Justice Richard Button handed down a decision last Friday (26/3/21) where he said in relation to Capilano Honey executive Ben McKee joking about a female staff member having anal sex with Simon Mulvany there was “no truth to the proposition that Dr McKee ever made a lascivious statement about a junior female employee”. The net effect is that Justice Richard Button has said that Ben McKee making a joke about Simon Mulvany having anal sex with a female staff member at Capilano Honey is fine.
That raises 2 key questions that I want to discuss in this article. Firstly, does Justice Button and/or other judges talk like that at the NSW Supreme Court and secondly does Justice Button’s viewpoint help explain why there is such a low conviction rate for rape and sexual assault?
The recording of Ben McKee making the comments is below so you can hear exactly what was said. In February 2016 Capilano Honey Ltd and Ben McKee instituted injurious falsehood and defamation proceedings against beekeeper Simon Mulvany. In May 2016 Ben McKee was at a meeting with Simon Mulvany to try and conciliate an out of court resolution in relation to the court case. Also at the meeting was a documentary filmmaker Alex who was filming a documentary with Mr Mulvany on the bee industry. For some unexplained reason, Ben McKee thought that was an appropriate forum to joke about Simon Mulvany having anal sex with one of the Capilano female employees.
One has to wonder why Ben McKee would make the comments and why would he make those sorts of comments at a meeting with someone he is suing for defamation. But the real question is why and how did Justice Richard Button decide that it was fine for a company executive to be making those comments.
The judgment Justice Button handed down last Friday was an injurious falsehood and defamation case against me by Capilano Honey and Ben McKee who also sued me after I reported about them suing Simon Mulvany. I wrote about the judgment a few days ago in an article titled “Capilano Honey awarded $25,000 after spending $millions trying to silence journalist Shane Dowling for allegations they sold poisonous and toxic honey”. (Click here to read more)
Justice Button said in paragraph 136 of his judgment:
136. Separately, on the evidence before me, there is no truth to the proposition that Dr McKee ever made a lascivious statement about a junior female employee. (Click here to read the judgment and click here to read schedules A, B and C)
“Lascivious” means: “feeling or revealing an overt sexual interest or desire” synonyms: lecherous · lewd · lustful · goatish · dirty · smutty · filthy · naughty · suggestive · indecent · ribald · debauched · depraved · degenerate · horny · randy
One article I wrote was titled was “Sex Tape Featuring Capilano Honey CEO Ben McKee Covered Up By Directors”. Capilano’s lawyers argued there was no sex tape which I think was splitting hairs as I believe the below video can be described as a sex tape because it is tape and talks about sex. But I am just explaining that to give you the background, as this article is not about debating that, it is about Justice Richard Button and his viewpoints and decision.
What is said verbally and in written format in court is protected from defamation claims by what is known as “absolute privilege”. When a judge hands down a judgement you are also protected from defamation, when you write about it, by the defence that is known as “Fair Report of Proceedings of Public Concern”. The video below has been tendered in court including in the Court of Appeal.
I emailed Ben McKee and his lawyers the below questions today:
From: SHANE DOWLING
Sent: Monday, 29 March 2021 4:10 PM
To: Ben McKee <B.McKee@hivewell.com>; zz_honey <firstname.lastname@example.org>; Richard Keegan <email@example.com>; Monique Cowden <firstname.lastname@example.org>; email@example.com; firstname.lastname@example.org; Kieran Smark <email@example.com>; Martin O’Connor <Martin.OConnor@addisons.com>
Subject: Ben McKee anal sex comment – Media questions for an article
Dear Mr McKee
I have a few questions for an article regarding you and Simon Mulvany in the car in about 2015/2016 as per the video recording.
- Justice Richard Button said in his judgment at paragraph 136: “Separately, on the evidence before me, there is no truth to the proposition that Dr McKee ever made a lascivious statement about a junior female employee.” Do you agree your anal sex comment to Simon Mulvany was not “lascivious”?
- Do you regret making the anal sex with a staff member comment you made in the car to Simon Mulvany?
- Given the current environment would you like to apologise to all women who might be offended for making the comment?
- Do you think it was appropriate for you to have made that comment given you were the CEO at the time?
- Do you think it is appropriate for any employee to make comments like that in the workplace?
- Have you heard of “The Streisand effect”?
Please reply by 7pm tonight so I can publish.
End of email
Ben McKee and his lawyers have not responded.
Justice Lucy McCallum said about the tape at paragraph 60 in a 2018 interlocutory judgment about suppression orders on the matter: “The plaintiffs objected to its admission into evidence on a number of grounds but ultimately acknowledged that, as it was before Hall J on 7 October 2016, it should be before me. I have had regard to the content of that tape” (Click here to read her judgment) They didn’t want in as part of the evidence. I wonder why?
