Criminal law in context: Attitudes and Penalties to Criminal Law in Western Australia

CRIMINAL LAW IN CONTEXT – ATTITUDES AND PENALTIES TO CRIMINAL LAW

In recent times, there has been a focus on the opinion that penalties for criminal offenders in Western Australia have become 'soft'. To better examine the validity of this view, firstly, a definition of penalties and offences is required. Penalties is defined by the Maquarie Dictionary, as a punishment imposed or incurred for a violation of law or rule1, while an offence means an offence against a law of Western Australia, the Commonwealth, another State or a Territory, as set out in the Western Australian Criminal Code Act Compilation Act of 1913. Secondly, a comparison of the attitudes and penalties of 19th Century England as opposed to modern Western Australia (“WA”) is of assistance. Although there is a considerable difference between the attitudes and penalties of 19th century criminal law in England to those of today in WA, the context of each society must be taken into account. The laws, rules, and societal expectations, including culture and the importance of economic status, are considerably different between each society, and thus reflect the differences in attitudes towards, and punishment for, breaking the law. For example, the tolerance of petty crimes is far lower in 19th Century England than it is today. Accordingly, punishments for crimes in general were stricter; such as the frequency of use of capital punishment for a range of crimes in the beginning of that era. In order to explore the view that the current Western Australian penalties for offenders are 'soft', one must examine the effects that capital punishment had historically on society, along with the recent changes to mandatory sentencing and homicide laws.2 The greater focus on the rehabilitation of the individual in modern times can be compared and contrasted with the need to satisfy the community's need for protection. It could be argued that the changing view of the purpose of punishment has resulted in a greater flexibility in the choice of sentencing for judges, which can be interpreted as that penalties for crimes are getting 'soft'. Examining the types of offences, the types of punishments, and the criminal court system as a whole, with respect to both 19th century England and 21st Century Western Australia, can assist in determining whether the current media opinion of 'soft' penalties in WA is one that has been made accurately.

SUMMARY CRIMES
A summary offence, as defined by the Western Australian Criminal Code (“the Code”)3, is an offence that is tried otherwise than on indictment. Summary crimes are usually tried in Magistrates courts and (can) result in less severe penalties than those on indictment (such as a fine as opposed to a term of imprisonment). One prominent contemporary example of the changes over time in regards to the attitudes and penalties for summary crimes, is that of a young boy given household chores for punishment for being convicted of a graffitti offence, 4 as opposed to community service work. The magistrate in question in the article, Mr Vose, has expressed criticism of the current judicial system, stating that punishments were “too light”. This opinion, that “the price to be paid...is not very much”5, has shown to be reflected by the media. This view becomes more persuasive when the attitudes towards summary crimes of today and those of 19th Century England are compared. For example, the theoretical situation as presented by Dickens in Sketches by Boz, puts forth a situation in which a young boy is charged and convicted of pickpocketing, and sentenced to 7 years transportation; transportation was an alternative to the death penalty; it meant that convicts were sent to live and work in a colony of England such as America or Australia.6 Such a punishment, that of being sentenced to work in a colony, was not uncommon for what we would now view as a minor crime (such a stealing a loaf of bread), although it was argued that its central problem was that it did not reform convicts.7 It can be argued, without the acknowledgement of any socioeconomic or cultural differences between the youths, that the punishment towards petty crime in 19th Century England was far harsher then than it is now in 21st Century Western Australia.
Alternatively, another example of the puportedly 'soft' response to criminal offences, is a recent case where a 13 year old girl received no jail sentence for repeatedly punching a woman in the head, (May 2008), 8 in which the woman in question died the day after. The girl received a 6 month community based order. It could be argued that under new legislation,9 the girls' indirect involvement in the womans death, (through her “mild concussion” probably caused by being knocked to the ground after the assault), means she is criminally responsible for the death, and liable to imprisonment for 10 years. In this situation, it could be argued that it is not the penalties that have become soft, but rather the degree of flexibility in sentencing have caused the softening of the treatment of offenders, as well as the reliability of the justice system in handing out appropriate punishments, such as with the boy convicted of the graffiti charge mentioned previously. Ultimately, 'soft' penalties under Western Australian Criminal Law have been under the media spotlight in recent times. A comparison of penalties with 19th Century England as opposed to now can assist in verifying whether this opinion of criminal law penalties is justified.

INDICTABLE OFFENCES AND PUNISHMENTS
An indictable offence is one that is dealt with by a judge and jury in a District or Supreme Court. Some of the more minor indictable offences can be dealt with summarily by a Magistrate, due to the provisions made for a summary penalty in the relevant section of the Criminal Code.10 Some examples of (major) indictable offences include murder, treason, and armed robbery, while lesser indictable offences include assault occassioning bodily harm or stealing . The penalties for indictable offences have changed considerably from 19th Century England; for example, the prevalence of imprisonment for charges of assault, and the combination of alternative punishments, e.g. fines and whipping, at that time was rather frequent for a range of offences. The use of coporal punishment continued well into the 19th Century, but gradually declined until it was abolised by the end of the century. Although historically (as a colony of England), Western Australia used corporal punishment, it currently does not feature it as a penalty. The range and frequency of use of penalties in 19th Century England evolved from harsh penalties such as death or corporal punishment, towards an empahsis on imprisonment as a method of deterrence and reform.

Murder and Manslaughter
Penalties for offences are as varied as the crimes themselves, and are used for a number of reasons. In 19th Century England, the death penalty was orginally a mandatory punishment for those convicted of murder and manslaughter, and was often also given for those convicted of lesser offences, such as theft.11 Despite this, death sentences were irregularly carried out, due to mitigating circumstances being plead by the accused, or the sentence being transferred by the judge. Gradually, the death penalty became to be used less and less over the course of the century, evolving from being used for the most serious offences, until it was only murder and High Treason.12 This history of the use of the death penalty for a number of offences would have had an effect on society; meant as a deterrent, executions often became a public spectacle, until they were transferred inside the prisons. This frequency of use of the death penalty, along with harsh convictions such as years of transportation for convicts, is one reflection of the attitudes towards crime in 19th Century England, and is considrably different to the current approach taken by the judiciary in Western Australia. The regularity of offences being dealt with summarily and the ability of judges to acknowledge mitigating circumstances in sentencing means that the current judicial system is viewed as less rigid, and could be said to influence the current opinion on the media that penalties have become 'soft'.

