This morning, the Sydney Morning Herald reported a story about a Sydney based hire-car driver who, sick of Uber X drivers, ordered one himself and proceeded to “arrest” him (J. Saulwicjk and M. Power, “Taxi and hire car drivers plot fight back against uberX“, Sydney Morning Herald, 24 November 2014).
The arrest was obviously a manufactured spectacle, with the disgruntled hire-car driver inviting SMH’s reporters to the Star to witness the thing.
The article wasn’t quite clear about what the driver did when the poor Uber X driver arrived. The scant detailing seemed to suggest that:
- somehow the hire-car vigilante got the Uber X driver out of his car; and,
- somehow the hire-car vigilante got the Uber X driver to stay at the scene, not only until Casino Security arrived, but until the police arrived.
Since the text of the article suggested that this was more than a mere venting of the hire-car driver’s spleen, but an “arrest”, I will assume that the traditional definition of arrest applies, simply, that the Vigilante deprived the Uber X driver of his liberty.
The SMH stated that it is perfectly legal to undertake a “citizen’s arrest” where you see someone committing an offence.
I don’t think that we should take this statement at face value. Rather, let’s break this down step by step.
The SMH statement seems to be based on S100 of LEPRA, which states:
Section 100 – Power of other persons to arrest without warrant
(1) A person (other than a police officer) may, without a warrant, arrest a person if:
(a) the person is in the act of committing an offence under any Act or statutory instrument, or
(b) the person has just committed any such offence, or
(2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
Section 231 of LEPRA then provides that, in the course of the arrest, the vigilante “may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest”.
So, there are a few elements that need be carried out for the vigilante arrest to be within the law:
- the arresting person must not be a police officer [✓]
- the arrested person must satisfy one of the conditions in sub-s (a)-(c) [?]
- the arresting person must take the arrested person to an authorised officer [x]
The first requirement, here is uncontroversial.
… an offence under an Act …
The second is a little more complex. First, it has to be shown that the arrested person was doing something that is an offence under an Act.
There is relevant legislation. There are, here, provisions about who may be a taxi-driver, and what constitutes a hire-car.
That the arrested person does not comply with these requirements is not enough to arrest him or her. The arresting person must show that driving an Uber X is not only breaching a provision of these laws, but that such a breach is an offence under that legislation. This is not plain, and the NSW Government’s jawboning on the issue (despite what the SMH may say) does not make it more of an offence.
Further, even if it is shown that driving in such a manner is an offence, the arresting person must show that a breach was occurring or just occurred. If the Uber X was electronically hailed, but no offence was yet committed (despite the likelihood of the offence occurring), then the arrest is in breach of these provisions of LEPRA.
… an authorised officer …
The third requirement burdens the arresting person with producing the arrested person before an “authorised officer” (see s 3 definition of “authorised officer”). This is not an open-ended category, but is strictly defined, including only a magistrate, registrar or certain Attorney General’s department employees.
This certainly does not include police officers, who were the only persons called after the “arrest,” depriving the arrested person from the right to be “dealt with according to the law”.
This failure brings the whole process outside of the provisions for a “citizen’s arrest” under LEPRA – leaving the hire-car batman (likely) outside of the protections of an arresting person under LEPRA.
… such force as is reasonably necessary …
Even if the arrest is carried out to the letter of the law, our hire-car Batman is still not in the clear. If any force was used in making the arrest, it must have been reasonably necessary.
Here, you can get in trouble even if the crime that the arrested person was detained for was serious. There is not much flexibility here, as vigilantism is discouraged.
Where the “offence” was one of a type that would be ordinarily dissuaded by the issuance of a fine or a court attendance notice, and where a reasonable cop would be very unlikely to arrest someone (e.g. most traffic and licensing offences, and most offences covered by the relevant legislation), then leniency would be even narrower. You are unlikely to get away with anything.
If our Batman arrests a person improperly, or with greater force than is reasonably necessary, he himself will have committed at least tortious assault and false imprisonment and possibly some crimes as well.
This is a dangerous game (which could lead to the absurd result where one party “citizens arrests” the person who originally tried to “citizens arrest” them for committing crimes in the attempt of an arrest, potentially ad infinitum), and should definitely not have been encouraged by the SMH.
Don’t try this at home, or anywhere – even if you are doing it right, you can get in trouble.
Last semester I wrote a thesis entitled:
An analysis of the mechanism of perfection by control in the PPSA, and a critique of the mechanism by an application to control of an ADI account, and control of Bitcoin.
With the kind supervision of Jason Harris, I was able to write a paper that straddled two relatively novel areas of law that interested me: the Personal Property Securities Act (2009) and Bitcoin. Since I will be submitting parts of the paper for publication, I am not going to post the whole thesis here. However, I am happy to post my abstract:
This thesis is a critical analysis of a complex, and largely novel part of the Personal Property Securities Act (2009) – perfection by control. This Act serves to rank the interests of secured parties in the collateral that secures them.
Whilst most interests are ranked according to the time that they are registered, there are a few exceptions to this. Most relevantly for this thesis, one such exception is security interests perfected by control. These interests are in intangible assets. Where the control provisions are satisfied, they grant the secured party a super-priority over registered interests.
The nature of this super-priority is explored in the first case study, which analyses a priority contest between a Bank’s interest (so perfected), and the proceeds of a purchase money security interest (a lesser super-priority).
However, the Achilles heel of the control provisions is the restriction of the asset-classes to which control applies, and its corollary: asset specific tests for control. This weakness is highlighted by the second case study – a priority contest similar to the first, but with a novel intangible asset – a bitcoin account.
