was not cured on its internal appeal.

The reason why this decision made headlines was due to the Tribunal’s finding that Mr King‘s comment amounted to harassment under the Equality Act 2010 because it targeted a protected characteristic, namely his sex:

“Plainly, some words or phrases would clearly be related to a protected characteristic. Where the link is less obvious then Tribunals may need to analyse the precise words used, together with the context, in order to establish whether there is any negative association between the two.

In our judgment, there is a connection between the word “bald” on the one hand and the protected characteristic of sex on the other. Miss Churchhouse was right to submit that women as well as men may be bald. However, as all three members of the Tribunal will vouchsafe, baldness is much more prevalent in men than women. We find it to be inherently related to sex. (In contrast, we accept that baldness affects (predominantly) adult males of all ages so is inherently not a characteristic of age)…

it is much more likely that a person on the receiving end of a remark such as that made by Mr King would be male. Mr King made the remark with a view to hurting the claimant by commenting on his appearance which is often found amongst men. The Tribunal therefore determines that by referring to the claimant as a “bald cunt” on 24 July 2019 Mr King’s conduct was unwanted, it was a violation of the claimant’s dignity, it created an intimidating etc environment for him, it was done for that purpose, and it related to the claimant’s sex.”

The complaint of harassment relating to sex arising out of the incident of 24 July 2019 therefore succeeded.

The claims that Finn was unfairly dismissed upon the grounds that he made the disclosures of the incidents of July 2019 or 25 March 2021, or for the health and safety reason, failed. However, the claim that Finn was unfairly dismissed pursuant to sections 94 to 98 of the Employment Rights Act 1996 succeeded because of the lack of good faith by British Bung Co in respect of the manner in which Finn was dismissed.

Full story: https://sterlinglawqld.com/uk-tribunal-holds-calling-a-man-bald-is-sex-harassment

Ghislaine Maxwell’s conviction for sex trafficking upheld

Jeffrey Epstein’s long time girlfriend Ghislaine Maxwell has had her sex trafficking conviction upheld.

Judge Alison Nathan of the United States Court of Appeals for the Second Circuit upheld Maxwell’s conviction for transporting a minor with the intent to engage in criminal sexual activity and sex trafficking of minors.

However, Judge Nathan ruled that the three conspiracy counts Maxwell was convicted of were “multiplicitous,” and sentencing the convicted sex trafficker on all of them would violate the Fifth Amendment’s Double Jeopardy Clause.

Maxwell was found guilty in December by a 12-person New York jury of five of the six counts she was facing, including sex trafficking.

Maxwell is due to be sentenced in June.

Full story: https://sterlinglawqld.com/ghislaine-maxwells-conviction-for-sex-trafficking-upheld/

Douglas Winning refused High Court leave to appeal against corruption conviction

At about 1.00 am on Sunday 17 February 2019, police were patrolling in Rockhampton when they saw a car driving erratically and knocking over a street sign. They pulled the car over and found the driver was local solicitor Douglas “call me Doug” Winning.

Winning folded the cash in his right hand and extended his right arm out of the car, and towards the officers, keeping it there for some time.

Soon after, Winning still had the $300 cash in his hand and said “You wa-, you wanna lazy quid?”.

Winning pleaded guilty to drink driving. After a trial, Winning was convicted of official corruption.

Despite Morrison JA’s detailed and cogent judgment, Winning subsequently sought to appeal to the High Court.

Full story:


Chris Dawson refused High Court leave to appeal for a permanent stay

Former high school teacher and rugby league player Chris Dawson is accused of having murdered his wife Lynette Dawson 40 years ago.

Lynette, 33, disappeared from their Bayview home on Sydney’s northern beaches in January 1982, leaving behind their two young daughters Shanelle and Sherryn, then aged four and two.

In a brief judgment, High Court judges Stephen Gageler and Michelle Gordon upheld the rulings made by the NSW ­Supreme Court and Court of Criminal Appeal, which had previously rejected his application to strike the case out.

Justice Gageler said there was no sufficient reason to doubt the decision of the Court of Criminal Appeal.

Full story:

Race hate hoaxer Jussie Smollett gets appeal bail

In December, American actor Jussie Smollett was found guilty by a jury of falsely reporting a hate crime against himself.

He claimed two racist Trump supporters wearing MAGA hats beat him up. It turned out he had paid two Nigerian brothers to stage the whole thing so that he could pretend to be a victim of a racist and homophobic hate crime.

Earlier this month, Smollett was sentenced to 150 days in Cook County jail, and 30 months of felony probation, as well as restitution of $120,106 and a $25,000 fine.

