Radio National Transcripts:
The Law
        Tuesday, July 13, 1999
Register of Child Sex Offenders; Finders Keepers?; Crime of the Century


Damien Carrick: Hello, and welcome to The Law Report. I'm Damien Carrick, filling in for Susanna Lobez.

This week on the program, registers of child sex offenders: what can they actually achieve? Legally speaking, are finders keepers? And we look at what Americans widely regard as The Case of the Century.


Damien Carrick: Last month, the Australasian Police Ministers' Council endorsed the development of national databases to hold fingerprints and DNA, and a register of child sex offenders. It's envisaged that a register of child sex offenders would contain up-to-date information on a convicted offender's name, address and workplace. The details of the scheme are yet to be finalised but it's expected that the information will only be available to police.

But according to Sydney University Law School criminologist, Mark Findlay, such a register would be largely ineffective.

Mark Findlay: It would, as has happened in the States, be some form of record whether it's written or digital or kept on Internet or whatever, some form of record of the last known address of child sexual offenders. Why I think it won't work is that there are questions about the accuracy and currency of the data, but there's also some difficulty, I think, in associating the desire that this data will actually protect society with the facts that it would or would not.

Damien Carrick: Surely it would be a useful tool? Say you've got a man fitting a certain description, driving a certain car, loitering around a primary school, wouldn't this be a useful investigative tool in identifying and locating this person, and taking steps to avert any potential crimes?

Mark Findlay: Well we don't have on the statute books in this State, many laws that allow us to involve the police in preventive activities. There's also I think a real potential for this information to be linked to other forms of data which the police or other government agencies might have, in order to build up, if you like, a broader character picture of the individual concerned, but I think more importantly, the information might become, if you like, a general character measure, so that prospective employers, people who are advancing credit, individuals who might be interested in some sort of commercial arrangement with the person on the register, would go to that information. There is in Australia a problem here beyond that which the Americans face, and that is we don't have complex privacy laws, or Bills of Rights that would otherwise protect the improper or the inappropriate use of this information.

Damien Carrick: Megan's Laws in the USA are far more draconian than anything being contemplated here. As I understand it, they involve residence within a five-mile radius, or five-kilometre radius of where a convicted offender might be moving into, being informed of his moving into the area. How does that system work?

Mark Findlay: Well it varies State-to-State; in some States such as Virginia, there is an Internet-based register and on the movement of a registered individual from one place to another, the local government authorities are notified, and that information is then circulated around the neighbourhood. And so what you have here is, if you like, a continual reminder for those who would otherwise associate with such a character that he's in their area. This is not what's being proposed in Australia, nor would it even be technically possible I think here. But it's important to remember with a number of the American examples, they started off with a pretty low key approach to the registering of this information, and then with pressure from victims' lobbies to give them more information and to give them more access and more warning, the technology increased and the scope of the law was advanced.

Damien Carrick: But we do know for a fact that child sex offenders have a high rate of recidivism, surely in light of that information you need to take steps, special steps, special steps to avert the possibility of re-offending?

Mark Findlay: If you talk about recidivism rates, the recidivism rates for domestic violence abusers is as high or higher than that which you'll find for sexual assaulters and paedophiles, but nobody's suggesting that this sort of register should occur for them. The same is the case with drink drivers, and there's certainly been no suggestion of a register for these sorts of individuals. So while the recidivism issue is an important one, we're dealing here with a situation where it is used to selectively justify the imposition of what is quite draconian legislation against a particular class of offender.

Damien Carrick: Philosophically, if a piece of legislation does impinge upon the rights of those with criminal records, if that legislation might avert a serious crime from taking place, shouldn't we experiment with such laws? We're currently having a debate about safe injecting rooms, about decriminalisation of drugs. Why not experiment along these lines with this sort of issue?

Mark Findlay: Well there's no suggestion that this is going to be an experiment, and there's absolutely no suggestion that it's going to be monitored. And in fact I'd suggest it would be extremely difficult to monitor this, except if you did it on the basis of an offender-by-offender study. I think that it's necessary for us to be creative in relation to criminal justice strategies, but I think with this strategy, particularly one which has been so widely used in the States, we're right to ask, 'OK, where's the evidence of its success in other jurisdictions?' The surprising thing is, we don't seem to have evidence that would support its continuation.

