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[This edited version of the article has been prepared by Dr Robert N Moles]

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Justinian 15 May 2006 – Evan Whitton – “The ostrich instruction”

The jury is instructed about Kenny Boy Lay’s “ostrich” defence in the Enron fraud case. It’s a pity that OK Cole can’t instruct himself about the “deliberate ignorance” employed by government ministers to defend themselves in the AWB bribes inquiry.

Law Firm Malady

Partner Paranoia: Fear of answering interoffice phone calls and venturing into hallways, rest rooms, elevators, and other places where partners lurk.

Explaining the Inexplicable: The Rodent’s Guide to Lawyers by An Attorney (Pocket Books, 1995).

What can this possibly mean? It’s on the Lawyers desk calendar for May 10.

Certain politicians and bureaucrats claim they lived for years in blissful ignorance that a major Australian organisation was paying large bribes to a blood-drenched dictator. They will have felt a tiny stab of fear if they saw an item on p. 24 of the SMH of Friday, May 12. The head was:

“Enron judge allows an ‘ostrich’ verdict.”

The Wall Street Journal’s law blog also had some news about the “ostrich” defence.

The reports said Houston judge Simeon T. Lake the Third had decided to instruct jurors that they could convict Kenny Boy Lay of fraud if they believed he had pursued a policy of “deliberate ignorance” of what was going on.

The instruction has been defined thus: “An ostrich instruction is appropriate if the defendant ‘claims a lack of guilty knowledge and there are facts and evidence that support an inference of deliberate ignorance’.” Chief Judge Richard Posner, of the Chicago-based Seventh Circuit Court of Appeals, appears to have invented the instruction in 1990.

Medill News reported on March 15 that Chief Judge Posner “used ostriches in an opinion to clarify the difference between a drug defendant who was just careless and one who should have known a crime was taking place”. He wrote:

“They do not just fail to follow through on their suspicions of bad things; they are not merely careless birds. They bury their heads in the sand so that they will not see or hear bad things. They deliberately avoid acquiring unpleasant knowledge.”

The instruction can be a killer because jurors can relate to it. Law professor Leonard Cavise told Medill News: “Where someone says: ‘don’t tell me; I don’t want to know’, I think that’s a situation everyone has been in at some point.”

Is there evidence to support an inference that any number of people, including the Prime Minister, the Deputy Prime Minister, and the Foreign Minister, had succumbed to deliberate ignorance of bribery?

Happily, O.K. Cole’s terms of reference do not let him give himself an ostrich instruction, at least for the ministers.

The dangerously candid Justice (as he later became) Ollie W. Holmes Jnr said law is nothing more than predicting what judges will do. Now former Commonwealth public servant Allan Behm has made a prediction about what O.K. will find. He wrote in the SMH of Friday, May 11:

“On whether ministers knew about the kickbacks paid to Saddam Hussein’s regime, Terence Cole will answer in the negative.”

As a onetime general manager of the AG’s legal practice, Mr Behm no doubt has a sense of these things, but since O.K.’s terms do not allow him to say anything nasty about Jackie et al, it would be curious if he felt able to say something nice. To do so would put him at risk of the ridicule which enveloped Justice Harry Gibbs when he found that Queensland police chief F. Erich Bischof had resisted the temptation to extort bribes from working girls.

The Manuel Mantra, “a fair go all round”, is a useful definition of justice, particularly as between boss and worker. The mantra derives from NSW Conciliation Commissioner Gilbert Samuel Manuel, a former Broken Hill boilermaker, and was enshrined in Section 170CA of the Workplace Relations Act (1996). The section says the expression “was used by Sheldon J in In re Loty and Holloway v Australian Workers’ (1971)”, but the drafters misled themselves. What Justice W.S. Sheldon, of the NSW Industrial Commission, actually said was:

“Mr Commissioner Manuel in a recent [unfair dismissal] case put it in a nutshell and in language readily understood in the industrial world when he conceived his duty to be to ensure ‘a fair go all round’.”

The mantra was presumably in the Act because Jackie did not have control of the Senate. To get the Bill through, the ever-lovely Peter Reith had to negotiate with the leader of the Democrats, Cheryl Kernot.

The mask is now off. Workers can get the bullet for no better reason than that the boss doesn’t like their jolie bleu yeux.

The unfair go all round legislation is being tested in Gar’s monstrosity. Murray (Ole Stoneface) Gleeson’s chaps cannot be

sacked even if they don’t do their job properly, and their names have a prefix: Justice.

Will they tell Jackie that justice means what Gilbert Manuel said it means?

Why do I somehow doubt it?

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