The use of capital punishment was abolished in Western Australian in 1983, the last execution occurring in 1964 (NSWCCL). It has been argued that the death penalty should still be used in particular cases; one example is that of serial killers, who, (as previously) convicted of willful murder, would only receive 20 years.13 Under new legislation, however, life imprisonment is given unless the judge feels that the sentence is unjust or the person in question would no longer be a threat to the community once the sentence has been served (in which case they would be given 20 years)14. One opinion is that the current flexibility in sentencing provides challenges for judges, and the sentence given for those convicted for murder may not always be appropriate. As reported in the West Australian Newspaper of 02 August 2008, judges have been “cast adrift upon a sea of discretion”15. Currently, the penalty for murder is a life sentence of a minimum of ten years, up to 'never to be released', and along with 279.4 of the Criminal Code (in which, as previously stated, certain mitigating circumstances means the offender can be charged with 20 years instead of life), gives the judge a wide range of options for sentencing. As previously stated, it can be said that this flexibility in sentencing has influenced the opinion that penalties for crime in Western Australia have become 'soft'.

SOCIETY
The conflict between police and courts
An alternative interpretation of the reasons behind the focus on 'soft' penalties is that there is a conflict between branches of the justice system. For example, as in the article presented by the WA Police news in 2006, 'Judiciarys soft sentences degrade Police authority'16, the opinion is that sentencing does not “reflect societies values and expectations”, and has previously even required law makers to “intervene”. This apparent conflict between the courts and police has brought into question the emphasis on rehabilitation for offenders, and whether rehabilitation for “these people” who have a “previous history” would be successful, as stated by WA Police Union President Mike Dean in August 200817. Essentially, the current approach of the judiciary for sentencing is one of rehabilitation and reform of offenders18, and thus would influence the opinion that penalties are getting 'soft' in Western Australia.

The effect of culture and socioeconomics on punishment
The context of culture and society in 19th Century England must be included in any examination of its legal system, particularly in respect to punishments. For example, until 1827 many offenders were able to receive benefit of clergy; that is, if they could prove affiliation with a church (usually by reading a verse in the Bible), they were given no punishment except a branding on the thumb, and then handed over to the Church for them to deal with. Women who were pregnant were able to plead a respite from the death penalty until the child was born; however, concerns about the cost of raising the newborn meant that the mother was usually pardoned19. Differences in socioeconomic positions had a rather substantial effect; for example, England's Poor Laws, that regulated the movements and actions of those of a low(er) socioeconomic status20.
The significant part that socioeconomic status played in the legal system in England is comparable with the approach traditionally taken by that of Western Australia, where the court system is designed to be accessible to all, regardless of percieved status.. Although each court system originates from a Christian background, due to the transportation of the English Legal system because of the origins of Australia as an English colony; Western Australia began as a primarily convict settlement, and thus began with a system of martial law. These form the essential differences and similarities between the two court systems in time; their shared origin, and their differing approach to socioeconomic status.21

IN CONCLUSION
Ultimately, the view that penalties for breaking the law in Western Australia have become 'soft' is justifiable. In order to validate it, exploration of the history of of the attiudes towards criminal law is necessary, in order to compare the evolution of the justice system as a whole. For example, the vast difference between the criminal law system of 19th Century England as opposed to modern Western Australia, along with the differences between the social and cultural situations of the time, provides an insight into how this opinion can be formed. For example, the differences between the punishments for what are now classified as summary offences, would have resulted in the death penalty or corporal punishment in the early 19th Century. Currently, the flexibility in sentencing means that judges may take into account mitigating circumstances, putting emphasis on the rehabilitation into the community and reformation of the individual, as opposed to simple deterrence. Recent reports of cases where an offender has received a lesser or no sentence for an offence that would traditionally mean liability for imprisionment, such as for assault as previously referred to in articles featured in the West Australian and the WA Police News, have revealed a general opinion that the judicial system is not keeping up to date with societys' expectations. In conclusion, particularly when taken in comparison with both its history and that of 19th Century England, the attitudes and penalties towards breaking the law in contemporary Western Australia can justifiably be viewed as 'soft'.


1The Maquarie Dictionary, (Revised 3rd Edition, NSW: The Maquarie Library Pty Ltd, 2003)
2Criminal Law Amendment (Homicide) Act 2008 (WA),
3Criminal Code Act Compilation Act 1913 (WA)
4 Christiana Jones, ''Graffiti Boy Told to do Household Chores for Punishment', The West Australian, 20 August 2008, 16.
5As above.
6Charles Dickens, Sketches By Boz, 1836.
7Note: Transportation was theoretically abolished by the Penal Servitude Act of 1857, as cited in Emsley, Hitchcock and Shoemake, Punishments at the Old Bailey: Late 17th Century to the early 20th Century, Old Bailey Proceedings Online , at19 August 2008.
8Christiana Jones, 'No Jail for Assault on Tragic Mother', The West Australian, 06 August 2008, 7.
9Criminal Law Amendment (Homicide) Act 2008
10Law Reform Commission of Western Australia, Summary trial of Indictable Offences - 30th Anniversary Reform Implementation Report (2002)
,http://www.lrc.justice.wa.gov.au/2publications/summaries/P06.PDF> at 15 September 2008.
11Old Bailey Proceedings Online, Trial of Henry Woodman – Theft (1800), <http://www.oldbaileyonline.org/browse.jsp?id=t18000115-3&div=t18000115-3#highlight> at 27 August 2008.
12Offences Against the Persons Act 1861, (UK), as cited in: Emsley, Hitchcock and Shoemaker, Punishments at the Old Bailey: Late 17th Century to the early 20th Century. (See above).
13Stateline Western Australia, Serial Killers death brings relief to survivor (October 2005), <http://www.abc.net.au/stateline/wa/content/2005/s1478583.htm> at 15 September 2008.
14Criminal Law Amendment (Homicide) Act 2008 (WA).
15 Roy Gibson, 'Judge Sees Challenges in New Murder Laws', (02 August 2008), The West Australian,12.
16 Kevin McDonald, 'Judiciary's soft sentences degrade Police authority', (August 2006) WA Police News
17David Darragh, ' Cop Basher's Sentence Shows Judges Let Police Down: Union', (06 August 2008), The West Australian, pg 3.
18As previously mentioned, with the assault on the mother resulting in community service, written in the West Australian article of 06 August 2008.
19Emsley, Hitchcock and Shoemake, Punishments at the Old Bailey: Late 17th Century to the early 20th Century, Old Bailey Proceedings Online , at19 August 2008.
20Poor Law Amendment Act 1834 (England).
21Note: One point that could perhaps be considered important, is each respective societies reaction to reformed criminals. For example, convicted criminals were traditionally branded (for different) reasons so that they could be easily identified, while in contemporary times those who have served their sentence are not required to disclose their spent convictions.