Damien Carrick: Associate Professor, Mark Findlay.

Not everyone shares that view. Howard Brown is the Legal Officer with the New South Wales Victims of Crime Assistance League, or VOCAL. He believes that such a register would be a benefit, and as a society we have to think very carefully about the rights of the collective, as well as those of the individual.

Howard Brown: I understand, and I appreciate the argument provided by civil libertarians, that something of this nature impinges upon the rights of a past criminal, and they stress the past criminal aspect of it. Our view has always been though, that we don't have a great difficulty in relation to civil liberties, but we do question whose civil liberties. Are we talking about the civil liberties of a single perpetrator, or are we talking about the civil liberties of a group of people, predominantly children, who are not in a position to provide an adequate defence to themselves? It's always been our view that in a democracy, majority rules, and so therefore if we are concerned about the welfare of our children as a group, I believe that their rights should always outweigh the rights of an individual, to the point that it is reasonable.

Damien Carrick: Wouldn't there be scope for abuse from a register such as this?

Howard Brown: Any system is always open to abuse, and as a result you always need to have checks and balances in place. There is always going to be scope I suppose, for some degree of harassment; that if you look at the history of offenders, especially in relation to sex offenders, it is very difficult to secure a conviction, and it is my view that police, being aware of that, are unlikely to harass a person on the register because all it is going to do is inhibit their ability to prosecute in the event that an offence is committed.

Damien Carrick: As I understand it in the USA many jurisdictions started off with registers similar to the one being proposed here in Australia, and then gradually the system was beefed up to a full Megans-type law.

Howard Brown: I guess there is always scope for any of these systems to be expanded upon, and I suppose that's where a responsibility falls to a group such as ourselves to ensure that there is a medium approach. Our view has always been that the release of such information is better directed to a more closed community such as the operators of child care centres. So that those people who are highly at risk can be identified and then take the necessary precautions. The notification over in the States in my opinion is far too general.

We don't want the pendulum swinging so far to the right that we become extremist to the rights of victims, as opposed to the civil liberties of prisoners. But there has to be a balance.

Damien Carrick: According to Mark Findlay, that balance can be achieved, but not by channelling resources only into high-tech data bases.

Mark Findlay: We need to have post release supervision and post release strategies that effectively monitor and effectively support offenders when they return to the community. It would not be, I think, surprising to most people in my position, but it would be very surprising to most people in the community that most offenders on release simply get pushed out the prison gates with a minimum amount of money and told, 'On your way.' Now if we were serious about wanting to monitor and to, if you like, support offenders on their return to communities, support in a way which protects the community as well, we would have a genuine commitment to post release programs, and no State in Australia does those few programs that do exist are fast diminishing.

Damien Carrick: Mark Findlay, Associate Professor at Sydney University. And before him, Howard Brown of VOCAL.


Damien Carrick: Have you ever fantasized about digging up treasure in your backyard, stumbling over a bag stuffed full of money? Or even finding an archaeological or scientific gem half buried in a sand dune? But if you did, have you thought about what your legal entitlement might be? Are finders keepers?

Well two tenants on a property outside Bendigo in Central Victoria were recently digging holes for fence posts, when they stumbled over 130 gold sovereigns, minted sometime between 1855 and 1931. The pair sold some of the coins and this was discovered by police, who have now charged the pair with theft. The police are relying on the ancient common law principle that treasure trove, (that's buried gold and silver) belongs to the Crown and not the finder.

The criminal charges are still before the courts, and obviously we can't talk about those. However we can talk about the legal principles which govern who has the best claim when finders stumble across items of value. I asked Lecturer in Property Law at Monash University, Joycey Tooher, legally speaking, are finders keepers?

Joycey Tooher: Well they can be, but not always. There's another bit of folk lore here that says possession is nine-tenths of the law. Well that's not strictly true. But I can say to you that possession is a very powerful concept. So anybody who takes possession, theoretically has a title. But you need to also remember that title is relative in our law. Someone will have a better title than someone else, and someone will have the best title. So a finder will have a relatively better title than someone who steals from them, but generally they won't have a better title than the occupier of your land where they found the object, or the true owner of the object.

Damien Carrick: Now quite a unique find has been made in Central Victoria. What do we know about this situation?

