Whitton, Evan --- "Justice or Money? How to Save the Law from Contempt" [1998] MurdochUeJlLaw 30; (1998) 5(4) Murdoch University Electronic Journal of Law

Justice or Money? How to Save the Law from Contempt*

Author:	Evan Whitton Author
Issue:	Volume 5, Number 4 (December 1998)

Ladies and gentlemen,

1. It is an honour to be asked to deliver the 1998 Murdoch Law School Address. It is doubly an honour to follow such eminent previous speakers as the Hon Edward Gough Whitlam QC, former Ambassador to UNESCO. His Excellency told the publisher at the launch of my book The Cartel: Lawyers and Their Nine Magic Tricks: "You know, your husband is half right about the law." "Yes," she replied sweetly, "and it's the right half."


2. Your distinguished Vice-President, Mr Timothy Hammond, advises that the address should "complement our legal education by presenting students with an insight to a topic which is not taught within a law course". I get the impression that law courses are a tiny bit thin on legal history; there seems to be a view that English common law is the best system, and that's the end of it.


3. Can I suggest, with very great respect, that this tends to re-cycle ignorance: I have never met a lawyer or a judge who could tell me why, or even when, the adversary system was invented. (I have not met your Justice David Ipp, who does know.) I put the questions to the famous London silk, Sir John Mortimer; he was wrong on the reason and five centuries out on the time. His Rumpole of the Bailey is of course as hilarious as Perry Mason: both would have us believe that common law trials are about truth and justice.


4. In The Rainmaker, John Grisham, has a law student say : "It's [Professor Smoot's] opinion that all students enter law school with a certain amount of idealism and desire to serve the public, but after three years of brutal competition we care for nothing but the right job with the right firm where we can make partner in seven years and earn big bucks. He's right about this."


5. On the other hand, Justice Geoffrey Davies, of the Queensland Court of Appeal, recently told graduates that lawyers are members of a profession which has obligations additional to making money. He said: " ... the law is a public calling imposing on all who practice it a duty to advance the public good ... What we need to re-examine is whether our legal system is providing justice to those who are affected by it ... In our civil system are we providing reasonable justice to persons of average means? And in our criminal system do we have a reasonable balance between the desirability of convicting those who are guilty and fairness to a person accused of an offence? The answer to both of these questions, it seems to me, is clearly no."


6. Incidentally, Justice Davies gives some of his views on the law to that snappy cross-examiner, Mr Ross Coulthart, next Sunday morning on Channel 9's Sunday programme. Others interrogated include your humble servant and the man who famously got the dingo off. Mr Coulthart's most recent achievement was to force an inquiry into assertions that the tax office has been penetrated by organised criminals. I'm almost certain he was not referring to tax lawyers.


7. Justice Davies is saying the problem is that the law is unjust and unfair. He is not alone; people in the English-speaking world are beginning to think the unthinkable: there must be some intrinsic defect built into our system which defeats justice.


8. This view is the product of several factors, including books and films by John Grisham and other lawyers, the televised O.J. Simpson trial, our Lindy Chamberlain and John Elliott cases, and such English travesties as the execution or incarceration of innocent people such as Timothy Evans, Derek Bentley, the Guildford Four and the Birmingham Six.


9. I believe the first step in retaining your idealism and advancing the public good should be to inform yourselves on where the problem came from and how other legal systems work. The Cartel regrettably seems to be the only available source; another publisher, John Kerr, kindly says it falls into the Dr Spock/Germaine Greer category of overdue books.


10. Here is an heroic, if inelegant, attempt to compress into a sentence the origins of our problems of inbuilt injustice:


11. A tiny cartel of lawyers and amateur judges, who were mainly interested in money and status, effectively decided in the 13th century that truth does not matter, and turned the law into a game late in the 18th century by inventing a truth-obscuring adversary system, by giving lawyers control of civil and criminal trials, and by concocting a series of truth-defeating rules for concealing relevant evidence.


12. The result, and perhaps the intention, was that hard-working senior members of the cartel can make a lot of money at the Bar before retiring to the status and relative sloth of life as an untrained judge. The downside is that miscarriages both ways were built in to the system: 80 per cent of known serious criminals get off, but one per cent of prisoners are innocent.


