Sometimes courts shoot themselves in the foot so badly with a pathetic judgement that they end up coming under scrutiny themselves and judgement is passed on the courts. This is what happened when Justice Campbell of the Supreme Court of NSW handed down a judgement in the Thomas Kelly manslaughter case on Friday the 8th November.
The Australian media handed down their own judgement on Justice Campbell and his decision extremely swiftly and the matter is now under appeal after intervention by the Attorney-General Greg Smith. Justice Campbell’s credibility is in a thousand pieces and it won’t be improving any time soon but most have missed the real problem and that is how did Campbell get appointed a judge in the first place.There the responsibility lies with the Attorney-General Greg Smith and Premier Barry O’Farrell.
A young man was murdered and almost all of those with a duty to right the wrong have failed. Some of those being:
- The Director of Public Prosecutions who did a deal to downgrade the police charge of murder to manslaughter. The current DPP is Lloyd Babb who is mate of the corrupt Attorney-General Greg Smith. Both have bludged off the tax payer for many years.
- The judge, Justice Campbell, who at best is an incompetent fool out of his depth.
- The attorney-general Greg Smith who is as corrupt as they come and a failure as an AG as this site has pointed out many times before who needs to justify why he appointed Campbell as a Judge in the first place.
- Chief Justice Bathurst who needs to explain why a judge who only has civil law experience was dealing with a criminal matter.
Firstly let’s look at the case and what failure Justice Campbell is.
Background
Thomas Kelly was killed when his head hit the ground after a single punch by Kieren Loveridge. Mr Loveridge assaulted numerous other people that same night and had previous convictions.
The police charged Mr Loveridge with four assaults and, in relation to Mr Kelly, with murder. The Director of Public Prosecutions decided that they would negotiate to down grade the murder charge to manslaughter which is very odd given that Mr Loveridge clearly had intent to hurt people that night.
The media have followed the case closely and when Justice Campbell handed down his decision on the 8/11/13 they did not hold back in criticism which lasted for days. Two of the best were “Judge with no sense of the real world” in the SMH by Paul Sheehan who said:
“Campbell is a career compensation lawyer. In his first 18 months on the bench he has turned out to be a difficult proposition for the victims of crime and their families. At least Loveridge is in jail, for the time being. And what a hatful of surprises Campbell has delivered during his short time on the bench.”
and “In his almost 8000-word judgment, Campbell paid lip service to the grief of the victims and the standards of society, then imposed a sentence that made a mockery of both.”
and “There is no hope for justice in NSW” in The Daily Telegraph by Tim Priest who said “the charge of murder was plea-bargained down by the DPP to the lesser offence of manslaughter, even though the arresting detectives were satisfied there was a prima facie case for homicide.”
The background of the matter is set out well in an article by the former Director of Public Prosecutions, Nicholas Cowdery. The rest of his article I find disgraceful and I will deal with it later.
“The background is that around 10pm on Saturday July 7, 2012, 18-year-old Thomas Kelly was walking with friends in a street in Kings Cross, minding his own business, when heavily intoxicated and violent 19-year-old Kieren Loveridge punched him to the head with a “king hit”. Thomas went down, his head striking the pavement causing massive brain damage from which he died two days later. Police charged Loveridge with murder. He was also charged with other offences of violence stemming from other less serious (in terms of results) assaults that night before the attack on Kelly. Loveridge had been on a bond for earlier offences of violence.”
“The Kelly family featured prominently in media reports from very early in the treatment of the matter. Quite rightly, they drew attention to the level of alcohol-fuelled violence in Sydney, especially in the Kings Cross area. The NSW Government reacted almost immediately by turning attention to better regulation of drinking and drinkers in the city, attention that is ongoing.” (Click here to read more)
An organisation called the Thomas Kelly Youth Foundation was set up by Ralph Kelly the father of Thomas a couple of months after Thomas’s murder to drive change for a safer and healthier community. This would have also helped keep the political and media attention on the matter. (Click here to visit the foundation’s website)
It is worth having a closer look at two points. Firstly the “other less serious (in terms of results) assaults that night before the attack on Kelly”. Loveridge was also charged with these matters. Without going into all the detail Loveridge was also charged with assaulting four other people that night in separate incidents which he was found guilty, so it was clear he was out to do damage and hurt people. It is set in the judgement:
Supreme Court New South Wales
- Medium Neutral Citation: R v Loveridge [2013] NSWSC 1638
- Hearing Dates: 25/10/13
- Decision Date: 08/11/2013
- Jurisdiction: Common Law – Criminal
- Before: Campbell J
- Decision: The offender is convicted and sentenced as follows:
(1) For the third count, the offence of assaulting Matthew Serrao, I sentence you to a fixed term of imprisonment of 4 months commencing on 18th September 2012 and expiring on 17th January 2013;
(2) For the fourth count, the offence of assaulting Rhyse Saliba, I sentence you to a fixed term of imprisonment of 4 months commencing on 18th November 2012 and expiring on 17th March 2013;
(3) For the fifth count, the offence of assaulting Aden Gazi, I sentence you to a fixed term of imprisonment of 4 months commencing on 18th March 2013 and expiring on 17th July 2013;
(4) For the second count, the offence of assaulting Marco Compagnoni occasioning him actual bodily harm, I sentence you to a fixed term of imprisonment of 6 months commencing on 18th May 2013 and expiring on 17th November 2013;
(5) For the first count, the manslaughter of Thomas Kelly, I sentence you to a term of imprisonment having a non-parole period of 4 years commencing on 18th November 2013 and expiring on 17th November 2017, with an additional term of 2 years commencing on 18th November 2017 and expiring on 17th November 2019.