Hypnosis: An examination into the history, theories and perspectives on hypnosis.

Hypnosis: An examination into the history, theories and perspectives on hypnosis.
Hypnosis is defined as an artificially induced state of relaxation and concentration in which deeper parts of the mind become more accessible (Collins, 2000). Hypnosis can be put forward as a matter of personal perspective. There are a number of definitions given by various academia on what hypnosis actually is; these include the suggestion theory, the modified sleep theory, and the conditioned response theory1. As a form of therapy, it has a relatively short history, given its origin in the 18th century2. The general consensus on what hypnosis is appears to be that it is an altered state of mind, one of deep relaxation. This in itself requires a definition of an ‘ altered state of mind’, which, according to Kirsch (1998)3, the term implies a change or changes in ones individual experience(s) . The central argument in the validity of hypnosis is that of suggestibility; the differences in the capability of people to be influenced by the will of another, and how this factors into behaviour in the trance-like state produced by hypnosis. There are a wide range of uses for hypnosis which have varied over time; it is now acknowledged as a valid addition of complementary medicine.4
A short history of hypnosis
The origin of hypnosis as a form of treatment is generally acknowledged as having occurred with Franz Anton Mesmer in 1778, with his methods of magnetism. He believed in a universal fluid that could be balanced in the body to cause healing through ‘magnetization’: this was achieved through direct (physical contact from the magnetizer) or indirect (iron plates attached to the patient’s body to concentrate the fluid). Mesmer did not achieve public recognition5. His theory was adjusted and officially classified as hypnotism by James Braid in Manchester in 18456. Braid’s method was to induce a trancelike state by requesting that subjects fix their gaze on a single point for a short time. Braids later successes implied that suggestion alone was the basic, underlying factor7. It should be noted that ‘suggestion’, as given in hypnosis terms, is generally indirect8 This was followed by A.A. Liebault in 1886, who developed a method of inducing sleep as a form of treatment, using little but suggestions to influence cures9. Mesmer’s original theory was extended by Charcot in 1878, who succeeded in isolating the nervous system as causing the effects of ‘hypnotic phenomena’. Janet his student, argued that people “can submit to suggestion only after modifying their psychological nature”10, contradicting Braids’ theory. Freud, who worked with Charcot, used hypnotism to study the unconscious. Originally, Freud used “hypnosis in an effort to directly suggest away annoying symptoms or even to ‘wipe away’ disturbing thoughts and memories”11. Older methods of hypnotism fell into disuse in the late 19th century, reportedly under the influence of Babinski12, returning with alternative methods based on ‘shock therapy’, often drugs, in the early 20th13.
Following is some of the various theories on hypnosis that have occurred over the years. Firstly, there is the suggestion theory, that hypnosis is an induced state of mind which creates increased suggestibility. Next there is the modified sleep theory, as hypnosis presents as the early stages of sleep14. One put forward by Charcot is that hypnosis was a pathological state similar to hysteria and anxiety (Cowen, 2004). A another example is the conditioned response theory, produced by Pavlov and his associates15, which suggests that a hypnotic trigger is the result of continued associations, such as the use of the word ‘sleep’ for hypnotic induction (Cowen, 2004).
Currently, the validity of clinical hypnotherapy as a treatment has been acknowledged as being justified. The Australian Medical Association has recently stated that:"As evidence emerges that some complementary medicines are effective, then it becomes ethically impossible for the medical profession to ignore them"16 (National Conference, May 2001). Although there have been conflicting views on what theory of hypnosis to support, the benefits shown by clinical trials and associated evaluations are evident. There has been an increasing interest shown in alternative medicines and the connection between the mind and body17, as well as the frequency of use of self-hypnosis.
Suggestion as motivation as opposed to the ‘altered state of consciousness’: common behaviours attributed to the ‘hypnotic trance’.
Behaviour that is commonly attributed to the ‘hypnotic trance’ is generally influenced by the therapist. One example is given by Zahrourek in 2002, is that the therapist leads the client into an unconscious search, in which experiential, problem solving and behavioural rehearsal is possible18. Another description of the behaviour that occurs in a trance state is a feeling of relaxation or tiredness, which is again induced by the therapist19, so much so that the subject(s) were unable to lift their eyelids.20 The type of behaviour that occurs in a hypnotic period depends on both the leading (suggestions) given by the therapist and the individual themselves.
There is a valid argument behind the theory that hypnosis is an ‘altered state of consciousness’, although it has been shown to tie in to being motivated by suggestion. One definition of hypnosis is given as an altered state of brain function induced through suggestion and influenced by interpersonal and cultural cues, which may produce an atypical subjective “experience, volition and physiology” (Hasewaga & Jamieson, 2002). This, for example, includes behaviour or experience which may be unexpected or perceived to be not normally achievable for that individual, given that:
“...amnesic subjects cannot remember things they should be able to remember; analgesic subjects do not feel pain that they should feel; subjects asked to be ‘blind’ and ‘deaf’ do not see and hear things that they should be able to see and hear...” (Kihlstrom 1997)21
The question that negates this perspective is whether there is a uniquely hypnotic state produced by suggestion (induction), and whether the experience that results from said suggestion is due to a dependence on this state (Kirsch, 2000)22 Variables such as compliance, motivation, absorption, imagination and expectancy have been emphasized (Sarbin and Coe, 1972)23 One argument in support of the theory that hypnosis is an altered state of consciousness is that of time distortion; rather, the amnesia that occurs regarding the activities that occurred during the hypnotic state and the length of time which passed. There has been no link proven between susceptibility to hypnosis and the level of time distortion that occurs.24 Alternatively, absorption, or involvement with the activity during the hypnotic state, has been shown to correlate with susceptibility to hypnosis. The central argument against this is that tasks that require high attention have been shown to cause time underestimation (Brown & Boltz, 2002)25, whether under hypnosis or not (St. Jean et al.1994)26.
Criticisms of Hypnosis
There are a range of criticisms of clinical hypnotherapy, although it should be remembered that it is currently suggested for use as a complementary form of medicine and not as a sole treatment. “Studies show that hypnosis tends to cause people both to remember and to imagine more, thereby increasing both true and false memories.” (Harvard Mental Health, 2002). This particular view has received a fair amount of media attention. A commentary on a paper by Wagstaff (2000) has reflected upon the fact that a minority of individuals receive negative responses, post-hypnotic experience, such as headaches, nausea, dizziness and stiff necks27.
Conclusion
The definition of hypnosis is dependent on a number of factors. These include the various theories given for the causes of hypnosis, as well the argument over the suggestibility of the individual and the influence of the therapist, along with the relationship between the subject and therapist. Despite its criticisms, hypnosis has been shown to be beneficial as a form of alternative or complementary medicine. Given that general consensus appears to be that hypnosis is a state of mind, one of deep relaxation, it can be argued that hypnosis is relative to the individual, and thus a matter of a subjective perspective.

