OUTRAGEOUS! 16 year old beaten repeatedly with metal baton and nearly to death only gets $50k compo! Sound ridiculous? Well, it would be if we’d reported the Joshua Fox case in as unbalanced a manner as the overwhelming majority of the press did last week.
Sadly, the NSW District Court doesn’t make its decisions available online, but from what we’ve read in the press, we reckon the judge has got this one right – although our feathered friend at 2GB didn’t agree with us, to absolutely nobody’s surprise.
He had plenty of pals in the media.
What the judge said
Unfortunately, that’s not entirely clear to us yet. We’re still waiting on our copy of the decision, but will give it a thorough going over when we receive it.
From what we’ve learned in the morsels of the judgment that the press has thrown our way, the then-16 year old was as full as a footy final, hiding in the laundry when he was found by the publican, beaten around the head by some sort of metal baton, and was incapacitated for some time.
The judge found that the publican had a right to defend his person and property but had used excessive force and therefore the young ‘un was entitled to damages.
Apparently the judge reduced the damages payout to take account of the fact that the young boozer shouldn’t have broken into the premises in the first place.
“The plaintiff was intoxicated, argumentative and so on and that he had created a situation in which the use of force to expel him was a natural and lawful consequence of his own misbehaviour,” Judge McGuire said.
“However, the degree of force used was in the end unlawful and not the necessary consequence of his own condition and behaviour.”
Put simply, the law is and always has been that residents don’t have carte blanche to beat up on an intruder. Reasonable enough rationale, one feels.
The media report card
We did our best to look at most of the major Sydney (and national) news outlets on this issue, and it’s safe to say that the vast majority did not cover themselves in glory on this one.
The great disappointment is that the more pernicious coverage was so obviously skewed that it didn’t present the judgment fairly and therefore once again erodes confidence in the judicial system – damage that was entirely unwarranted in this case, in our view.
Here is our assessment of the main players.
Go straight to the head of the class. One of the few media commentators who can hold his head high on this issue.
2UE’s drive host got in early, with a lengthy editorial on the afternoon that the judgment was handed down.
He pointed out all the facts of the case, correctly predicted “the usual tabloid shock horror” and treated his listeners to a couple of nice little impersonations of “the usual media drama queens [who] will pick it up again tomorrow, squawking and hopping up and down in their cages about how the judge got it wrong”.
He consistently pointed out that the kid was in the wrong in being where he was, Fox was “young drunk and stupid”, Carlton didn’t like the fact that Fox was pocketing $50k, but none of that excused the defendant’s over-the-top response.
Carlton read out a few key passages from the judgment, notably:
“Joshua Fox… was sitting in the laundry and was not doing anything which could be interpreted as resistance or aggression…”
Not surprisingly, Carlton had the majority of his talkback callers on-side, having fully explained the judgment.
The few who disagreed were patiently persuaded that they should consider the excessive response of the defendant.
Crullers has a lot of time for Pricey and genuinely – perhaps extremely naively – believed Pricey was above the tabloid squawking of his avian predecessor in the 2UE breakfast shift, but will never make that mistake again.
To his credit, he gladly tolerated opposing views, but rarely gave the key issue – the fact that the defendant’s response was not “reasonable force” – the consideration it deserved.
His two favourite callers got to express their contrary views straight after the 6am news.
PRICEY: Neal in Redfern, hello.
NFR: Steve, if I wanted to listen to the reactionary tabloid journalism that you’ve been espousing this morning, I’d be listening to 2GB.
PRICEY: What are you on about?
NFR: The Joshua Fox case.
PRICEY: Yep. Try and justify giving Joshua Fox’s mother $18,000 because she’s got a nightmare.
NFR: Steve, can I just read you please, two sentences that the judge said, just very quickly.
PRICEY: If you must
NFR: “The plaintiff was intoxicated, argumentative and so on and he had created a situation in which the use of force to expel him was a natural and lawful consequence of his own misbehaviour.” Now, you and I agree on that, I think. “However, the degree of force used was in the end unlawful and not the necessary consequence of his own condition and behaviour.” So to put it simply Steve, what the judge is saying is that the property owner has the right to defend his property, this guy went way over the top and therefore the plaintiff was entitled…
PRICEY: That’s what the judge thinks! It’s an opinion. I happen to disagree with it. If you are, in the dead of night, in your house, and you hear somebody jump over the fence, and you approach that person and you can smell grog on your breath, and you don’t know what they’re going to do to you, you’re telling me that you suddenly have a conference with them, do you, and ask them what they intend to do?