The earliest date on which you will be eligible for release on parole is 18th November 2017.
The total effect of sentence therefore is one of 7 years and 2 months with an effective non-parole period of 5 years and 2 months.
19. Shortly after the attack on Thomas Kelly, the offender was outside the second Kings Cross club in Bayswater Road. He approached a person he had met before who went to greet him when the offender started swinging his elbows at the acquaintance’s head, who pushed him away. When the offender recognised the acquaintance he hugged him and apologised but said, “I swear I am going to bash someone tonight”. This statement, to my mind, supports the finding I have already made (at [12]) that by reason of his drunkenness, the offender was either unable or unwilling to control his aggressive urges. After this encounter, the offender wandered around the Kings Cross area until about 10:50pm, when he punched Matthew Serrao on the left side of his face. The victim felt pain and suffered some bruising. The attack was entirely unprovoked and the victim had been innocently walking along Roslyn Street toward Darlinghurst Road. After the assault, the victim remonstrated with the offender, demanding an apology. In response the offender swung another punch at the victim, missing him. A person in whose company he was pulled the offender away. Soon after, in Darlinghurst Road near its intersection with Roslyn Street, Rhyse Saliba accidentally bumped into the offender. He apologised immediately but the offender punched him in the face. One of the victim’s companions, Aden Gazi, remonstrated with the offender, and he too was punched on the right side of his face for his trouble. Aden Gazi said, “Really? That’s your best? If you’re going to hit me, at least knock me out”. I take this derision to be bravado on Mr Gazi’s part. (Click here to read more)
Previous convictions of Kieren Loveridge from the judgement
25. The offender has a criminal record as a juvenile. His record is not very long or extensive, and with one exception to which I will return, there are no prior crimes of significant violence. However, it does extend to instances of taking and driving a car without the consent of the owner, damaging property, assaulting an officer and affray. These matters, taken together, lead me to infer that at least to some degree the offender has in the past exhibited an attitude of disregard for the law. He has not always responded to leniency and has required sentences of probation and control orders.
26. Of significance is a previous conviction for an offence of assault occasioning actual bodily harm, committed on 28th January 2011. For various reasons, which I need not go into, the offender was not dealt with in respect of that matter by the Children’s Court until 7th June 2012, one month before the current offending. That previous offence involved the offender gatecrashing a party. The victim was the young host of the party who was attempting to bring the party to an end at 11:45pm. The offender was intoxicated. He threw empty bottles at the victim and punched him in the face. When interviewed by police he made full admissions. He also ascertained the identity of the victim through facebook and left an apology on the victim’s facebook page.
Just based on the above there was always a high chance that Mr Loveridge would have been found guilty of murder. The arresting police officers obviously thought so and I agree. So why did the DPP negotiate a manslaughter charge? Were they just lazy and wanted an easy conviction?
Addressing the lies of former DPP Nicholas Cowdery
I mentioned Mr Cowdery previously above and this is what he went on to say in his article titled “Thomas Kelly: This was never a case of murder” (Click here to read)
“It is not murder because the mental elements of murder cannot be proved – intention to kill, intention to cause grievous bodily harm or recklessness (which requires proof that the offender turned his mind to the possible consequences of his action before he acted) The Crown would rarely be able to prove (especially without any admissions), in a case of an intoxicated and volatile offender, that he had a specific state of mind when he acted.”
Mr Cowdery obviously never read the evidence before he started spreading his lies in the paper article defending his friends at the DPP. There was evidence before the court that Mr Kieren Loveridge said on the night of the murder that “I swear I am going to bash someone tonight” which addresses the requirement of proof required for “intention to kill, intention to cause grievous bodily harm or recklessness”. We all know one punch can be enough to kill and so would have Mr Loveridge known.
And: “So it was unprofessional and unfair of the police to have charged Loveridge with murder.” So Mr Cowdery tells us that it is the polices fault not the DPP.