Since then, Smollett was ordered to be released from jail after posting a personal recognizance bond of $150,000 by an appeals court pending the appeal against his convictions.

In Australia, a convicted person must ordinarily demonstrate exceptional circumstances in order to get appeal bail. The position appears to be different in America.

District Court stays claim because of Australian Financial Complaints Authority’s bureaucratic bumbling — Sterling Law QLD

It is well known that many public bodies these days are obsessed with political correctness and identity politics, and spend a lot of their time fussing on topics such as equity, diversity, inclusion, harmony days, ‘unconscious bias’, and the like. Once can only imagine that they hold regular meetings where they talk about topics such as their gender pronouns, paleo pear and banana bread, and what a relief that in a few months time the Morrison federal government will be replaced by a Labor-Greens Coalition, but how the ideal would be a Greens Government with Adam Bandt as Prime Minister and socialism being tried once again.

Supporters and apologists of this frivolity often use the cliché that organisations can “chew and walk gum at the same time”, however a recent District Court decision to stay a proceeding as a result of bureaucratic bumbling undermines such claims.

The facts

The Australian Financial Complaints Authority is an external dispute resolution scheme that is supposed to deal with complaints from consumers and small business about financial products and services. 

The following case reveals that the extent to which AFCA deals with complaints is doubtful, however we were elated to find out that what is not in doubt is that it commemorates ‘Transgender Day of Remembrance‘, and on its own admission everyone at AFCA recently wished us a Happy Mardi Gras.

On 25 November 2019, ANZ Banking Group applied to the District Court for recovery of possession of mortgaged properties on the basis that the debt that is secured by those mortgages had not been paid by the respondent debtors. The debtors then made complaint to AFCA, which resulted in the proceedings being adjourned pending AFCA’s determination. In September 2021, AFCA belatedly issued what it called a recommendation, which was not binding on the parties.

Barlow DCJ decided to stay the proceedings because of the delay occasioned by AFCA.

Read more:

Indictable offences dealt with in the Magistrates Court of Queensland

Generally, indictable offences in Queensland are dealt with by the District or Supreme Courts, as they are usually serious offences. However, in some cases, indictable offences can or must be dealt with in the Magistrates Court.

The Criminal Code

Section 1 of the Criminal Code 1899 (Qld) defines an “indictment” to mean a written charge preferred against an accused person in order to the person’s trial before some court other than justices exercising summary jurisdiction. A “summary conviction” is defined as summary conviction before a Magistrates Court.

Section 3 of the Criminal Code provides that offences are of 2 kinds, namely, criminal offences and regulatory offences. Criminal offences comprise crimes, misdemeanours and simple offences. Crimes and misdemeanours are indictable offences, which means that the offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court.

Sections 1 and 3 of the Code make it clear that the indictable offences are to be dealt with in the District or Supreme Courts, unless the Code provides otherwise. In the District or Supreme Courts, a jury is ordinarily the trier of fact in a criminal trial. In contrast, a trial in the Magistrates Court is called a summary trial, and the presiding Magistrate is the sole trier of fact (ie, there is no jury). A matter dealt with summarily is dealt with in the Magistrates Court.

When indictable offences must or can be heard summarily

Chapter 58A of the Criminal Code (containing sections 552A-552BB inclusive) provides for when indictable offences must or can be heard summarily:

– Section 552A of the Criminal Code provides for a list of indictable offences which must be dealt with summarily on Prosecution election.

– Section 552B of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless the defendant elects for a jury trial.

Section 552BA of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless they are excluded offences under section 552BB of the Code.

– Sections 552A, 552B and 552BA of the Criminal Code are all subject to section 552D, which provides that the Magistrates Court must abstain from hearing and determining a charge and must instead conduct a committal proceeding if it is an offence listed at Schedule 1C of the Penalties and Sentences Act 1992, the Court is of the view that the defendant may not be adequately punished on summary conviction after considering submissions, or if exceptional circumstances exist.

– Section 552H of the Criminal Code provides that the maximum period of imprisonment under section 552A, 552B or 552BA is three years, unless the court is constituted by a magistrate imposing a drug and alcohol treatment order, in which case the maximum penalty is four years imprisonment.

Indictable offences which Prosecution can elect for summary trial

The list of indictable offences that must be dealt with summarily on Prosecution election is contained at section 552A(1) of the Criminal Code.

The offences listed include the commission, counselling or procuring, attempt, or becoming an accessory after the fact of any of the following offences under the Criminal Code:

Section 141: Aiding persons to escape from lawful custody.

Section 142: Escaping from lawful custody.