Joycey Tooher: Well as far as I understand, some gold coins were found by a tenant who was digging on the property that the tenant had leased. The tenant then sold the coins and is now facing prosecution for theft. And the tenant's argument is that he believed that finders were keepers.

Damien Carrick: And what actually is the law which governs digging up treasure on one's property?

Joycey Tooher: Well the civil entitlement in this case would depend on the law of treasure trove. And treasure trove automatically vests in the Crown. Treasure trove is a technical legal term used to describe objects, usually coins, but they don't have to be, with a minimum gold or silver content that are hidden in the earth and whose owner is unknown.

Damien Carrick: Does the owner of the land have any claim over the treasure trove?

Joycey Tooher: No. The treasure trove, irrespective of where it's found and who finds it, automatically belongs to the Crown.

Damien Carrick: So the Crown in this case, because it involves buried treasure, has an overriding possessory interest. How did this quirky rule develop?

Joycey Tooher: In British history you know there were a lot of conquering invaders, for example the Romans. As soon as they smelt trouble, they'd bury their gold and the silver and their coins and their artefacts, so there was a lot underneath the soil. So it's a very important thing that the Crown claimed ownership of treasure trove, and how it works these days is that the Crown normally rewards an honest finder, by giving them the equivalent antiquarian value of the property that's found. The reward incentive is really to enable the Crown to retain the cultural and historical value of these items.

Damien Carrick: So in the case of the gold sovereigns which were found on the property in regional Victoria, because of this treasure trove rule that we have at common law, possession automatically vests in the Crown?

Joycey Tooher: That would be the case. If they are in fact treasure trove the Crown has a prerogative right to claim them as owner.

Damien Carrick: And on that basis, the Crown can say because the two men took possession of the sovereigns and allegedly sold them on, or sold some of them on, therefore they committed theft. Is that the Crown's argument?

Joycey Tooher: As far as the criminal law goes in relation to treasure trove, there is the statutory crime of theft, and under that the Crown would have to prove they dishonestly took the property and that will depend on subjective evidence. That is, if they at the time of taking they honestly believed they had a right to take it, regardless of whether the law gives them a right to take it, they wouldn't be dishonest. That's the first point.

The other point is the Crown also, to satisfy the statutory crime of theft, has to prove that it was property belonging to another person, and that gets a bit tickly, but it could be established.

Damien Carrick: Of course we can't talk in-depth about the criminal proceedings here. It's possible that these two finders may end up actually with the sovereigns that they've found.

Joycey Tooher: Well that's true. The Crown usually rewards honest finders, and it may do so by giving them the value of the coins, or if it's got a lot of these coins, it may not need them and just return them to them.

Damien Carrick: With this juggling of possessory rights, how does it work when we're not talking about treasure trove, when we're talking about say, cash?

Joycey Tooher: You might recall the case of money found at Balaclava Station in Melbourne in January 1996. The person found $200,000 stashed in a plastic drum on land adjacent to the Balaclava Railway Station. The money was handed in to the police, and a few days later, someone else who'd heard about this remarkable find, went looking in the same place for more money, and believe it or not, found another $200,000 hidden in the same way. The second person also handed the money to the police.

Now the land on which the money was found belonged to the Public Transport Corporation, and at the time of finding, these lucky finders had no permission to be on the land, so they were technically trespassers . But nevertheless, they got to keep that money. The true owner of the $400,000 never claimed it, and under the law relating to finders, the Public Transport Corporation as owner of the land, had a better entitlement to the property but it chose not to contest the finders' claim.

Damien Carrick: Why do you think that might be?

Joycey Tooher: I really don't know. But the matter was ultimately sorted out in the magistrate's court, because the finders had handed the money in to the police, and understandably, the police were quite reluctant to hand the money back. They didn't know who was entitled to the money, so they applied for an order in the magistrate's court as to who should get it. And there were no competing claims, so the magistrates made an order to release the money to the claimants. Now it was finders keepers in this case, but only because the party with the better title, and that would have been the Public Transport Corporation, did not bring a claim.

Damien Carrick: What about items of cultural or historical significance, or scientific significance. How does the law deal with those?