1 Cowen, L. (2004, September). What is hypnosis?. Journal of the Australian Traditional-Medicine Society, 10(3), 105-107.
2 Chauchard, P. Hypnosis and Suggestion (1964), New York: Walker and Company, p3.
3 As cited in Hasegawa, H., & Jamieson, G. (2002, September). Conceptual issues in hypnosis research: explanations, definitions and the state/non-state debate. Contemporary Hypnosis, 19(3), 107.
4 Cowen, L. (2004, September). What is hypnosis?. Journal of the Australian Traditional-Medicine Society, 10(3), 105-107.
5 Chauchard, P. Hypnosis and Suggestion (1964), New York: Walker and Company,p5.
6 Ibid, p7.
7 Scott Moss, C. Hypnosis in Perspective (1965), New York: Macmillan
8 Marcuse, F.L. Hypnosis: Fact and Fiction (1959), Baltimore: Pelican Books
9 Chauchard, P. Hypnosis and Suggestion (1964), New York: Walker and Company,p9.
10 Ibid, VII
11 Scott Moss, C. Hypnosis in Perspective (1965), New York: Macmillan
12 Chauchard, P. Hypnosis and Suggestion (1964), New York: Walker and Company,
13 Scott Moss, C. Hypnosis in Perspective (1965), New York: Macmillan, p15.
14 Cowen, L. (2004, September). What is hypnosis?. Journal of the Australian Traditional-Medicine Society, 10(3), 105-107.
15 Ibid, p106.
16 Ibid, p105.
17 Hypnosis: theory and application: part II. (2002, June). Harvard Mental Health Letter, Retrieved October 11, 2008, from CINAHL Plus with Full Text database.
18 Zahourek, R.P., (2002). Utilizing Ericksonian Hypnosis in Psychiatric-Mental Health Nursing Practice. Perspectives in Psychiatric Care, 38(1), 15-22.
19 Marcuse, F.L. Hypnosis: Fact and Fiction (1959), Baltimore: Pelican Books
20 Scott Moss, C. Hypnosis in Perspective (1965), New York: Macmillan, p15.
21 As cited in Hasegawa, H., & Jamieson, G. (2002, September). Conceptual issues in hypnosis research: explanations, definitions and the state/non-state debate. Contemporary Hypnosis, 19(3), 103-117
22 Ibid.
23 Ibid, p106.
24 Naish, P. (2006, March). Time to explain the nature of hypnosis?. Contemporary Hypnosis, 23(1), 33-46.
25 As cited in above.
26 Ibid.
27 As cited in with Lyn, S. J., Myer, E. & Mackillop, J. (2000). The systematic study of negative post-hypnotic effects: Research hypnosis, Clinical hypnosis and Stage hypnosis. Contemporary Hypnosis, 17(3), 127-131

The abolition of the defence of provocation in Western Australia

INTRODUCTION

The recent abolition of the partial defence killing under provocation can be considered as a substantive, rather than simply a cosmetic, change to the Western Australian Criminal Code (“the Code”). Provocation, which has assault as its central element, was originally defined1 as any wrongful act or insult done to or in the presence of an ordinary person, or to those which he has a familial relation to, which deprives him of the power of self control and induces him to assault the person by which the insult was done or offered. Section 2812 set out that the partial defence of killing under provocation, that death resulting from a provoked act which world normally result in a murder charge, results in manslaughter only.3 The Criminal Law Amendment (Homicide) Act of 2008 sets out those sections of the Code and associated legislation which has been repealed and replaced. Section 281 has removed killing under provocation and replaced it with 'Unlawful assault causing death'. This states that death resulting from an unlawful assault4, whether expected or reasonably foreseeable or not, means that the offender is criminally responsible and liable to 10 years imprisonment. This change to the legislation can be argued as substantive because the intent element has been changed, that provocation can no longer be taken as a defence with the exception of mitigating circumstances in sentencing,5 and that it would now result in a charge of murder rather than manslaughter. In order to fully explain this argument, one must look further into the history of provocation as a defence, and the reasons why it has been repealed as a partial defence under the Code.

ISSUES WITH THE PARTIAL DEFENCE OF PROVOCATION
Intention

The defence of killing under provocation is the equivalent of changing an intentional killing to an unintentional one. As previously stated, provocation is considered an intentional killing; the mental element for murder does not require proof of premeditation, even proof of split second intention is enough. Provocation is irrelevant as a defence unless it has been proved beyond reasonable doubt by the prosecution that there existed the required intention for murder6. Thus, due to the required intention, provocation is classified as a partial defence to killing, (rather than a whole defence).Originally, provocation was viewed as a justification based defence, focusing on the extent (and effect) of the wrong, although it has evolved over time, into an excuse based defence, where the accused conduct and mental state is the focus.

The partial defence of provocation was a controversial for a number of reasons; the central one being that manslaughter was a less serious offence with less serious consequences, despite that intention must be proved in order to use provocation. A perhaps more significant argument against the use of the provocation defence is the 'ordinary person' test. This requires that the provocation was significantly serious that an ordinary person could have lost self control and killed.7 The issue with this is that certain types of provocation might be trivial and insignificant to one person and yet 'quite extreme provocation' from another's viewpoint.8. In Masciantonio9, the High Court stated that, “The provocation must be put into context, and it is only by having regard to the attributes or characteristics of the accused that this can be done”. The complexity of assessing the provocation in context by the jury has been an issue of contention. Overall, the requirement of intention for murder in the provocation defence, as well as the complexity of the ordinary person test support the repeal of the previous legislation.

The repeal of the previous legislation is substantive due to the change in the requirement of intention. Previously, intention was a required element for death from assault (because essentially, although not premeditated, a provoked killing was still an intentional killing, albeit even if it is a sudden intention). Under the new section 281, the offender is criminally responsible, 'even if the person does not intend or foresee the death'. Originally, the accused, if successful with the defence, was still criminally responsible for manslaughter, but under the new legislation, they are responsible for murder, albeit without intention.

Consequences of the new legislation
The abolition of the partial defence of killing under provocation can be considered a substantive change in the law due to the number of consequences it results in. Firstly, the offender is convicted of murder, and any mitigating factors (such as provocation) can only be taken into account in sentencing. It has been argued that this may result in murder convictions that no one would want. Alternatively, there still exists in the Code provisions for an oft-used argument against the abolition of the provocation defence: that of battered women. Examples of said provisions include that of section 248, Self defence against unprovoked assault, and section 249, Self defence against provoked assault.10 A further argument against the defence of provocation is that it, at least partially, condones violent responses. In a modern context, it has been seen that violent responses are not culturally acceptable, thus expanding upon the theory that the defence has evolved from a justification to an excuse.