The Court of Appeal said about the tape at paragraphs 11 and 109 when Capilano appealed Justice McCallum’s 2018 interlocutory judgment:
11. The conversation apparently took place in a car whilst Mr McKee was driving. In what appears to have been a vigorous exchange, Mr Mulvany was suggesting that McKee name someone within Capilano with whom he could communicate, “preferably a f**king nice woman”, to which Mr McKee responded:
“Next minute you’ll be in the office, Hi there I’m rooting [X] from accounts. I boned her last night in the arse. See you tomorrow.”
The article on the respondent’s webpage was arguably a misstatement of the content of the crude exchange in the car.
109. “The source of the remarks was correctly characterised by senior counsel for the applicants before the primary judge as “unedifying locker room banter”, not to justify it but to deplore it.” (Click here to read the Court of Appeal judgment)
So even Capilano’s own senior counsel, who was Sandy Dawson SC, described what Ben McKee said on the above tape as “unedifying locker room banter”, not to justify it but to deplore it.” and the Court of Appeal called it a “crude exchange”, but Justice Richard Button said, “there is no truth to the proposition that Dr McKee ever made a lascivious statement about a junior female employee”.
(Capilano lost both the 2018 judgment before Justice McCallum and the Court of Appeal as mentioned above which means I won both of them)
Justice Richard Button has a lot of explaining to do as to why he contradicted Capilano Honey’s and Ben McKee’s own barrister and overruled the unanimous decision of the Court of Appeal. In fact, if you look at Justice Button’s judgment, he doesn’t even reference the Court of Appeal judgment even though I relied on it heavily in my defence and referenced it many times in submissions. I think Justice Button ignored the Court of Appeal judgment because it undermined his pre-determined judgment. (Click here to read the Court of Appeal judgment)
Justice Richard Button’s comments remind me of the infamous Adelaide case:
In August 1992 Mr Justice Bollen of the South Australian Supreme Court notoriously directed a jury hearing a case alleging rape in marriage, on the issue of consent, that a husband could properly try to persuade his wife to have intercourse by ‘a measure of rougher than usual handling’. (Click here to read more)
“Mr Justice Bollen told the jury: ‘There is, of course, nothing wrong with a husband, faced with his wife’s initial refusal to engage in intercourse, in attempting, in an acceptable way, to persuade her to change her mind, and that may involve a measure of rougher than usual handling. (Click here to read more)
Rape and sexual assault convictions are very low – Is it because of judges like Justice Richard Button?
In the current environment, there has been a national conversation going on about the treatment of women but obviously, Justice Button has been oblivious to it. One of the issues that has been raised is the conviction rate for rape and sexual assaults.
The New Daily reported on the 2nd of March 2021:
The Australian Bureau of Statistics (ABS) says there were almost 27,000 sexual assaults reported to police in 2019. ABS data also says only about 13 per cent of sexual assaults are reported to police, which means there was about 207,000 cases in a single year.
That same year, just over 6000 people went to court and 2000 were jailed for violent sexual crimes. That’s two men in prison for every 207 people assaulted. It’s difficult to see how this is justice. (Click here to read more)
One issue that is never mentioned in court statistics is when judges and magistrates knock out a lot of the evidence before trial so the case falls over and never goes to hearing. I raise this because I know numerous Supreme Court judges who are good at knocking out legitimate evidence such as Justice Desmond Fagan, Justice Richard Button and many others so they can hand down pre-determined judgments.
With Justice Button finding that an executive joking about someone having anal sex with a female staff member is fine you have to wonder if judges are part of the problem for such a low conviction rate. And I know from the research I did for my book “Australia’s Paedophile Protection Racket” even if sex offenders are convicted quite often they get very lenient sentences.
I think Ben McKee suing over the tape was a bad move as it proves little and given the current environment about the treatment of women the judgment and Justice Button’s comments have been bad timing, to say the least. It’s worth noting the Streisand effect for Capilano Honey and Ben McKee suing both me and Simon Mulvany.
The Streisand effect
Wikipedia defines the Streisand effect: “The Streisand effect is a social phenomenon that occurs when an attempt to hide, remove, or censor information has the unintended consequence of further publicizing that information, often via the Internet.” It is named after American entertainer Barbra Streisand, whose attempt to suppress the California Coastal Records Project’s photograph of her residence in Malibu, California, taken to document California coastal erosion, inadvertently drew further attention to it in 2003. (Click here to read more)
Does Justice Richard Button talk like that around the female staff at the NSW Supreme Court?
Justice Button needs investigating because he has a lot of questions to answer, and I think there needs to be an investigation of the Supreme Court of NSW. But the bigger issue at this point is that judicial judgements and their failings need to be part of the conversation when discussing society protecting women from sexual assaults and harassment.
I have not finished dissecting Justice Button’s judgment as there are more scandalous elements to it. But my advice to the government is if they want to help rectify some of the issues facing women they need to look at the courts and the judges and fix the problems there that undermine women’s rights and their protection. E.g. Justice Richard Button of the Supreme Court of NSW.
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