Joint Criminal Enterprise and the movie Burn by Legal Aid NSW

http://www.burn-movie.com.au/

For some years I’ve been using the movie Burn, a movie production commissioned by Legal Aid NSW, in my Legal Interpreting class at Western Sydney University. It has proven to be an invaluable aid in helping students understand the arrest process from a suspect’s point of view, from the initial police arrest to the final charging of an offense.

Legal Aid NSW originally produced the movie to highlight the need for young people to not be mixed up in the wrong crowd, because bad associates can easily get you into legal hot waters through what’s called Joint Criminal Enterprise (JCE).

Since I don’t specifically talk about JCE when I use the movie in my class, I thought I’d talk about it here and send this link to my students so they can read about JCE, that way I also honor the original purpose of this movie as intended by its producers.

Joint Criminal Enterprise, (‘enterprise’ in the sense of an endeavour), is where a group of people explicitly or implicitly agree to jointly engage in a criminal activity, and it’s reasonably foreseeable that some outcome may occur during the commission of that offence. All members of the JCE can be charged with the same offence even if a member did not physically carry out a particular act (in the movie, Tee did not stab the victim, but he was charged with murder just the same).

For example, 4 people decide to gang up on a victim to beat him up. During the beating, someone kicked the victim in the head causing his head to hit the hard floor. Bleeding in the brain followed, then soon after the victim died.

When arrested, all 4 suspects denied kicking the victim in the head, all said that they punched the victim in the arm and shoulder only, avoiding all vital organs, blah blah...😝  You can see that it then becomes almost impossible for the prosecution to prove, beyond reasonable doubt, that the fatal kick came from one particular person.  If there was no doctrine of JCE, it would mean that all 4 suspects would probably walk free.

Therefore, one way that the legal doctrine of JCE works is to prevent people who commit a crime in a group from trying to blame other group members so as to generate reasonable doubt for themselves.

If a person realises that his friends are about to rob someone or beat someone up, this person decisively walks away and says “I want to be no part of this!”  then the person will not be considered part of the JCE.  If he stood by and did nothing while others went off to commit the crime, that would be okay too.  However, as soon as the person becomes aware that a crime is about to occur, and that person *knowingly* takes action to join in (e.g. help out somehow, like go and look for a stick to give it to another group member or something), the person then runs the risk of being considered as part of the JCE.  

The argument for having JCE is firstly, in the case of my example of a fatal kick to the head, the prosecution will likely not be able to prove beyond reasonable doubt that it was Member #4 and not Members #1-3 that was responsible for the fatal kick.  With JCE, the prosecution need not prove beyond reasonable doubt which particular group member was responsible for which specific kick.

Secondly, from a moral culpability point of view, if a person at the critical point in time of when a crime is about to go down says “I want no part of this” and walks away, the other members may decide not to go ahead with the criminal activity. Likewise, the other members might be making up their mind about whether to commit a crime or not, and when they see you jumping in to help, this may firm up their determination to put their criminal desire into action.

So the morale of Burn is to walk away immediately when you realise your friends are up to no good. Don’t be afraid that your friends might be offended by you leaving, because the alternative is possibly you facing criminal liability for their criminal act, and nobody wants that!

Disclaimer: I'm not a lawyer, this is just my own babble and should in no way be considered legal advice. Do not get legal advice from some random blog 😅!

© 2022 Kenny Wang, PhD
Certified Specialist Legal Interpreter (English <> Mandarin)
Lecturer in Interpreting and Translation at Western Sydney University

I got a mention in the AUSIT newsletter for passing the CSLI test!

The Australia Institution of Translators and Interpreters (AUSIT) sent out the May newsletter this morning, and I got a mention!

They included a congratulatory message to the two AUSIT members who were among the first cohort that passed the Certified Specialist Legal Interpreter (CSLI): me and Silvia Martinez. 🎉🎉

Silvia Martinez and I are both alumni of the Interpreting and Translation program at Western Sydney University 😃😃

Silvia worked as a tutor for the Spanish interpreting stream at Western Sydney University for a couple of years, I had the privilege of working alongside her as colleagues. She now runs her own Interpreting and Translation agency, she does a lot of legal interpreting work and conference interpreting jobs, among others!  We still bump into each other at courts sometimes 🙌

© 2022 Kenny Wang, PhD
Certified Specialist Legal Interpreter (English <> Mandarin)
Lecturer in Interpreting and Translation at Western Sydney University

illegal vs. unlawful (vs. banned, illicit, proscribed...) What's the difference?