NFR: What I am saying Steve is that the property owner doesn’t have carte blanche to do whatever he likes to the person who has trespassed his property.
PRICEY: I reckon he does.
NFR: Well, well…
PRICEY: I mean, you obviously live in a very safe and protected and closeted environment. No-one’s ever probably broken into your house, have they?
NFR: Yeah, I’ve been broken into before, I’ve had my place in Newtown broken into.
PRICEY: Yeah, not while you’re there?
PRICEY: And if you were in bed, and someone came crashing through the front door, what are you gonna do? Get up and have a discussion with them about whether they should be there or not? Or are you going to pick up a piece of wood and do what you need to do to protect yourself?
NFR: Look, I’d pull a golf club out of the bag and I’d be quite prepared to use it. But I wouldn’t, I wouldn’t beat the kid to a pulp so that he spends three months in hospital. This kid required surgery Steve. I mean, you can’t, as I said…
PRICEY: If he wasn’t drunk and hadn’t jumped the fence he wouldn’t have required surgery, wouldn’t have been in court and none of us would be having this discussion.
Straight after that logical, reasoned caller came this sycophantic little snot.
PRICEY: Anthony in Chippendale, hello.
AFC: Steve, if you should be on 2GB, then attitudes like Neal from Redfern’s, they can go to the ABC and put that do-gooder leftie stuff on the air.
AFC: Firstly, you can take his mother’s claim and just flush that entirely down the… She got 20 grand nearly for having nightmares. Well…
PRICEY: I had a woman call me half an hour ago, only got 8 after she was held up with a knife.
AFC: Steve, the bottom line in these sorts of cases is if she wants to avoid nightmares, one, look after her 16 year old son who happens to be out and about drunk. You know, I mean, where’s she while her 16 year old is running about the bloody town drunk? Oh, look, it just does not make any sense, Steve.
PRICEY: It does not, it is beyond belief.
What a suck job effort from AFC.
The television news
Crullers caught the news on the three commercial networks and the ABC, and would have to concede that the commercials weren’t that as bad as they could have been.
While the news reports generally conveyed an overwhelming sense of bewilderment at the decisions, they at least reported – as they should do – the judge’s key comments.
At least this would give the discerning viewer some sense of the pertinent facts that led to the judge’s decision.
Channel 9, for instance, trotted out:
“…this assault involved excessive force which was not necessary for his own defence, the protection of his family or the hotel.”
Over on Aunty, ABC’s Sydney news chose not to report the case.
An interesting programming choice, but not really that surprising – the court’s decision was only remarkable if you chose to ignore the facts and beat it up as the commercials did.
Not surprisingly, the 7:30 Report also deemed it not worthy of coverage.
That bastion of intelligent, broadsheet current affairs discussion, A Current Affair, got off to a great start as Mike Munroe introduced the story. The trusty old “first casualty of war” was struck down in Mike’s very first sentence:
“But first, the most basic right – to defend ourselves and our families inside our own homes – was thrown into doubt after a controversial court ruling…”
No it wasn’t!
There is no doubt at all about it – we still have every right to defend ourselves and our families in our own homes.
What we can’t do is exceed the boundaries of reasonable force.
The team at ACA left it to that beacon of fair reporting, Jane Hansen, to paint the picture.
“Gerry Newton has lost his job, his home of 11 years and emptied out his life savings. How? Well he says he simply defended his home and his family from an intruder.”
Cue violin strings, preferably in a suitably morose minor key, please.
Ahhhh, if only the late TV repairman Benny Mendoza received such a sympathetic hearing, Jane.
Here’s how Salvation Jane reported the incident:
HANSEN: It was the night of April 23 back in 1999. 16 year old Joshua Fox, drunk and under age, had been turned away from the Peakhurst Inn. But that didn’t deter him. He scaled this wall to the roof. Gerry, the licensee, was watching the television in their rooftop residence.
GERRY NEWTON: I though I heard a rustle in the bushes outside. [Cue re-enactment scene] Did you hear that, Ann?
ANN NEWTON: No. You better go and check outside.