Joycey Tooher: Well if they're not treasure trove, then you have to rely on the General Law of Finding. And actually there was a case in Western Australia in 1993 where a little 9-year-old boy was on a family holiday on the foreshore of a Western Australian beach, and he was digging away in the sandhills; he and his cousins dug up a 2,000-year-old fossilised elephant bird egg, which had possibly drifted to the Australian shores from Madagascar. Now the elephant bird was three metres tall, it weighted 450 kilograms, so you can imagine that the egg was huge, it was about 150 times the size of a normal egg. Private collectors estimated the value of this egg to be about $150,000. The boy's father claimed ownership on behalf of his son, on the basis that finders were keepers. But of course that's not a legal principles. The land on which the fossil was found was owned by the Western Australian Government, and under the relevant legal principle, the owner of the land had the better title, and this was the Government.

Now the Government denied the finder's demand, and rightfully claimed ownership. However, it did offer the family $25,000 for the egg, although it wasn't obliged to do so. Well that offer was refused, and in an act of defiance the boy who found it hid it again, he buried it back into the sandhills, and refused to disclose its whereabouts until the Government improved its offer. And it took seven months of haggling before the parties agreed to some compromise. And what the Government agreed to do was to launch a public campaign to raise the $160,000 and the child then agreed to return the egg, which he did do. And unfortunately the appeal only raised less than $500, although the egg is safely in the Western Australian Museum.

Damien Carrick: So the poor little boy only ended up with $500 for his lucky find?

Joycey Tooher: Well yes, but even that would be a windfall to some people.

Damien Carrick: Joycey Tooher.

Time now for another in our series of Case of the Decade.


Your Honour, I was once the lady friend of Stanford White,

Chorus: He's the famous architect

Yes, that's right. He put me on a velvet swing

And made me wear, well, hardly anything!

Chorus: Oooohhh!

Damien Carrick: This week we travel back to the first decade of the century, to look at the notorious society murder of an American architectural genius. It's a tale of lust, talent and money that has been dubbed The Crime of the Century. It inspired the classic novel, 'Ragtime', by E.L. Doctorow, and it's been made into a film and even, as we've just heard, a Broadway musical.

Paula Uruburu from Hofstra University in Long Island, is our guide.

Paula Uruburu: Well it's an interesting case in a lot of ways. Stanford White was the most prominent architect in New York City. He had built Pennsylvania Station, the Tiffany building, the houses for the Vanderbilts and the Whitneys and he had built Madison Square Garden, which included a rooftop theatre. And in 1901 he met Evelyn Nesbitt, who was at that time a 15-year-old chorus girl who had come from Pittsburgh as a model, and she was sort of the first super model of the 20th century in America. She was on the covers of magazines and she was on calendars, and she was even on wallpaper and beer trays and pocket mirrors. And Stanford White saw her in a performance in a musical called 'Floradora', which was the most popular musical at the time, and Evelyn Nesbitt became his mistress.

They were carrying on this relationship and eventually broke apart, and that's when Harry Thaw an extremely wealthy family. He was an heir to a $40-million fortune. He began to pursue Evelyn and eventually he convinced her to marry him, and they got married in 1905. They were in New York in June of 1906. This is now almost four years after Evelyn had been with White, and Harry said that he had gotten tickets for a show at the Madison Square Garden rooftop theatre. So Evelyn and Harry and two friends of his, went to watch a performance in the Madison Square Garden theatre, and that night White showed up near the very end of the performance, it was opening night. The play was called 'Mam'selle Champagne'. And Evelyn noticed White come into the theatre, and she got nervous and she suggested that they leave, and they did get up to leave, but while they were walking towards the elevator, White unsuspectingly, sitting at his table, his usual table, and Thaw came up behind him and without saying a word, he fired three shots into White, killing him instantly. Women started screaming and the next thing he knew, Harry Thaw had lifted the gun up over his head and he supposedly exclaimed, witnesses said, 'I did it because he ruined my wife!' And so he was taken off to jail and then the preparations were begun for what was already being called The Trial of the Century.

Damien Carrick: What defence did Harry Thaw run?

Paula Uruburu: The defence that was used in the first trial was this unwritten law, Harry claimed that he had done it for the honour of his wife, and even though he had been with her before they were married, and in fact after several months it was a hung jury, Thaw was sent back to prison and a year later they had a second trial, during which time Harry Thaw was then found innocent by reason of insanity.