Current legislation – Advantages and Disadvantages
The reform of Section 281 of the Western Australian Criminal Code offers a number of advantages and disadvantages. As previously stated, the abolition of the partial defence of provocation may result in inappropriate murder convictions11. Alternatively, it is argued that provocation can and will be taken into account in sentencing. For example, the sentencing process in Western Australia has been considered to be relatively flexible, particularly considering the number of changes to the Code12.

CONCLUSION
The abolition of the partial defence of killing under provocation is a substantive change to the criminal law of Western Australia. The primary and perhaps most significant reform of section 281 is the element of intention required; originally, intention for murder was required beyond reasonable doubt, (with the result of criminal responsibility for manslaughter), but currently the accused is criminally responsible whether the death was intended or not. The removal of provocation means that rather than the mitigating circumstances being considered in prospect of conviction, they are considered in prospect of sentencing. There are two main arguments surrounding provocation; that it should be retained for the 'battered woman' defence, and that it should be abolished due to the inconsistency of its rationale and the partial condoning of violent responses. Effectively, the self defence clauses of the Criminal Code, as well as those of duress, would accurately cover most situations in domestic violence cases. The incorporation of the new Section 281 may result in considerably different interpretations of assault cases; it has been argued that the results may be too harsh. Alternatively, it could also be said that the current flexibility in sentencing laws means that provocation will be considered sufficiently in sentencing. Overall, the abolition of the partial defence of provocation will change the perspective on assault cases and allow for a less rigid approach to sentencing.

References / Footnotes.
1Criminal Code Act Compilation Act 1913 (WA), as of Reprint 13: 18 January 2008
2Criminal Code (WA) as above.
3Section 270, “Kill” meaning of: Any person who cause the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.
4All assaults are unlawful unless authorized or justified or excused by law, as set out in section 223 of the Criminal Code (WA).
5 'Review of the Law of Homicide: Final Report' (2007) Law Reform Commission of Western Australia, No. 97.
6Law Reform Commission of Western Australia (LRCWA) Report 97 (2007), pg 202.
7VLRC, 'Defences to Homicide: Issues Paper' (2002) [6.3], as cited in LRCWA No. 97 (2007).
8 Dimond (Unreported, New South Wales Court of Criminal Appeal, 27 May 1996)
9Masciantonio (1995) 183 CLR 58.
10 Tarrant S, Women Who Kill Their Spouse in the Context of Domestic Violence: An opinion for the Law Reform Commission of Western Australia (August 2006) 38, as cited in LRCWA No. 97 (2007).
11Let it be noted that considering the Homicide reforms are relatively recent, it has yet to be seen as to whether such cases will result.
12Roy Gibson, “Judge finds challenge in New Murder Laws” The West Australian Newspaper, 02 August 2008.

What makes a good lawyer?

What is a good lawyer?
(A Paradox).

A good lawyer acts ethically within all areas of life. This means an ability to balance adequate amounts of time spent between work and home, while incorporating a lawyer’s duty as officer to the court and the duty to the professional code of conduct. A lawyer must follow many rules, written and unwritten, as s/he works to combine their responsibility to achieving justice, with their commitment to the client. In achieving these aims, a lawyer combines adherence to the professional conduct rules and general ethics – meaning that they combine the teleological, deontological, and virtue theories of ethics, along with a responsibility to the profession and society as a whole.

The first rule of the Professional Conduct Rules of Western Australia (PCR)1 states that a lawyer must act ethically and honestly in their work at all times. To further explore the meaning of ethically, and to consider ethics as a whole and in combination with the law, the three central theories of ethics must first be discussed. Ethics, in principle, is a philosophy that evaluates human conduct, and actions of morality2. In summary, teleological ethics is about the consequences of an action; deontological ethics is concerned with obligation; and virtue theory concerns the analysis of what it means to be a good person rather than what a decision entails. It could be said that the law is primarily concerned about deontological ethics, because of the obligation a lawyer has to duty. Again, it can be said that legal ethics is a combination of all three principles. One of the quotes most commonly associated with deontological ethics is Kant’s categorical imperative: “Do unto others as you would have done to you”. There are a number of rules detailing the behaviour of the practitioner in areas where possible conflicts of interest may occur, an example: Rule 7.1 of the PCR details that a practitioners own interest or perception of the public’s interest cannot come into conflict with the clients interest, subject to a practitioners duty to the court. Under interpretation of both statements, a lawyer cannot impose their interests or beliefs onto a client, dismissing Kant’s imperative. This means that part of the deontological theory of ethics is fulfilled in part but not in whole.

Teleological ethics, also known as consequentialist ethics, is concerned with the end outcome of a decision. Morality, what is good or bad, is defined by the consequences of a decision. It could be said that the law is primarily concerned with end outcomes: achieving justice, settling disputes, completing cases successfully. The impartiality required by lawyers in their work is consistent with the idea that value is placed on results, rather than actions which conform to some intrinsic moral principle. The lawyer is also required to advance the clients’ interests, which relates to the teleological utilitarian theory of achieving the greatest good.

Essentially, in order to abide to the Professional Conduct Rules, and successfully act ethically at all times, a lawyer must combine the principles of both teleological and deontological ethics. A lawyer cannot act according to the theory of virtue ethics while abiding to these rules and their duty to the court: as previously stated, the view of the practitioner in relation to the client cannot come into play. The conduct of a lawyer is not defined by virtues or character traits; rather, s/he must act in accordance to the rules, the interests of a client, and responsibility to the court. For example, when defending a client convicted of a criminal charge, the lawyer must defend any person on whose behalf the lawyer is instructed, irrespective of what opinion the lawyer may have formed about the guilt or innocence of that person1. If a client clearly confesses guilt, the lawyer must continue to act after proceedings have commenced, subject to the lawyers duty to the court. Although the lawyer cannot remove their client entirely from the position of possible guilt, the lawyer may be seen as indirectly dishonest, because s/he knows of the guilt of the client, and yet (must) endeavour to achieve an acquittal. Again, if a lawyer believes that s/he may have prejudice or interest against a client, they are required to inform said client that they are unable to act, due to conflict of interest. Encompassing the whole of what is means to have good character; to abide by the virtue theory of ethics can only be achieved in small part by a lawyer.