 

How many words are there in English to describe something that is disallowed by law???

You know how urban legend has it that Eskimos have something like 20+ words for snow❄️❄️❄️... Well, I reckon we have a similar situation when it comes to words in English that describe something as being disallowed by law.

So exactly how many word are there in English, seeing that the notion of "rule of law" is so central to the English-speaking common law sphere?  Although I don't have the answer to that question, I thought I'd share with you the following synonyms and how I have worked out over the years they differ in meaning and usage:

1. illegal
2. unlawful
3. illicit
4. illegitimate
5. outlawed
6. banned
7. proscribed

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If you look up these words in a bilingual dictionary (e.g. English-Chinese dictionaries), there's a very good chance that the dictionary will simply tell you that they all mean "disallowed by law" (e.g. 违法的 in Chinese). If that's the case, the dictionary isn't of much help to you in working out how they differ in meaning and usage.

If you look them up in monolingual dictionaries though, i.e. English-English dictionaries, you'll likely get definitions that are more nuanced, thereby offering you more insights into how they are to be differentiated.

 

illegal - forbidden by law

unlawful - not permitted by law

These two terms are probably closest among the 7 to being exact synonyms to each other, in most cases they are interchangeable. However, there are still nuanced semantic differences.

illegal is when something is expressly forbidden by law, whereas unlawful is when something is not authorised or permitted by law.

And that's why both murder and manslaughter are described in criminal law textbooks as being "unlawful killings".  Interestingly, the expression unlawful killing necessarily implies that there would be circumstances in which killings would be lawful (!)   Yes, that's right.  They include things like a death-penalty states executing a prisoner on death row, or where killing occurs during war time where all international laws on rules of engagement, etc. are properly adhered to.

My Black's Law Dictionary (6th edition) also offers unlawful in terms of "without excuse or justification".

Expressions with other collocates such as "unlawful discrimination" also help us to see this shade of meaning; it means that certain forms of discrimination are actually okay (and lawful!).  For example, a job advertisement of a women's lingerie store for a sales assistant can openly state that only female applicants should apply, as the circumstances are such that discrimination against men in this case is considered justified.

In contract law, contracts over illegal acts are invalid (e.g. contracting a hit man to kill a rival... if the hit man takes your money and changes his mind, you cannot sue him for breach of contract, because the contract is invalid to begin with).  If however the contract is over something such as ghostwriting in academia (research A writes a paper for researcher B for a fee), which isn't necessarily illegal (actively forbidden by law where breaches would attract legal sanctions) but it may be considered contrary to public policy and therefore not a lawful consideration (not permitted by law) to sustain the contract's validity. (This nuanced difference is given by English-Chinese Dictionary of Anglo-American Law 《元照英美法词典》)

illicit - forbidden by law, morals or accepted norms.

Illicit is seldom used nowadays, at least I don't see it used much at all.  My intuition of illicit is that rather than "disallowed by law", this term has evolved to carry more of a moral condemnation than strictly about something that is in breach of the law.

The two collocates that I've ever seen with illicit are illicit drugs and illicit sex.

The English word drug is ambiguous between medicinal (desirable) and addictive (undesirable). The adjective illicit helps to qualify and narrow the meaning of it to refer to the undesirable type (which in many jurisdictions also happen to be disallowed by law).  Likewise, illicit sex carries with more or a moral condemnation than any reference to the act being somehow criminal.

 

illegitimate - not in accordance with what is accepted, not justified.

Although illegitimate in the context of "an illegitimate child" had legal implications in the olden days, the term illegitimate or illegitimacy these days don't usually carry the sense of "not legally authorised" anymore.  In the olden days, a child born out of wedlock (thus illegitimate) could potentially have legal ramifications in terms of succession law and the person's capacity and right to inheritance. However those laws (at least in Australia) have been done away with for quite a long time now.

These days, when people talk about something being legitimate (or colloquially, whether something is 'legit'), they mean whether something is genuine and justified. For example, being COVID-postive is a legitimate reason for not going to work, whereas wanting to sleep in on Monday morning isn't.

 

outlawed - being made illegal, banned by law.