Damien Carrick: Legally speaking, did the case break new ground?

Paula Uruburu: It marked the end in fact of the use of that what was already considered an antiquated defence, the unwritten law.

Damien Carrick: So up until this case, the unwritten law, if you like, had been accepted?

Paula Uruburu: Yes.

Damien Carrick: But after this case, it became a lot more problematic to run that defence?

Paula Uruburu: This is the great sort of indicator of the cataclysmic shift just in American society. From one year to the next, this second set of laws decided we can't even go with that defence. By 1908 they said no-one is going to believe this defence, and it's not a valid defence and it's not going to be substantial enough to keep them from going to the electric chair. So the big stumbling block in the first case for the lawyer, who in a sense, he was sort of forced to try to go that route because Mrs Thaw, the mother of Harry, was determined not to let out any of the family skeletons about other family members who had suffered from insanity and who had been put in asylums. By the second trial, the lawyers sat her down and said 'Look, the defence that was used in the first trial of this unwritten law, it's an outdated, antiquated Victorian notion, it's not going to help. Your son is going to go to the electric chair. What we need to do is mount a defence based on insanity.'

In this case, instead of trying to testify that he had been temporarily insane, or find some way to use that, they just said he's been insane since he was young, and he clearly doesn't know his actions, and that was the way that he was acquitted, but by reason of insanity, and the stipulation was that he be sent to the Insane Asylum.

Damien Carrick: What was the legal impact of the case long-term in America?

Paula Uruburu: It was the first case where there was such a prominent use of the alienists which were the precursors to psychiatrists, the people who were there to determine whether Thaw was sane or insane. The second important thing to me is the way that they used the media. Teddy Roosevelt who was the President at the time, tried to prevent them from publishing any of the trial testimony in the newspapers because he said that it was affecting the morals of the youth in the country and it was preventing people from going to work, because everyone was caught up in the drama of this trial, but of course you have a free press, you can't stop them from printing these things. So of course they couldn't do that.

Damien Carrick: People often draw parallels between this trial and the OJ Simpson trial. Why is that?

Paula Uruburu: In fact it's funny, because I remember when the OJ Simpson trial started, one of the things that they commented on among many things, was they started talking about what kind of clothes he was wearing and the kinds of shoes that he wore, and the sales of the kinds of shoes that he wore went up. And when the trials began with Harry Thaw, the newspapers started reporting what kind of clothes and what kind of hats Evelyn was wearing, and suddenly they were reproducing them and selling these hats and selling the clothes to women who wanted to dress like her, and they were selling postcards and they were putting out movies, and they were putting out books. I mean movies were barely in existence, and yet the Thaw family had commissioned a very prejudicial movie to be shown at the nickelodeons and just like in the OJ Simpson trial. Within you know, almost weeks of the murder, there would already be these pulp books, you know, the paperback-type of sensational books on the news-stands that people could buy and in the supermarkets. And the same was true of the Thaw trial. Within a matter of literally weeks and a couple of months into the trial, they already had books that people could buy. People wanted to read anything that they could. It was front page news for almost two years, because the two trials lasted that long.

Damien Carrick: The OJ trial captured the public imagination for a number of reasons, because it said a lot about contemporary America, you know, racial tension, the idea that money can buy justice, the media's obsession with celebrity and crime.

Paula Uruburu: Right.

Damien Carrick: Why do you think this case captured the public imagination?

Paula Uruburu: It's the fascination; it has all of the what I call the currencies of power that have always interested American culture, been part of American culture. You have sex, money, wealth, celebrity and youth. You know, the murderer occurring in the theatre I think also captured people's imaginations for a year after the murder. People were still going to the play, even though everyone said it was horrible, because they wanted to sit in the same theatre, in the same seats at the same table where White was shot.


And it's the crime of the century, crime of the century

Where did the world go? Whee!

Harry's in the asylem

Stanley's in heaven, and Evelyn gets publicity!

Crime of the century, crime of the century

Not such an awful thing.

Stanley's killed but my mother's thrilled,

'cause now I'm the girl on the -

Now I'm the girl on the swing.

Damien Carrick: A song from the musical 'Ragtime', inspired by the Harry Thaw murder trial. And before that, Paula Uruburu, from Hofstra University.

That's it for The Law Report this week.

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