To be an ethical lawyer, one must act ethically in all parts of life. Abidance with rules of conduct just isn’t enough. To a substantial extent, formal disciplinary rules have lost touch with ordinal moral institutions (Schiltz, 2000). To practice law ethically, a lawyer must act in accordance with those institutions. P. Schiltz states that it is impossible for a lawyer to prevent themselves from submitting to the kind of culture that surrounds the practice of law today3. For example, a lawyer is required to fulfil a certain amount of billable hours. It seems inevitable that at some point the lawyer will bill their client extra for a task that actually took them little time. This supposedly inevitable dishonesty does not coincide with either virtue ethics or the Professional Rules of Conduct (rule 5.8).

Although the lawyer may not be entitled to act in accordance with their perception of the public’s interest, s/he has a certain responsibility to society. This, although explicitly stated in part 3 of the PCR, is also implied in the general role of the lawyer as a figure of authority in the community. Working for the Citizens Advice Bureau, a free information referral service which also offered legal services at a reduced cost, enables one to see the respect that a lawyer receives due to specialist training and experience. A lawyer has spent a relatively long period of time learning the law; a subject which everyone knows is lengthy, detailed, and wide ranging. It is assumed that a lawyer who elects to either do probono work or be a principal solicitor at the Citizens Advice Bureau has spent time doing other work. Thus, the service these lawyers provide to the community in lieu of earning a much higher per-hour rate is acknowledged. The combination of these two aspects means there is an expectation that the lawyer will inform clients and the community accurately on points of law and endeavour to assist them to the best of their ability.
One of the requirements of booking legal appointments with the solicitor at the Citizens Advice Bureau is ensuring there has not been a conflict of interest between two clients (particularly in family law). Advisors of the service are required to explain that firstly, they are not qualified to instruct on legal issues, (but are able to direct inquiries in the right direction), and secondly, that a conflict check is required. This acknowledges the lawyers authority and qualifications, and abidance to the Professional Conduct Rules. From personal experience, it can be quite confidently said that lawyers working for the Citizens Advice Bureau practice law ethically. They abide by the professional rules of conduct, act ethically within their work, and live an ethical life outside of work in service to the community.

What makes a good lawyer isn’t simple. A lawyer must act ethically within all parts of life, but most importantly, in their work, in order to achieve what could be considered a ‘good’ lawyer. Firstly, a good lawyer combines duty to the Professional Rules of Conduct (Delos), which incorporates their duty to the court and the advancement of the interests of their client. Secondly, a good lawyer adheres to achieving justice, and aiming for the best outcome in their actions and decisions (Delos). Thirdly, a lawyer incorporates the virtues of ordinary moral institutions, such as honesty, respect, compassion and the keeping of promises. Finally, a lawyer balances their work with life outside, in keeping to their responsibilities to their family, friends, and the community. A good lawyer incorporates all of these things.



References:
1. The Law Society of Western Australia Professional Conduct Rules, December 2005 Revision, s 2.2.
2. Process of Ethical Decision making: ET 100, Introduction to Ethics (Handout). University of Notre Dame Australia
3. Patrick Schiltz, ‘Money and Ethics: The Young Lawyer’s Conundrum’ (2000) Notre Dame Magazine.

Ebay - To use or not to use, that is the question

Ebay - drug of choice for internet junkies the world over.

I am never, ever going to use it again.

The moment I refund the stupid sod who wants to return the PDA phone I sold him (on the condition he understood it was BROKEN and there were to be NO RETURNS), I am going to close my account.

Perhaps its just a people thing. I mean, the system seems to work pretty well (with the exception of the various holy pieces of toast and babies being sold). Firstly, I made the near fatal mistake of selling the Landrover rear seats we had for a measly $15 dollars (they are worth about $400 at least), because it didn't occur to me to put my reserve price up higher. Next I put the wrong paypal email address for a hockey stick I paid $27 to post interstate, and ended up not being paid anything at all (It took me two months to figure out nothing was ever going to happen). And, finally, I decided to sell a PDA I bought off my cousin. It worked, when I bought it, and gradually begun shutting itself down after shorter and shorter periods of time.
The sod who is going on my to-kill list has reportedly taken it to a phone technician who claims there's been water damage. The phone hadn't even been outside while under my ownership. Grrrr...

Let this be a lesson learned to all. Or rather, 2 lessons.
1. Ebay is to be only used in desperate, financially starved situations.
2. Never enter into any sort of business deal with friends or family.

Now, I could go on forever and ever and ever about the numerous business deals our family has conducted with others that have gone down the drain, for one reason or another - but really, I just wanted to point out that Ebay, in my unfortunate experience, is a waste of time and money unless you know 100% what you are doing.

Lexemes: Anthology soon avaliable at Collins

Lexemes: Anthology, soon to be avaliable at Collins Booksellers in Cottesloe, 23 Napoleon St.
The manager I spoke to today was very kind and not only gave me plenty of advice on publishing, publicity and book distribution, he also offered me shelf space! I am beyond pleased. I was so excited and astonished I forgot to shake his hand. (My mother would be horrified - I was educated better than that).

It's likely if anyone from around here wants one they can pick it up early next week. The number is 08 9284 7070. Otherwise, I have a business account with Paypal. Paypal is a fast, easy and secure way to pay with your credit card, paypal balance or bank account. Also, not sure if I've stated it before, but it is also avaliable as an ebook for $0.99 (US) download at Lulu (just click the Buy now button to your right) - but then again, 80% of the content is free, on this blog.

Lexemes: Anthology
Paperback book $11.50
Download: 1 documents, 707 KB
Printed: 192 pages, 6" x 9", perfect binding, cream interior paper (60# weight), black and white interior ink, white exterior paper (100# weight), full-color exterior ink

ISBN: 978-1-4092-0396-4
Publisher: Lulu.com
Rights Owner: Lily Seabrooke
Copyright: © 2008 Lily Seabrooke Standard Copyright License
Language: English
Country: Australia
Version: 13

Your brain needs feeding - Try Lexemes: Anthology!

Perth, Western Australia, May 28th 2008 — Young author Lily Seabrooke wanted to write and publish a book within a short space of time, while incorporating content that was interesting and educational. She has found a solution. Lexemes is a 192 page anthology of essays and creative writing pieces written on a vast range of topics, which include politics, ancient history, english literature, philosophy, and society.