13. Legal spin doctors say some inconvenience is necessarily the price we pay for the benefits of legal protection. What protection? The image that haunts me is of poor Derek Bentley, an innocent lad with a mental age of 11 who was sent to the gallows by a police verbal and the sexually depraved Lord Chief Justice, Rayner Goddard. When the hangman came for him on the morning of Wednesday, January 28, 1953, his face "glowed with an instant of eagerness"; he thought he had been reprieved; that what is laughingly called British justice had triumphed after all. A minute later he was dead on the end of the rope.


14. I expand a little on legal history. I wonder how many of you can identify the month and year which marked the fork in the road between the European system and the English system? Answer: November 1215 AD. Shortly after that date, European judges agreed that a search for truth is central to justice and they adopted a rational method of investigating it, but the cartel refused to follow the Europeans. One reason, according to Professor R.M. Jackson, was "an insular dislike of things foreign". That is, Wogs Begin at Calais.


15. Does truth matter? Judge Harold Rothwax, a civil libertarian who sat on the New York State Supreme Court for 25 years, says: "... truth must be a primary goal of criminal procedure. Indeed, truth must be the goal of any rational procedural system ... Without truth there can be no justice. Our system is a maze constructed of elaborate and impenetrable barriers to truth."


16. Nonetheless, the law school at the University of Queensland is adorned with the words of Esdras: "Great is truth, and mighty above all things." I told them they could be done for false advertising.


17. Corrupt means broken or turned from a true course, perverted. If, as Judge Rothwax says, a search for truth IS fundamental to justice, it follows that a score of racist lawyers and judges corrupted the system in the 13th century, and that we have been stuck with it ever since by the nonsensical rule of precedent.


18. But if the legal system is corrupt, why has it never been properly reform? Lawyers got control of Parliament in the 14th century and cut off the King's head in the 17th. Since then, to borrow a line from Robert Stowe England, we have more or less had government of the lawyers, by the lawyers, and for the lawyers.


19. England's Lord Chief Justice was always a politician until 1946, when Rayner Goddard was the first non-politician to be appointed. This was not necessarily an advance; Lord Goddard seems to have been a sort of judicial serial killer. Please do not ask me what form his sexual depravity took; this is a family show.


20. Perhaps you should get your friends in the History Department to tell you something about the 18th century; it may help to explain why, at the start of the 19th, the European system marched forward and the English system marched backwards.


21. In Europe, it was an age of enlightenment and reason, and one of its products was the Napoleonic Code, an improved and humanised version of the investigative system. The system, which is used by 1000 million people in European countries, their former colonies, and Japan, is by no means perfect, but at least it does not have a cartel. It does believe that a search for truth is basic to justice, and it does not treat the law as a game.


22. In major cases, a trained judge supervises the police investigation, and his dossier on the case is available to lawyers for the suspect at all times. Under such a system it is unlikely that poor Derek Bentley would have got before the dread Lord Goddard. I don't know why lawyers in civil liberties groups do not agitate for a similar system here; it could be brought in by a stroke of the legislative pen.


23. At the trial, the adversary system allows lawyers to advance the cause of their clients in every way up to the point where the lawyers might interfere with the truth. That point is cross-examination. In the hands of a neutral judge, cross-examination is a great engine for finding the truth; in the hands of a partisan lawyer it is a great engine for muddying the waters.


24. The judge does not conceal relevant evidence, including that of the suspect; expert witnesses are responsible to the court; in some cases jurors sit on the bench with the judge and they give reasons for their verdict and penalty. As the Germans say, without reasons there can be no valid judgment.


25. The system tend to protect the innocent and it puts away 90 per cent of known serious criminals. One of the cartel's great lies is that in Europe you are guilty until proved innocent. (In England of course you are innocent until proved Irish.) In fact, Justice James Burchett, of the Australian Federal Court, says he understands that French trials are fair and their verdicts are generally accurate. This means our trials are even more unjust and unfair than Justice Davies might suspect, and that our verdicts are wildly inaccurate.


26. Which takes us back to England, the cartel and the 18th century. It was an age of corruption and Whig oligarchy; two of its products were: 1. Laws which protect the corrupt; and 2. The procedures and rules which turned the law into a game.
    