And “We seek to ensure that the best people for the job are appointed as Judges and the task of judging is given to them.” That is a clear lie and Cowdery knows it. Everyone in the legal profession knows judges are appointed based on their political connections, not because they are the best people.
and “We should trust our judges to do the job for which they are qualified and paid and which they practise daily.” So we should trust the judges but not the police as far as Cowdery is concerned. Cowdery is a compulsive liar who is morally and ethically bankrupt using his position to spread lies to support his mates.
Cowdery only a week ago (8/11/13) was caught out telling more lies on the ABC Fact Check site in relation to the new QLD bikie Laws. (Click here to read) If the best that the judiciary, DPP and AG Greg Smith can do is roll out some lying fool like Cowdery to defend them then they are in a lot of trouble.
Who is Justice Stephen Campbell and is he a suitable to be a judge?
Mr Campbell was appointed a judge of the Supreme Court of NSW on the 2nd May 2012. He was admitted as a solicitor in 1982 and as a Barrister in 1985.
His “practise has embraced all areas of liability work, including industrial and motor accidents, occupier’s liability, double-insurance cases and policywording interpretation.” He became a Senior Counsel 2002.
The highlight of his Swearing In Ceremony which I assume other judges found amusing is that:
“From personal injury cases in the Supreme Court such as representing a former erotic dancer for complications arising from breast enlargement surgery” (Click here to read the full Swearing In Ceremony transcript)
Nowhere there can I see any experience in criminal laws dealing with physical crimes, the closest thing we have is faulty “breast enlargement surgery”. The NSW Supreme Court has two sections, one is the Common Law Division and the other is the Equity Division and judges belong to one or the other. So given the court itself recognises a need for expertise then why do they allow someone with no criminal experience to hear a manslaughter case. Chief Justice Bathurst needs answer that one.
Why did Smith and O’Farrell appoint Campbell as a Judge in the first place?
As soon as the media started putting the blow torch on Justice Campbell’s judgement O’Farrell and Smith were quick off the mark saying what they would do which was in part clearly designed to take the focus off their role in appointing Campbell in the first place.
Smith said he would ask the DPP to appeal which they now have and O’Farrell said they would look at bringing in new laws etc.
Most judicial appointments are not based on merit and are simply jobs for the boys and girls of the political party that appoints them. So why did the Greg Smith and the Barry O’Farrell government appoint Stephen Campbell as judge and on what basis? Who are Campbell’s political connections?
The law is not the problem, you can get up to 25 years jail now for manslaughter. Yes, making it a mandatory sentence of 10 years or more does take the discretion and influence away form the judges but they could give ten years or more now. The problem is the appoint process that allows fools like Campbell to be appointed in the first place.
Premier Barry O’Farrell has form on the board for appointing his mates to judicial roles
In 2006 Robert Cameron who was the secretary for the then NSW Opposition Leader Barry O’Farrell at the Ku-Ring-Gai branch of the Liberal Party was appointed as a Federal Magistrate. The allegation was put directly to Barry O’Farrell in October 2008 that Robert Cameron was appointed to the judiciary after O’Farrell personally phoned the then Attorney-General Phillip Ruddock lobbying him to do so. O’Farrell has never denied this.
The above raises a lot of issues and the DPP say they will appeal the judgement which means there is more to come, so we will keep an eye on it. It is good to see the media work together to attack the failings of the judiciary. I see it as a function of this site to help encourage that as much as possible by reporting what really happens within the Australian judiciary.
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Shane, another very good article by you. People who get themselves intoxicated are doing this to them selves and I view should not get an easy ride then for the consequences of their violence. Thomas Kelly had a right to live and so have our children also and if we condone in any shape or form this kind of deliberate violence we one day may mourn our own children. I would prefer to see a change in appointment of the judiciary which removes the political element in the appointments. Perhaps where we have a system that on recommendation by the legal fraternity 3 names are submitted to the Governor/Governor-General to which the Government can submit its opposition against any candidate, in case there are legal issues relevant to an appointment, and then the Governor/Governor-General decides which one of the 3 candidates is appointed on merits, etc.
Personally I do not see a ‘motive to kill as Kelly was unknown to Lovebridge’, there was a ‘motive to bash’ someone, bash and kill are two different intents. Did the punch kill Kelly or was death caused when Kelly hit his head on the pavement?
I do not see any prima facie evidence that their was an intention to kill.
Manslaughter, I believe was the appropriate conviction.
Unless you were born yesterday, it’s common knowledge a king hit can kill! Until the Justice providers,( e.g. Judges and Politicians) of this country are personally effected and their own family has felt the wrath of violence toward their own families, then and only then will we see a change in how the courts deal out justice…
I agree – “I swear I’m going to bash someone tonight” is not “I swear I’m going to kill someone tonight”
OK, let’s be clear about this. In NSW, intent to harm resulting in death is murder, there need not be any intent to kill. For about ten years in the ACT murder was defined as intent to kill resulting in death. There was NOT ONE CONVICTION for murder as a result because even a guy who stabbed his mother dozens of times could not be proven to have an intent to kill!