Examples of works reviewed include: Herodotus: The Histories; Virgina Woolf: To the Lighthouse; and Michael Ondaatje: The English Patient. The book also examines hotly debated topics such as capital punishment, abortion, and international politics. Lexemes aims to provide informative and entertaining articles from both an academic and personal perspective. Ever wanted to learn something new? To think about something different, for a change? This is where you start.
Lexemes: Anthology is available for purchase at Lulu.com, the world's leading service provider for publishing print-on-demand books, at : www.lulu.com/content/2370194. It is also available through search and browse at Amazon.com and Barnes&Noble.com, ISBN: 978-1-4092-0396-4. The proposed Retail Price is $11.50.

About the Author:
Lily Seabrooke has won an award in the West Australian Young Writers Contest 2007, and has also been published in the small poetry magazine Primo Lux in 2007. This is her first book. She is currently in her first year of study at university and writes only on a part-time basis.

The Universe, Life and Everything

Eeek. The chaos.
Our house is in boxes - If I never have to hear the sound of duct tape ever again, I'll be happy. It's still ringing in my ears, and that was an hour and a ten minute drive ago. We're down to eating yogurt with forks (or at least I am). Sitting quite happily in the university library and getting up to date with all the work I never do.

The best thing about moving has got to be the forced cleanout. The amount of junk and rubbish one manages to fit into an average sized room is astonishing. Planning again to go to swapmeet to sell my masses of books and other paraphernalia, and hopefully (if it arrives by then), generate a bit of interest in my book.

Now, those who haven't been reading this blog from the beginning - which I really recommend you do, considering all the valuable, educational content is at the beginning - you might not know that the main reason it was started was to be published in print. The current dependence we seem to have on the internet is astonishing, so it makes sense that its more likely that one of the billions of people surfing the internet is likely to buy it, rather than my selling it by hand.

I have a number of problems with marketing. Google adwords was attempted - for 3 days, before I ended up spending $13 minimum a day, and generally more. That certainly swallowed my precious $65 up quick. Though, it did generate the page impressions, and did get me a few clicks. The linkad I had for the Lulu.com site got 72,000 impressions and 28 clicks within 2 days. Adwords also assisted in boosting me up from 290+ on BlogToplist to the 142 it was yesterday (when I quit).

As I am a university student who wastes all of her time on the computer, and all of her money buying drink rounds at a trail of clubs on the weekends, its rather difficult to get the professional marketing and publicity I need. Lexemes: Anthology doesn't exactly fit any sort of niche market that I have discovered. After spending far too much time trawling through the rubble on Google and reading the smallprint on Lulu community forums re: marketing, the only solution for me seems to be store to store selling.

In other news, here are a number of books I would recommend:
1. Any of the pocket penguins. Great for reading while going to sleep, as most of them are refreshingly different and light - and if not light, very interesting.
2. Anonymous Lawyer - Supposedly the book form of a blog written by an American Lawyer. No names are used in the work. It's an extremely funny insight into the workings of a firm and the mind of the main character.
3. Herodotus, the Histories - This I stick with Dostoeyvsky and Douglas Adams. As in, if your house burns down, ditch everything else.
4. A fraction of the whole - Read recently. Quite frankly, there is nothing out there like it. It's so different to 99.99% of everything I've ever read. It is the story of Martin and Jasper Dean, effectively told through Jasper, about their family's life. It was amazingly well written - I found the first chapter on the Borders website, and spent the next 3 days harassing our local bookstore until they brought it out. Once i'd bought it I didnt sleep until I'd finished.

That's all folks. U.L.E will be continued in Part 2 - no doubt once I've washed my car and eaten takeaway food on the floor for 2 nights (we don't have any tables at the moment either).

Forming Words - Short story

Nothing. Blank. Empty.
“wha…eee” Soft? Familiar, in a strange uncomprehending way. He does not truly recognize it, but knows it is locked away somewhere inside.
White, and then hot. Pleasing. How to describe it? He wonders at the strange sensations the warmth from the open space above the softness creates. He knows that he likes it, and pauses for a while to bask.
He recognizes the shape of other, other things, the same as he sleeps on. Sleeps? Sleep and Coffee. The two words connect in his mind, go together, but he does not quite understand why, or what they mean. He takes a guess, for perhaps sleep was the state where everything is black and pleasing and odd moments of color and sound come and go that he has no control over.
He finds himself touching the floor. Cold. The movement is ingrained, and he stands slowly. There is an urge to move, to explore, a subtle need to bring back comprehension of the space around him. He reaches for the long white thing that is attached to the big round thing, on top of that which sits next to the soft place. He thinks it is odd that he knows how to describe these objects, but not the names he knows they belong to. He runs his thumb over it, exploring the sensation.
“Ah!” A noise comes out of his mouth. He shies back, astonished at the light that emits, like an imitation from the space where the warmth comes from. He pauses.
“Ahhh…mmeh….nnnah…jehpuh…wha..wheee…ghuh…boo”. His face contorts slightly as he amuses himself with the ability to make noise. But, nothing comes of it, so it is discarded for the moment. Under the flat housing is a small ball of heat and light, and he stares in fascination before he realizes it’s probably better to turn away, and spots Neilce before his eyes. He moves his head around, amused that he can see all this, while the black image re-appears every time his eyes blink.
He is disappointed when it fades, but knows somehow that there is something more important to be doing, but is happy to take it slow. These thoughts, impressions of thoughts, flitter through his mind, and he recognizes the word happy.
A brilliant smile erupts at this achievement, and he moves across the soft place where he had been before, in order to stand and see out the space where the warmth came from.
It is nothing like the white place behind him. He can see a great expanse of emptiness above, and a flat below. Greens? It had something to do with green, and he remembers that it is almost as soft to lie on as that which sits next to him. Not far from his vantage point, although a distance below, were what he recognized as trees. He smiles again, his face lighting up. Once more words flicker through his mind that associate themselves with trees. Those great, big, branches, and leaves and shadow and filtered light.
He leans on the edge, wondering what needs to be done to reach the trees. A leg comes up. Was it called a leg? He thinks so, and nods to himself, guessing that must mean he has two short legs, near his face, and two long ones, further below. He pauses, leaning one leg on the edge.
“One, two, three, five, seven, nine,…twelve...twelve..”
His brow creases in consternation. The sounds go together right, but it does not make him happy. He thought they had something to do with his legs, and the short things on the ends of his short legs. There was something missing, why the sounds go together, and why they are so important to him that he can form them with his face and nothing else.
Abandoning the space that showed the trees for the moment, he sits back on the white soft place to tackle this new dilemma. Repeating the words in his mind does not bring any fruit, and the way the coolness has suddenly come through from the space is distracting him. He lies back down, abandoning the problem for the moment, and lets his thoughts wander for a while.
He is watching the tall white hangings that separate the places to lie on, and he thinks, rather abruptly, that they are called blankets. There are many blankets in the room, edged by the hangings that are pushed back to the walls, all the way to the tall brown spaces, that which opens, that he thinks might lead to somewhere else. That which opens had the feeling of always having been an important part in his before-sleep.
He wonders, gradually, why there is no other, not others here, because he remembers that he is not the only one in the world, remembers what he can’t tell is a harsh expression of happiness or sadness, that couldn’t have possibly belonged to him. The realization then comes that he is alone, and he wonders why he has been put here, why his existence is made up of four walls, doors, trees and blankets and the occasional dream, but nothing else. He considers, for a moment, that that which opens could be a way to get to the space where the greens and the trees are, but is not really in the mood to try. It does not bother him at all that he knows no names, only descriptions and purposes.