    
27. When Dafoe invented modern journalism in 1704, it was instantly seen as a threat to the power of the two arms of the cartel: politics and the law. The usual dodges were used to silence the Press: secrecy, taxation, bribery, the law: seditious libel was defined as "written censure upon any public man whatever for any conduct whatever or upon any law or institution whatever". Lord Mansfield, who sat in corrupt Cabinets as a politician and Lord Chief Justice (1756-88), invented a lie worthy of the late Joseph Goebbels: the greater the truth the greater the libel.


28. As reporters, we are but the humble messengers, and we incline to the view, with very great respect, that the law cannot do its own job of delivering justice to the community, and will not let the media do its job of serving the community by exposing wrongdoers, particularly organised criminals and those who subvert democracy by corruption, not necessarily different persons.


29. The difficulty of alerting the public to some shareholders in WA Inc was a hangover from the 18th century attitude to libel: the High Court's judgment in Lange (1997) retains, inadvertently no doubt, seven false presumptions which make a libel trial unjust and unfair to anyone who tries to tell the truth about such types.


30. The lying Lord Mansfield was also a member of the cartel which began the process of turning the law into a game. Geoffrey Robertson QC calls his memoirs The Justice Game; Stuart Littlemore QC, former arbiter of propriety in journalism, says: "You really feel you've done something when you get the guilty off." Peter Faris QC told an international Criminal Law Congress in Melbourne in 1996: "In my view, the major criminal defences, in order of importance, are as follows: 1. Delay. 2. Confusion. 3. Allegations of conspiracy by the police and prosecuting authorities to conceal and tamper with the evidence, thus raising a reasonable doubt."


31. Charles Dickens observed of the civil game: "The one great principle of English law is to make business for itself." Discovery is the process by which lawyers charge $450 an hour or more to move documents from one law office to another. In a case involving BT, Telstra and the State of New South Wales, it was reported in June that the costs for discovery alone were thus far no more than $19 million. I am not sure whether such moderation was applauded or condemned in the profession.


32. I touch briefly on fatal flaws in the three elements of the game. The adversary system allows lawyers to cross-examine and thus obscure the truth. The basic technique is to shift the goalposts, often from accused to victim.


33. The flaw in taking control of trials away from judges was that it put it in the hands of people who are necessarily more interested in winning than in truth and justice. Lawyers decide what witnesses will be heard and what evidence they will give, including "expert" witnesses known in the US as "saxophones", with the lawyer playing the tune. Hence Spencer and Flin's remark about the "deeply-corrupting effect" of the adversary system. The surprise is not that the cartel organised this system, but that they have got away with it for 200 years.


34. The judges of course still had the status and control of the court, but two of their major tasks were now to look judicial and stay awake: Lady Coleridge sat on the bench and kicked His Lordship when he went to sleep; Lord Reading wrote letters; Lord Thankerton took up knitting.


35. Judge Rothwax notes the flaw in concealing relevant evidence. He says: "Suppressing evidence is suppressing truth ... Without truth there can be justice." Evidence was not concealed before the cartel's revolution, judges chatted informally with jurors to see how they were thinking, and put them straight if they were going wrong, perhaps on weight.


36. But when lawyers got control of trials, the cartel decided that jurors were so deficient in intelligence and sense of fairness that it would be fairer to subtract certain relevant evidence rather than let them weigh it. Whatever Mr Littlemore may think, this makes it easy to get the guilty off.


37. The rules seem as irrational as much of the English system. The right of silence protects the guilty only, and was successfully exercised by Justice Lionel Murphy and the dingo. The rule against similar facts conceals patterns of crime, and is particularly helpful to lawyers for rapists and organised criminals. The rule against hearsay hides the evidence of dead victims, e.g the former wife of O.J. Simpson, but not that of dead judges. The Christie discretion allows the suppression of virtually all evidence tending to prove guilt. The discretion to conceal evidence improperly gained punishes the victim and the community rather than erring authorities.


38. Concealing evidence led in turn to the crime of contempt of court: publication of evidence that will be concealed. This crime does not exist in Europe, where evidence is not concealed, and it barely exists, apparently without undue harm, in the US, which has a constitutional guarantee of freedom of information.


39. Like libel law, contempt law has false presumptions which, in my view and with very great respect, make contempt trials unfair to the alleged contemnor. One presumption is that jurors were aware of the publication; another is that they were affected by it; a third is that you can be guilty without having a guilty mind. Nor are jurors allowed to sit on a criminal contempt trial. Is this because they might take a dim view of the basis of the charge: that they are too stupid to hear all the evidence.