Section 143: a person responsible for keeping someone in lawful custody permitting escape from lawful custody.

Section 205A: Contravening an order about information necessary to access information stored electronically.

Section 340: assaults committed with intent to commit a crime, or as part of an unlawful conspiracy in relation to any manufacture, trade, business, or occupation or committed against a police officer, a person performing a legal duty, a person aged over 60, or a person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device.

Indictable offences which must be dealt with summarily unless defence elects jury trial

The indictable offences that must be dealt with summarily unless the defence elects for a jury trial are listed at Section 552B(1) of the Code.

The offences listed include the commission, counselling or procuring, attempt or becoming an accessory after the fact of any of the following offences under the Criminal Code:

A sexual offence without a circumstance of aggravation for which the defendant has pleaded guilty, the complainant is at least 14 years of age and the maximum sentence is more than three years.

Section 339: assault occasioning bodily harm which is not committed in company, without the use of a dangerous or offensive weapon or instrument and not during the term of a community service order.

An offence involving an assault without a circumstance of aggravation and which is not of a sexual nature, and for which the maximum penalty is more than 3 years but not more than 7 years.

Section 60A: Participants in criminal organisation being knowingly present in public places.

Section 60B: Participants in criminal organisation entering prescribed places and attending prescribed events.

Section 76:  Recruiting a person to become participant in criminal organisation.

Section 77B:  Habitually consorting with recognised offenders.

Section: 316A: Unlawful drink spiking.

Section 328A: Dangerous operation of a vehicle (with a circumstance of aggravation at Section 328A(2)).

359E Punishment of unlawful stalking if the maximum term of imprisonment for which the defendant is liable is not more than 5 years.

An offence against chapter 14 (Corrupt and improper practices at elections), division 2 (Legislative Assembly elections and referendums), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.

An offence against chapter 22A (Prostitution), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.

An offence against chapter 42A (Secret Commissions).

Indictable offences which must be dealt with summarily

Section 552BA(4) of the Code provides that ‘relevant offences’ must be heard and dealt with summarily.

Relevant offences are defined as indictable offences which either:

  1. 1. carry maximum sentences of three years or less; or
  2. 2. are an offence under part 6 of the Code, excluding an offence under Chapter 42A (secret commissions) or an ‘excluded offence’ listed at Section 552BB.

Excluded offences

The list of excluded offences contained in the table of Section 552BB includes the following offences:

Section 461: Arson

Section 462: Endangering particular property by fire.

Section 463: Setting fire to crops and growing plants

Section 467: Endangering the safe use of vehicles and related transport infrastructure

Section 469A: Sabotage and threatening sabotage

Section 470: Attempts to destroy property by explosives

Read full story: https://sterlinglawqld.com/indictable-offences-dealt-with-in-the-magistrates-court-of-queensland

Ipswich lawyer Cameron McKenzie struck off for extortion

Cameron McKenzie

On 1 February 2017, Cameron McKenzie sent a solicitor’s letter at the request of then Ipswich Mayor Paul Pisasale to the complainant. The letter falsely claimed that McKenzie was acting for the complainant’s wife, and demanded that the complainant pay various sums said to reflect expenses incurred for a private investigator, miscellaneous charges, and legal costs.

That demand was accompanied by a threat to cause detriment. In the absence of payment the complainant was to “Answer for your actions in the Federal Court of Australia”, and that a failure to accept the offer may lead to the complainant being criminally prosecuted through his actions being discovered in a court of law.

In July 2019, a Brisbane District Court jury found McKenzie guilty of one count of extortion. McKenzie was sentenced to 18 months’ jail, suspended after serving 9 months.

McKenzie appealed his conviction on the ground that it was not open to a jury to conclude beyond reasonable doubt that he knew that Ms Li had not incurred expenses (if, in fact, that had been proven).

In March 2020, the Court of Appeal dismissed McKenzie’s appeal. Morrison JA noted among other things that McKenzie was given divergent amounts claimed by Pisasale, only dealt with Pisasale and exchanges subsequently entered into with Pisasale revealed an intent to scare the complainant. Morrison JA (with whom the other judges agreed) held that these matters entitled the jury to be satisfied of the absence of reasonable cause and the true nature of what was intended when the letter of demand was sent.

McKenzie unsuccessfully applied for leave to appeal to the High Court.

McKenzie resisted a striking off order, arguing that he should be suspended from practising for a period of three years, undergo ongoing psychological treatment and submit to ethics training. His Barrister Christopher Upton argued that McKenzie was remorseful, contrite and embarrassed by his conduct. Read full story:


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