The word outlawed focuses on the fact that a item or an practice is/was specifically made illegal, rather than the current status of the item or the practice being illegal. Thus the word "outlawed" is often mentioned in the same breath as the legal authority that caused it to become illegal (e.g. Tear gas has been outlawed as a method of warfare on the battlefield by almost every country in the world.)

banned - being disallowed by law or other rules.

The word banned is often used in the sense of outlawed, but it can also be used in the connection with disallowed by something other than law, such as being banned by a sports governing body e.g. Australian swimmer Shayna Jack has been banned for two years for a doping violation.

proscribed - banned, forbidden, disallowed

The word proscribed has come come up in media reports of late in the context of proscribed groups or designated terrorist organisations which the law forbids. I get the sense that "proscribed" is like "banned", except that "proscribed" is of a much higher register, it is much more formal than "banned".

 

© 2022 Kenny Wang, PhD
Certified Specialist Legal Interpreter (English <> Mandarin)
Lecturer in Interpreting and Translation at Western Sydney University

Click here to read this post in Chinese: illegal vs. unlawful vs. banned...“违法”的近义词分析❄️

The expression "I put it to you that..." during cross-examination (and police interviews)

Legal Interpreting students in Australia and New Zealand (and I'm sure in other common law jurisdictions) often come across the expression "I put it to you that..." when they go to court to observe the court in action.

What does this expression mean? 

How should one interpret this English expression into their LOTE (language other than English)?

 

This is a very intriguing expression😅, and you don't really come across it anywhere else outside of the legal context. A similar expression often used by police in conducing police interviews is that the police officer would say to a suspect "I suggest to you that...".

Lawyers (prosecutors and defence solicitors/barristers alike) when cross-examining a witness will often say to the witness "I put it to you that...". The ensuing "..." would usually be a version of the incident, a proposition, or an allegation of some sort, and the specific proposition being put by the lawyer to the witness would differ from that which was being advanced by the witness.

The lawyer may say to the witness something like:

"I put it to you that you only saw someone whose height was similar to my client, but you didn't actually see that person's face, therefore it was not possible for you to say with any degree of certainty that the person you saw was my client. What do you say to that?"

To work out how to interpret this expression into LOTE, one needs to firstly understand what the expression means and why lawyers would use this expression in cross-examinations. I would say that even seasoned court interpreters may not know the origin of this expression. Knowing the origin of this expression will help you to understand what it means, and to help you work out how to interpret it into your LOTE.  

It's story time! 😜😜

 

What is the origin of "I put it to you that..."

The origin of this formulaic expression I believe can be traced back to the English House of Lords judgment in the matter of Browne v. Dunn (1893) 6 R. 67, H.L.. which then gave rise to what is known as the Browne and Dunn rule for cross-examination. The entry in Wikipedia describes it as "an anti-ambush rule". It is an important rule for procedural fairness.

What is the Browne and Dunn rule? It's best explained by giving an example.

An eyewitness Mary, gives evidence in court that she saw a robber holding a knife, and she alleges that the robber was Peter, the accused person, now sitting in the dock.

Peter's barrister does not believe Mary saw the robber's face clearly on the day of the incident, so Mary could not have identified Peter as the robber, because the barrister somehow found out that Mary wore glasses, and yet Mary wasn't wearing glasses on the day the robbery occurred.

So at the closing address to the jury, the barrister plans to invite the jury to reject Mary's evidence.  The barrister wants to say to the jury that Mary chose not to wear her glasses that day, probably for cosmetic reasons, and so her identification of Peter as the robber cannot be trusted as reliable.

But what the barrister doesn't know is that Mary actually had undergone a vision correction surgery 6 months before the incident, that's why even though she used to wear glasses, she no longer needed them! So on the day of the incident, Mary and her 20/20 vision in fact had a perfect look at the robber, she was certain it was Peter.

Now, if the barrister wants to invite the jury to reject Mary's evidence because the barrister claims that Mary could not see properly without her glasses, then barrister must firstly put that proposition to Mary while Mary was on the witness stand, something like this:

"I put it to you that you could not have seen the face of the robber clearly because you weren't wearing your glasses. What do you say to that?"

Once this proposition (or suggestion) is put to Mary, Mary will then have an opportunity to respond to the proposition. Mary could seize this opportunity to explain to the jury about her vision correction surgery, and consequently she had no problem seeing the face of the robber, and that her identification of Peter as the robber was therefore credible.