JH: Gerry checked the kids, and went outside to check the rooftop terrace.
GN: I was gonna go down the back fire escape stairs, but I could hear Ann inside the kitchen behind the roller shutters calling out, a little bit panicky, so I thought, oh, I’ll come back and put her mind at rest. [GN explaining to JH in the laundry] It was all dark in here, somebody jumped out, hit me here [points to stomach, bounces off adjacent wall], we collided with the wall and then we fell straight back inside the laundry.
JH: A fight ensued, and Joshua Fox suffered a fractured forehead and eye socket in the battle.
JOSHUA FOX: [Being followed down the street by a gaggle of station logo-embossed microphone wielding hacks] I’ve got two metal plates in my head if you care to listen.
JH:[Back at poor Gerry’s place] In hindsight, do you think you hit him too hard?
GN: I don’t think I hit him too hard. I think I hit him hard enough so that I’m alive…
– Ends –
Oh, come on, spare us please, Jane!
How do you explain the metal plates in Fox’s noggin, the repeated trips to the operating ward, and the judge’s comment that “Joshua Fox… was sitting in the laundry and was not doing anything which could be interpreted as resistance or aggression…”?
And why has Newton lost his job and won’t be indemnified by the pub’s insurance company? Perhaps ACA could have spent a bit of time investigating these issues rather than swallowing the defendant’s line without question.
We can’t wait to get our hands on the judgment and see how the evidence tendered in court stacks up against ACA’s lopsided account.
It will make for interesting reading.
The only comments we can make in ACA’s favour were that they at least noted that the judge “concluded that he [Newton] had exceeded the bounds of justifiable conduct” and they had Rob Davis from the Plaintiff Lawyer’s Association on to explain the rationale behind the trespasser’s right to sue in the circumstances.
Which is more than we can say for the tripe served up on ACA’s rival (and we’re not talking about the SBS World News)…
The easy-going Crullers doesn’t too often get fired up about the garbage shown on the idiot box, but he sat through Today Tonight and was, to quote the great Ed Anger from the Weekly World News, “pig-biting mad” at the shoddy “journalism” they put forward.
Crullers was actually thinking this was some sort of spoof, it was so far removed from reality.
There was absolutely no effort at balance – the report did not mention one skerrick of the judge’s rationale for awarding the payout and instead spent its time painting the plaintiff as a drunken hoon (which he most probably was and still is) who got the beating that he thoroughly deserved (which he most probably did not).
This was deplorable reporting.
The Tele took the predictable tabloid line, although provided a quaint angle by suggesting what numerous charities could do with $50,000 if that hideous drunken lout followed their free advice and donated the money to a worthy cause.
The Sydney Morning Herald did a fair job of reporting the facts, albeit still with an over-riding sense of disbelief at the decision, but as with the ABC, the Herald didn’t seem to rate this as much of a yarn, shunting it to fifth place on their website’s list of “National” articles.
The NSW state opposition
And finally, to the leader of the opposition in NSW.
I speak of course of The Parrot.
Crullers, a Pricey acolyte, gives the Parrot’s show a wide berth, but after Pricey had sufficiently shitted me off for two and a half hours, I did switch for a few minutes to the dark side before turning off the radio altogether.
The Parrot’s stance and the opinions of his audience, from the limited grabs I heard, were as predictable as they were ill-informed.
If you really must, check out the Parrot’s “Today Show” editorial from Friday on the 2GB website.
As for the other elements of the NSW opposition, if the following is the quality of comment from the Opposition as reported by AAP, Lord help them at the next election:
“NSW Opposition justice spokesman Chris Hartcher said the judgment sent the wrong message.
“No legal system can tolerate situations where criminals are allowed to use the law for their own profit,” he said.
“The legal system must stand behind the home owner, not the burglar.”
– Ends –
Well, yes, it should, but the home owner still isn’t entitled to beat the burglar to a pulp. Apparently this kid was close to death as a result of the injuries he sustained.
John Boy Brogden hasn’t impressed Crullers much to date and the comments he made on the case reek of political opportunism, even though they will appeal to a certain element of the electorate. John Boy bandied about such populist clap trap as “world gone mad”, called it a “ridiculous situation” and said some rubbish about it placing unreasonable pressure on business”.
Sadly, this will be the overwhelming majority view on this issue.