First, this chapter shows the possible results of such a priority contest, highlighting the consumer protection benefits of applying control to the novel asset-class. Second, the asset-class is normatively and technically analysed, proving that the secured party in this novel asset-class holds equal or greater “actual” control than secured parties in established, controllable asset-classes.
Then, the current asset-class-specific control provisions are applied to the priority contest, and it is shown that the current provisions do not allow such an interest to be perfected by control.
Using the second case study as an analytic fulcrum, this thesis posits that the current, asset-class-based tests are too narrow, artificially constricting perfection by control. After an analysis of the central similarities of the control provisions, this thesis presents an alternate, universal test for control.
I am also proud to publish here my acknowledgements. Without the people I mention below, I would not have been able to write what I did.
I would like to acknowledge and thank my supervisor, Jason Harris, for his counsel, guidance and support. I would like to thank Nicholas Mirzai, Amor Sexton and Bianca Balzer for being sounding boards for my ideas.
I would like to acknowledge my father, Avner Ottensooser, for explaining to me the technically correct manner of expressing the mechanisms of bitcoin graphically, and for auditing my technical ideas. I also wish him a speedy recovery.
I would like to thank the Australian Digital Currency and Commerce Association, especially board members Jason Williams of BitPos and Ronald M. Tucker of Bit Trade Australia for technical assistance. I would also like to thank the Banking and Financial Services Law Association for hosting a talk on Bitcoin at exactly the right time, giving me a few new ideas to ponder.
Working as a Tipstaff in the Supreme Court, I often get called by barristers and their assistants if the Judge is robing for the day’s matter. To clear things up, I present to you the following cheat-sheet, although, remember, if you are ever unsure, feel free to call the chambers of the Judge you are before and the Tipstaff or Associate should be able to help you out. Also note, this is a general guide, some Judges have different robing habits.
Rule of thumb:
For a hearing: robe.
This is the basic rule. From this, most other rules derive. For example, since judgment is an extension of a hearing, you robe for judgment as well.
Second rule of thumb:
Generally, do not robe for a Notice of Motion.
However, there are some exceptions to this second rule, especially when certain “court lists” are involved.
For an appearance before the Duty Judge, Robe.
I believe that this is because, in the Duty List, there may be a situation where, although the case is brought at short notice, the matter may be dealt with as if there was a hearing.
For an appearance in the Probate or Protective Lists, Robe.
This appears to be a matter of tradition.
There’s a summary list after the jump… Continue Reading…
C.f. the 8th Amendment of the United States Constitution with “Botched lethal injection takes nearly two hours to kill Arizona inmate.” Horrifying.
Text of 8th Amendment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
- Arizona Takes Nearly 2 Hours to Execute Inmate
- Outrage Across Ideological Spectrum in Europe Over Flawed Lethal Injection in U.S.
- One Execution Botched, Oklahoma Delays the Next
- Ohio Execution Using Untested Drug Cocktail Renews the Debate Over Lethal Injections
“The Bitcoin is Property” N Mirzai and J Ottensooser (2014) 29(5) APLB 94
The article discusses whether bitcoin is property, in both common law and following the economic indicia. Further, this article discussed the definition of bitcoin, a bit of international context and some policy ramifications of bitcoin being classified as property.
Here’s a sneak peek:
Some articles I recommend:
- “Trial by Fire” by David Grann, about use and misuse of expert evidence in an arson trial. This is one of the most poignant articles I have ever read.
- “The Good Cook” by Barbara Demick, which was an article that really exposed to me the level of poverty, abuse and propagandism in North Korea.
- “Me Myself and I” about the fascinating philosopher Michel Montaigne. This article includes the fantastic quote:
“Nature has very conveniently cast the action of our sight outwards. […] Everyone says: ‘Look at the motions of the heavens, look at society, at this man’s quarrel, that man’s pulse, this other man’s will and testament’—in other words always look upwards or downwards or sideways, or before or behind you. Thus, the commandment given us in ancient times by the god at Delphi was contrary to all expectations: ‘Look back into your self; get to know your self; hold on to your self.’ . . . Can you not see that this world of ours keeps its gaze bent ever inwards and its eyes ever open to contemplate itself? It is always vanity in your case, within and without, but a vanity which is less, the less it extends. Except you alone, O Man, said that god, each creature first studies its own self, and, according to its needs, has limits to his labors and desires. Not one is as empty and needy as you, who embrace the universe: you are the seeker with no knowledge, the judge with no jurisdiction and, when all is done, the jester of the farce.”
- “We Have No Bananas” by Mike Peed, about the fascinating history and science behind the modern banana. No kidding! Apparently we (the current generation) have never tried the delicious banana that was standard in the early 20th century, which was wiped out by a blight and replaced by the hardier, but less delicious “Cavendish” variety (which, itself, is under threat).
- “Get Out of Jail, Inc.” by Sarah Stillman about alternatives to incarceration.
- “The Running Novelist” by Haruki Murakami, about the meditation and pleasure of a long run.
- “The Wisdom of Children” by Simon Rich, one of the funniest pieces of satire from the “Shouts and Murmurs” section of the paper.
Enjoy and good luck for the test!
- Intermediate Microeconomics (Consumer Model)
- Intermediate Microeconomics (Producer Model)
- Intermediate Microeconomics (Insurance and Monopolies)
- Intermediate Microeconomics (Equilibrium, general equilibrium and trade)