That may be open to debate, bobrafto. But even if manslaughter, surely this would be at the most serious level – and the max penalty is…?
The judicial system is not just a joke, it appears to be a conspiracy.
IGW ~ Although I’m of the opinion that the right verdict was handed down, I do not have an informed opinion of the weight of the penalty.
Moderator – rest deleted as off topic of the post
From the moment he touched Thomas he was guilty of whatever the results of that touch were .The results were death he then is a murderer and deserves a long sentence.
And was the sentence appropriate?
Not at all the sentence was an insult it should be much longer
Criminals ALWAYS have compassion for each other. Even if one is a white collar criminal and the other a violent one, they will always stick together and lend a helping hand. Even criminals who hate each other will team up to fend off the justice system. I know this fact first hand. The people who are left high and dry are the real innocent victims… we have no power against them all and no justice.
You say “we have no power against them all and no justice”. Well things are changing and we do have power. It’s called people power. Most people would have never heard of Thomas Kelly if it was not for all the people and media getting behind it.
Anyone who sets out with the intent to bash someone has to know there is a risk of killing them, deliberately or otherwise (slipping over and banging their head etc). A sensible person would have stayed home until they settled themselves down. What happened to the concept of taking personal responsibility for one’s actions?
I have never been in favour of plea bargaining or downgrading charges.
Whether or not there was a motive to kill, a series of violent actions aimed at innocent individuals resulted in the death of an individual within the same time frame. When confronted, would the offender state that he didn’t mean to kill someone, or in his alcohol fueled state of mind did he care if he did kill because he has an aggressive nature. A person died because the offender is aggressive and had a forethought of malice, so murder is the result.
I am not a lawyer nor do I have any expertise in the field but from the information below its appears that you do not require intent to be present to be charged with murder. The information below says:
” Having regard to the provisions of Section 18 and the Common Law, the following matters are required to be established beyond a reasonable doubt to prove murder:-
(i) The death of the deceased;
(ii) An unlawful act of the accused which caused that death;
(iii) Such act was done with:
(a) intent to kill or inflict grievous bodily harm; or
(b) reckless indifference to human life. ”
The important point is (iii) because it says ‘OR’. Therefore intent is not required.
IF THIS IS CORRECT ( please tell me) —then the charge of Murder was correct.
But what I think is the undoing of this charge of murder is point # (ii).
My question is : Was it the “king hit on the head” that caused the death or was it the footpath. The DPP clearly believes it was the footpath but is too embarrassed to say so.
The defence will claim in was the footpath, of course.
The medical examiner may have some sway in this matter, but we are not informed of his opinion on the above. This may be where the answer really lies. Was a post mortem held? By whom,? Any independent assessment post mortem?
I also believe the law is far too vague in this section (ii).
It needs to change with the times and be DEFINITE in what it means.
Surely, having a semantic battle over whether the punch or the footpath caused the death shouldn’t enter into it. A willful act of violence caused the death to occur. Kelly’s head only met the footpath because of Loveridge’s act. I see no reason in law or in morality why Loveridge should not pay the full penalty for his actions and their complete outcome. An intent to inflict GBH had already been stated, and his objective actions on the night met the reckless indifference test easily. I don’t see how this Judge could have seen things in any other way. I see no superior Judicial logic at work that creates a different way of interpreting some pretty straight-forward sentences. I’m still trying to find a benefit in this judgement for someone, because there usually is one somewhere, even if it isn’t always evident at first.
I see this far more cynically. I have the feeling, that lawyers have an absolute interest in keeping criminals, in particular repeat offenders who are, preferably dumb enough to get caught all the time, on the roads, knowing, that they will re-offend. It is a terrific investment for them, their regular income, representing those criminals, assured by legal aid. What a wonderful income source, a lawyer would only need a few regular customers like that to make a fortune. Corrupt judges, who have been during their lawyer years in the same business before, are most likely playing along in getting the creeps back on the roads as soon as possible and in the commission business. It may sounds a bit cynical, but i am sure that this is the game. Any reduction in the crime rate would be bad news for the legal fraternity. A good example how they are fighting tooth and nail to keep the criminal bike gangs, who have plenty of money for them, in business.
We only have civil rights because lawyers have an economic interest in defending them. Just the way it is. On balance, it’s a good thing.
is there a law where judges must have no children, it seems none of them do, young boys and girls murdered by animals and they could not care less. they must have no children themselves to be unable to feel the pain of the loss of children
my father who was a policeman always said with the money that a good lawyer can make why would one become a judge
because they are dopy vermin who could not make any money in a legal practice is the answer i guess
Top shelf Post Shane. Congrats.