But if the barrister had never put this proposition to Mary while she was on the witness stand, and the barrister had waited until Mary finished giving evidence, until Mary was no longer on the witness stand, before suddenly springing this proposition on the jury, well that would be unfair to Mary. Because by then Mary was no longer on the witness stand, she would have never been given an opportunity to defend herself, and so in that sense Mary and the side for which she was giving evidence would have been "ambushed" by the barrister.

So, the Browne and Dunn rule is a safeguard to procedural fairness, to be fair to the witness.   An allegation should firstly be "put" to the witness to allow him/her an opportunity to accept or deny the allegation.  Without first giving the witness an opportunity during cross-examination to provide a response to a particular point (i.e. without putting a particular suggestion to the witness), a lawyer will not be allowed to later on ask the judge or the jury to consider that particular point or proposition.

Likewise, towards the latter part of the police interview, the police will present what the police believe really happened to the suspect, often in the form of "I suggest to you that...", to allow the suspect to comment on such a suggestion.  The suspect may admit to the suggestion, or they may deny it (and perhaps in the course of denying it the suspect may end up giving more conflicting and inconsistent details!). Whatever the suspect choses to do (admit, deny, remain silent), at the very least s/he has been offered an opportunity to respond to the suggestion.

The Browne and Dunn rule is about being fair: being fair to the suspect, the witness and the accused person. 👍👍💥💥

Having read the example of Mary the witness above, if you now read the excerpt below taken from the judgment of Browne v Dunn (1893), I'm sure it'll make a lot of sense, and you also get to see the origin of the expression "I put it to you that...":

Justice Herschell wrote in the judgement:

"it seems ... absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case; but is essential to fair play and fair dealing with witnesses."

(The Browne v Dunn rule is an important common law rule, so much so that someone actually spent the time and expense to set up a dedicated website http://brownevdunn.com to host the full judgement of Browne v Dunn for the benefit of lawyers and law students!)

 

What does "I put it to you that..." mean?

So "I put it to you that..." and "I suggest to you that..." essentially are used to present a proposition to a witness (or to a suspect) to allow them an opportunity to respond to the proposition.

Can lawyers put any and all propositions to a witness?  My understanding is No, there are constraints to what a lawyer can put to the witness. A lawyer should have some good faith basis for putting forth a proposition.  So things like "I put it to you that your pet bird ate your homework" or some other absurd proposition that lacks any basis whatsoever should not be put to a witness.

In addition to the expression "I put it to you that...", we often hear lawyers challenging an account advanced by a witness by prefacing their challenge to the witness with a similar expression: "I think what really happened was that...", to indicate that (a) the lawyer disagrees with the witness' account, and that (b) the lawyer presents an alternative proposition to the witness for his/her response.

I hope this post helps legal interpreting students to understand the origin and meaning of this formulaic expression, and the closer examination of this expression above offers legal interpreting students some ideas about rendering it into your LOTE.

~~~2024.06.14 update~~~ 

A good example of a Browne v Dunn error in the news is the trial of Greg Lynn. Click here, here, and here to read about this trial. 

Scroll down to the subheading “Prosecutor breached “basic rule of fairness”: Judge" in the article. There, you'll see that the judge in giving directions to the jury basically chastised the prosecutor for having made Browne v Dunn errors. The judge said that when the accused Mr Greg Lynn took the stand, the prosecutor had breached the “basic rule of fairness” by not putting to Mr Lynn, during cross examination, the suggestion that the former pilot covered up the campers’ deaths because he believed he had murdered them. “Had [the prosecutor] asked Mr Lynn these questions [while Mr Lynn was on the witness stand], put these propositions to him, Mr Lynn may well have been able to respond in a powerful and convincing way,” the judge said.

“Therefore you must take into account that Mr Lynn was not given the opportunity by the prosecutor to respond to the imputation ... because of this breach of the basic rules of fairness, you may more readily reject the prosecution arguments and the inferences the prosecution wants you to draw.”

© 2022 Kenny Wang, PhD
Certified Specialist Legal Interpreter (English <> Mandarin)
Lecturer in Interpreting and Translation at Western Sydney University

 

Click here to read this post in Chinese: 律师交叉诘问证人时说 "I put it to you that..." 中文怎么翻？