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Cite as: (2007) 81(7) LIJ, p. 82


This month’s reviews cover business conveyancing, criminal laws, forensic investigation and Victoria’s third Chief Justice.

Business and Franchise Practice Manual

Phillip Hamilton, Business and Franchise Practice Manual, 2007, Leo Cussen Institute, pb $165.

Acting in a conveyancing transaction for the sale or purchase of a business or franchise raises a multitude of issues for practitioners.

These range from arranging for the transfer of or negotiating the terms of leases, the purchase of freehold, assisting in the arranging of finance, the transfer of permits and/or licences and dealing with the transfer of employees and their entitlements to more practical issues to do with the day-to-day running of the particular business.

As this text rightly points out, no two business conveyancing transactions are identical as each business has its own characteristics and require ments.

While it does not claim to be, nor could it ever hope to be, encyclopaedic in its scope, this book certainly contains a good compact coverage of the main issues that arise in business conveyancing transactions and the pitfalls which need to be avoided.

In addition to the purely legal position, the author provides valuable practical suggestions gained through many years of experience which assist in resolving commonly encountered problems.

The author starts by considering various business structures which may be used and examining the general advantages and disadvantages of each. This is followed by a section on acting for a vendor and then by one on acting for a purchaser.

The final two sections of the main work deal with the finalisation of the contract of sale and franchised businesses. The appendix contains helpful precedents such as the instruction sheet on sale of business, the LIV lease and sale of business forms, the statement by a vendor of a small business form and disclosure statement forms for both leases and franchises.

Whether you are a practitioner who deals with these often daunting transactions regularly, or one who deals with them only infrequently, this text should prove to be a useful resource.

By providing assistance with the identification and practical resolution of issues, reference to this work should ultimately help to ensure a smoother transaction for all parties.

PAUL FALZON

KAHNS LAWYERS

Criminal Laws in Australia

David Lanham, Bronwyn F Bartal, Robert C Evans and David Wood, Criminal Laws in Australia, 2006, The Federation Press, hb $125.

Criminal Laws in Australia is a well-presented, easily read book. It looks at “what is crime”, the purposes of criminal law, and “anatomy of a crime”, then goes on to cover, first, defences to crime.

Generally, criminal law texts follow an introduction with chapters on homicide, sexual offences, property crimes and simple offences, only then traversing defences. The authors explain their unorthodox approach by observing that rather than “leaving defences to come into play as a kind of afterthought”, this centre-stage positioning is founded in “the basic structure of criminal liability”, which “ ... involves three elements – actus reus, mens rea and a negative element, absence of a relevant defence”.

One of the main contributions this book makes is to recognise the importance of this third factor, and to devote a chapter to defences.

This is helpful, not only for academics and students, but for practising lawyers. It conforms to the way in which criminal lawyers are generally obliged to address the law vis-à-vis their clients. In many homicides, for example, the question is not whether the client (or accused) did the act causing death, but whether the victim contributed in some way. This raises issues of provocation and self-defence. Alternatively, the focus may be on whether the client (or accused) was drunk, lacked mental capacity or suffered from a mental disability.

In rape and other sexual offences, the focus continues to be on the victim/survivor or prosecutrix and her prior activities, actions during the alleged events, or conduct generally. This again precipitates a focus on defences.

Later chapters are devoted to “Homicide”, “Personal Injury Offences”, “Sexual Offences”, “Offences of Dishonesty”, “Crimes with Diminished Fault Elements”, “Preliminary Crime”, and “Accomplices”.

This is an intelligent book, not the least because, as the authors confirm, in the writing they engaged in spirited discussion, occasionally agreeing to disagree. Criminal law has been a site for contention and disagreement, propelling legislative intervention and numerous law reform reports. It is to be hoped that the authors continue their collaboration in future editions of this book.

DR JOCELYNNE A SCUTT

BARRISTER & HUMAN RIGHTS LAWYER

Written on the Skin

Liz Porter, Written on the Skin: An Australian forensic casebook, 2006, Macmillan Australia, pb $35.

Some of Australia’s most intriguing murder cases, including the Wales-King “society murders”, the Dupas case and the Jaiden Leskie case, are the subject of this book on forensic crime scene investigation.

Cinema, television and literature con-
firm our fascination with crime and its investigation.

Detectives in crime novels and on television are always seen to have a small list of suspects, unlike the police investigating Melbourne’s 1983 Ascot Vale rapes who had 177 suspects or the 18 months it took to find the Violet Town hit-and-run truck driver.

Forensic testing is simple in fiction. The tests are quick and the suspect caught within the allocated one hour or so of the movie or television series. The chapter “Reading the Fire” recounts how a Melbourne forensic scientist took nine months just to get the funding and assistance for a re-enactment of a suspicious fire.

The forensic scientists in novels and television programs also seem to lead dramatic lives. In real life the investigations and the lives of the professional investigators are far more laborious and mundane.

In a close examination of an assault victim’s body, a forensic physician “reads” the “work” of an assailant. A crime scene investigator notes the indentations made by a can opener on a can used to make a bomb, a forensic dentist analyses the teeth marks on a burglar’s chewing gum left at a crime scene.

Liz Porter’s book canvasses pathologists, chemists, entomologists, DNA specialists and document examiners and details, through case examples, how they have used their expertise to investigate and solve many interesting crimes.

This is an extremely interesting book for lovers of crime fiction and CSI dramas and a great endorsement for the Victorian Institute of Forensic Medicine.

A fascinating read of blood, bones, brain, organs, skin, teeth, fires, documents, insects (not for the squeamish) and crime scenes.

A must read for the budding CSI investigator in all of us.

GARRY MANN

SOLICITOR

George Higinbotham: Third Chief Justice of Victoria

JM Bennett, George Higinbotham: Third Chief Justice of Victoria, 2007, The Federation Press, hb $49.95.

This volume, another in JM Bennett’s series Lives of the Australian Chief Justices, continues the high standards of scholarly research and judgment to which his series has accustomed us. The choice of a series of biographies naturally limits the length of each, and each gives pride of place to its subject’s judicial career, but Dr Bennett amply compensates for these restrictions with the all-round high quality of his work.

I had awaited Dr Bennett’s biography of Higinbotham CJ with particular interest because of the latter’s somewhat ill-deserved status of “local hero” owing to his dissenting judgment in Toy v Musgrove (1888) 14 VLR 349 and for having made a colossal nuisance of himself with his monomaniacal denunciations of imagined intrigues and offences on the part of the Colonial Office against 19th Century colonial governments.

In fact, as Dr Bennett demonstrates, Higinbotham CJ was far more of an embarrassment to the Victorian government than he was a help to it, both in his wildly exaggerated claims against the Colonial Office and his various other eccentricities and “crotchets” (as people said in the 19th century). His defects as a politician, before his appointment to the Bench, were also considerable, and stemmed largely from an inability to compromise. Dr Bennett also deals with Higinbotham’s time as editor of The Argus newspaper and says what little there is to say about his childhood and youth.

Sometimes Higinbotham CJ is praised for bringing the perspective of a “political adult” (p218) to Victorian politics. In fact, as this excellent book demonstrates, a more accurate assessment would be “immature to the point of puerility” (p219).

It should not be thought, however, that the biographer spends all his time denouncing his subject. For example, it is most interesting to read of Higinbotham’s flowering as a judge, and adoption of a more judicial temperament and style, on reaching the highest office. Dr Bennett, however, also records one or two notable exceptions, such as his donations as Chief Justice, using the prestige of his office, to the trades unions’ strike fund.

GREG TAYLOR

FACULTY OF LAW, MONASH UNIVERSITY

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