Suddenly, there is a sound from behind that which opens, rising and lowering in pitch and speed, pausing once that which opens begins to move. A familiar yet unknown feeling lances through him, causing a reaction that perhaps was pure reflex. He lay down on the soft place, imitating sleep.
…
“He’s a lucky one, that’s for sure. With the influx lately, it’s lucky he isn’t dead – but, we still don’t know whether he is going to be a vegetable.”
“Got friends higher up then, or somewhere, if he’s landed here.”
“Yeah. Whenever we get a suspect, they usually disappear within the day, records and everything. They don’t even leave bloodstains on the sheets.” “They have more of a chance here. We just get dead bodies”
“I know. I guess they don’t think he is worth it.”
“Or he could have nothing to do with it.”
“Possibly. We’ll just have to find out”. The two nurses stood at the end of the long ward, watching the patient asleep in his bed. The shorter on handed across the trolley, murmuring a good bye and a good luck before she left. The patient did not move as she pulled out the blood pressure band. It was only when she moved to check his pulse rate did she realize he was awake.
An eye creaked open slowly. It studied her carefully, before the other followed. He was a tall man, of an indeterminately young age, and completely hairless. She stood back as he moved slowly away, edging over the other side of the bed. She wishes she had locked the doors before she’d woken him.
“Hello”.
He does not flee as she had suspected, what is left of his muscles tensed in anticipation.
She holds out her hands, palms flat, slowly. His grey eyes are studying, but they do not seem particularly afraid, just accepting.
“It’s ok. You’re safe here”.
Inwardly she cringes at the cliché, but cannot think of what else to say. They do not get many mental patients here, since the Change. Most are kept locked away in the Institution.
He kept looking at her fingers.
She did not know why, but glanced at her fingers anyway to check they were all there. He was missing the index finger on both hands, but he did not appear to be self conscious of it. An old wound, and well healed over.
He shifted closely to the bed, those deep grey eyes intent on her face. They were old eyes, knowing but at the same time with that eagerness to learn of the world.
“Trees”.
She started. He had never spoken before, not in dreams or the few times he had regained consciousness.
“Trees.”
A small wrinkle appeared on his previously smooth brow, as if one word should convey all the meaning in the world.
“I’m sorry. What?”
She was at a loss. He motioned somewhat irritably to the window behind, still looking at her.
“Trees,” he repeated insistently.
“They have always been there, if that’s what you mean”.
A tip of a pink tongue appeared on the edge of his lips, and she almost felt relieved when that intense gaze left her to look inward.
“Down?”
He looked expectant, as if waiting for permission.
Ah.
“No, you’ll have to stay here until we can identify you, and you have your memory back. I’m sorry”.
That smooth face drooped sadly for a moment, but almost as suddenly was gone to be replaced by a small smile. She waited expectantly, but nothing came, and moved to close the window above him. She did not want him attempting to climb out.
He simply watched her, and she couldn’t tell whether that gaze reminded her more of a cat or a dog, but all the same.
She took the clipboard out of the trolley and took the chair from behind the curtains to sit down beside him.

“Do you know who you are?”
He looked at her blankly.
She paused for a moment, thinking that perhaps he was waiting for her name.
“My name is Sarah, Sarah Riley, and I am your healer.”
She stuck out a hand, and immediately regretted it. He did not need reminding of his deficiencies. He merely looked, though, in that uninterested sort of way, at her hand, then shifted back to her face.
Hastily putting her hand back to the clipboard, she moved on.
“Do you have any friends or family?”
Nothing.
“Do you know who brought you to the hospital?”
Nothing.
“Do you know what has happened to you?”
In some way she hoped he did not. He had been a bag of bones and blood and drugs when he had arrived, and it had taken her two months to coax him back to them.
The same vague, expectant look.
“Do you remember anything at all?”
Still nothing. But, for a moment, he pursed his lips.
“Coffee?”
She almost laughed. How ironic that he could remember that. She would have to tell Matthew of that one.
“No, we can’t give you any coffee for a while yet.”
He cocked his head to one side, as if to puzzle out how to wheedle coffee out of her – she half expected it - but he then shifted back to that state of emptiness.
She sighed, and put the clipboard down to her lap.
“What do you know about trees?”
“Trees?”
“Yes, trees. Those big, brown, leafy things that grow in the sun and provide oxygen for us to breathe.”
“Sun?”
It was like speaking to a child who was just learning how to talk. Sarah had never been very good at relating to children.
“The sun is one of the 8 planets. It provides light and warmth and allows plants and animals, including trees and humans, to live”.
“Live”.
It was not a question. He had almost sighed the word, looking down to where his legs were stretched out on the bed. He looked behind him up to the window, then to the patch of sunlight on the floor.
“Light. Warmth”
He looked back at her.
She nodded. “Yes. The sun provides light and warmth. The opposite of light is dark, which is what happens when the sun goes away, or when you close your eyes and sleep.”
He nodded slowly, his eyes turned inward again.
…
He thought he understood.
The warm place must be called sun, because it made light, and there were trees living there. He grins happily, glad he knew a little bit more, and could share a part in what made trees live.
He looks at this other, this she – he knows it is a she, apart and unlike himself – and wonders if she knows why the sounds he had been making earlier were so important and saying them with his face did not make him happy. She seemed to have a fairly good understanding of sounds, putting so many together the way she did. Perhaps then he could go through that which opens, to explore.
“One, two, three…

Herodotus, on the Persians

Pg 62.

If an important decision is to be made, they discuss the question when they are drunk, and the following day the master of the house where the discussion was held submits their decision for reconsideration when they are sober. If they still approve it: it is adopted, if not, it is abandoned. Conversely, any decisions they make when they are sober, is reconsidered afterwards when they are drunk.

pg 63.
They consider telling lies more disgraceful than anything else, and, next to that, owing money.

(Who doesn't consider this evidence of complete brilliance? Shame the Greeks thrashed them, almost).


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