40. As a Rugby reporter, my feeling is that great Rugby players cannot be all bad, but I am disconcerted to find that the court headed by a former captain of the West Australian Rugby team seems to be seeking the dubious distinction of wresting from Sydney's Gleeson court the title of contempt capital of the world.


41. If you have tea with your distinguished patron, I suggest you invite His Excellency to discuss the intellectual basis of contempt law. If it is a crime for an organ of the media to inadvertently fall into error, you might ask him why it is not a crime when Chief Justice Sir Garfield Barwick inadvertently makes a trifling error - that a profit of $2782 was a loss of $186,046 - which cost the revenue no more than $900 million.


42. In addition to concealing relevant evidence, the cartel invented a presumption of innocence which makes less sense than a presumption of agnosticism, and a formula for the standard of proof which means the defence lawyer can win by inserting a doubt in the mind of only one juror. Much of the $6 billion a year you pay for the criminal justice system might as well be sluiced straight into the sewers.


43. In view of the fatal flaws built into the game, it is hardly surprising to find that many in your profession regard the system with contempt. Judge Richard Posner agrees with the proposition "that most legal academics ... are among the few people left in their profession who take law seriously".


44. I think The Cartel: Lawyers and Their Nine Magic Tricks raises six major questions. The European system says YES to each; the English system says NO.


1. Should judges be trained as judges from the beginning?
2. Is a search for truth fundamental to justice?
3. Should trained judges, not lawyers, control trials?
4. Should lawyers be prevented from obscuring the truth?
5. Should jurors hear all the relevant evidence?
6. Should jurors give reasons for their verdict?


45. Which system is right? Those great comparative lawyers, the Mafia, who have experience of both systems in Sicily and New York, are in no doubt. In a family show I can't give you the exact words used by the Mafia's Mr Joseph Gambino; perhaps I can say it is his view that the English system sodomises police, prosecutors and judges, and hence the community.


46. Lawyers, in their shifty way, have accused me of trying to resurrect Tomas de Torquemada. What I do suggest is that we revert to the system as it existed in England until the beginning of the 19th century, but with some important modifications. Thus:


1. That we accept that a judicial search for truth is fundamental to justice, including at the pre-trial stage.
2. That we dismantle the cartel by training judges separately from lawyers and giving them back control of civil and criminal trials and cross-examination.
3. That we wind back the adversary system to the point where it does not interfere with the truth.
4. That we abolish the rules for concealing relevant evidence by putting jurors on the bench with the judge.
5. That judge and jury give reasons for their verdict and penalty.


47. Is change possible? Can truth and justice be achieved in the face of a tiny but powerful minority of vested interests who, for obvious reasons, prefer the status quo?


48. Professor Bent Flyvbjerg says in Rationality & Power: Democracy in Practice (Chicago University Press 1988) that power is not concerned with rationality, truth or reality; it creates its own reality by myth, misinformation and rationalisation. That sounds like the cartel to me. But Professor Flyvbjerg found that citizens were able to turn the situation round once they understood how those with power work to misrepresent reality.


49. At the launch of The Cartel, Dr Edward de Bono said the English car industry died because it did not evolve. The condition of the English system is likewise terminal; you can give it a happy release by persuading citizens to vote YES to a one-line question in the Constitutional referendum on the republic: "Do you believe that a search for truth is fundamental to justice?"


50. I turn to the cost of Justice Davies' injunction to advance the public good. I believe lawyers can have justice AND money, if not quite as much of the latter. Giving control of trials back to judges, modifying the adversary system and abolishing the rules of evidence will diminish the emolument of lawyers at the top end of the trade. A million a year is nice, but most people can rub along on $200,000.


51. The upside is that accepting that judicial search for truth is central to justice will help keep the innocent out of prison and put in more of the guilty. In civil litigation, paying a trained judge $100 an hour to investigate the truth of claims, as in Germany, will bring the law within the reach of more people.


52. The new system will require trained judges and more of them. Their work of supervising the police investigation and handling the investigation at trial should at any rate be more interesting than knitting. In France there are signs: Why not be a judge? Why not?


53. Finally, we all yearn to look up to the law as our highest calling; I hope these remarks will encourage some law students of this great university to help lead English law out of the morass in which it has been sunk for eight centuries.

*1998 Murdoch Law School Address - Murdoch University, August 12, 1998