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Justice and History

We are often told that our Justice System has its origins in the lofty Judaic/Greek models.  This is at best a half truth.  Pre-Classical Greek civilisations believed Justice was the product of capricious gods who needed to be appeased or placated by suppliant sacrifices.

The Epic of Gilgamesh is putatively the earliest form of literature extant.  He was an historical king of Uruk in Babylonia, on the River Euphrates in modern Iraq; he lived about 2700 B.C.  Partial remains of Sumerian broken clay tablets, discovered in the late 19th C., The Epic of Gilgamesh is a narrative tale about the friendship between the King of Ur and Enkidu, a feral human. A priestess, the Goddess of Love, Shamhat, a sacred prostitute, offers herself to Enkidu, the wild brutalised man, and they make love continuously for seven days.  Enkidu is transformed by that experience, and becomes socialised, humanised and empathetic. When Enkidu decides to marry, the two strong men who fight over the right of the King to sleep with Enkidu’s bride on her first night.  When the fight ends in a draw, the two men, Gilgamesh and Enkidu become great friends and travel the world together.

It’s a kind of anti-Garden of Eden story, or the opposite of that, where instead of sexuality being a fall, it’s an initiation into what it means to be human.  It can also be seen as a demand for equitable justice.

Early in the seventh century AD, Hesiod, a contemporary of Homer, comments on the urgent demands of the ordinary peasants not to be victims of the arbitrary jurisdiction of the aristocrats.  Oppression and injustice were the growing causes of complaint.  Blood vengeance with its curse of constant feuds among the clans can only be avoided by responsible and fair minded rule of law. (Ehrenberg: From Solon to Socrates)

 Walter A. Bordenn, MD, contends that:

 our western legal system evolved from the need to tame wild justice that was tearing apart early civilization. Justice as we know it dates back to sixth century B.C. Athens with the genius of Solon. Poet, philosopher, soldier, merchant, practical economist as well as social critic he came to power in revolutionary times with a mission to put an end to the cycles of retaliatory violence that had plagued Greece for centuries. Athens wanted peace and order, and turned to the man who had communicated his vision of social order and the need for justice through his poetry.

Then as Rome declined and fell, civilization sank into the darkness of "the worst of times" and justice seemed to be extinguished by societies ruled by greed, cruel power, and raw vengeance. The Furies retook Justice. Primitive magical thinking and belief in the supernatural buried the scientific attitude. Then Demonology and witchcraft metamorphosed into a malignant scape-goating preoccupation that became twin to the Plague and rendering human understanding comatose.

Solon (638 – 558) laid the foundation of Athenian justice and democracy.  He believed in the middle way, equity and straight justice.  Social peace depended on reasonable laws for nobleman and commoner alike and the jurisdiction bound to them.  The laws became known as Solonian due to his authority.

The largest number of his laws concerned family law which he believed to be the foundation of Athenian society; the permanence of the family.  He preferred the middle way in resolving disputes to continue the existence of the family.  Preventing violence and maintaining public order were stated purposes of law.

(Ehrenberg: From Solon to Socrates)

The influence of Athenian democratic justice can be seen today in every courtroom in our land. However, we would not have that influence but for the genius of another man coming some 100 years after Solon. Aeschylus was also poet, philosopher, soldier, and like Solon, a fighter for justice, but his genius lay in drama. As Solon was creator of democracy, Aeschylus was creator of tragic drama and he used his art form as a weapon for democracy, law, and the peaceful resolution of conflict. During his time political upheaval threatened to sweep away democratic justice.

Amidst that first crisis in 458 B.C., Aeschylus produced the Oresteia, the greatest tragic drama in human history. It is a window into the evolution of Athenian justice, the principles underlying its law, and the threats to justice inherent in human passions. The play is a transcendental plea for democratic justice. The third part of the trilogy, its final act portrays a courtroom trial in which the mental state of the defendant is central with all the elements of what today we call legal insanity. The Oresteia, immortalized and carried the message of justice through millennia. This powerful drama kept alive the idea of humanistic justice, through the eclipse of the Roman Empire and submersion in the Dark Ages, through the Renaissance when the classics resurfaced, to the British Isles, and to our courtrooms. The Oresteia became the vital voice of Solon’s justice that enabled it to survive.

Isaac Ray Corner, A history of justice: origins of law and psychiatry,  Walter A. Bordenn, MD

David Johnston argues that the history of justice in the West can be understood as a history of changes in, and challenges to, the idea of justice as reciprocity.

Plato in the Republic   The obedience of the impulsive parts of the soul to the rational parts is taken as a model for justice in the political arena.  Plato already was perceptive enough to see Justice could be used as trickery. The character Thrasymachus argues that justice is the interest of the strong—merely a name for what the powerful or cunning ruler has imposed on the people. The rich and powerful make the laws to preserve their positions from the “little people”. 

Aristotelian discussions of distributive and corrective justice focussed on reciprocity.  In On Rhetoric Aristotle argued that there are three controlling factors in persuasion:  Logos, Pathos and Ethos.

Logos is the intellectual dimension. He said that as rational beings we like to know (or think) that our beliefs are grounded in reality. But logos alone does not move people to adopt new beliefs or behaviours.

Pathos, the emotional or psychological dimension, also plays a role. Beliefs are formed not only by rationalisation but also by "attraction". Arguments we "like", whether because they are presented beautifully or because they resonate with our hopes, will usually be more persuasive than ones we find unpleasant.

Aristotle reserved a special place in his theory for what he called ethos, the social or ethical dimension. Not only do we tend to believe ideas we like, we also tend to accept the ideas of people we like.

The Stoics introduced the idea of universal justice, the idea that the concept of justice applies to relations among all human beings.

Christianity chipped away at the idea of unequal status dictated by nature. This was followed by Hobbes, who posited both that humans are, in an important sense, equal by nature and that they possess, equally, certain natural rights. Hobbesian thought was also characterized by the introduction of the idea that the social order is not a natural given but rather something that is constructed. This marked a fundamental transformation of thinking about justice. Rather than governing relations between people whose position in a fixed social terrain is set by nature, justice came to be applied to the terrain itself. As Johnston puts it, a new question emerged: "How can human beings redesign and rebuild the terrain of the social world so as to make that terrain itself just" (115).

Hume was guided by a concern to promote human well-being, with everyone's well-being counting equally. Thus, for, conventions of property are understood to have their rationale in the promotion of human well-being. Similarly, Adam Smith tied justice to greater prosperity, the principle that distributive shares should be proportional to contribution, setting the stage for the emergence of the idea of social justice -- the idea that a whole society, in contrast to relations among particular persons, can be seen as just or unjust. Johnston associates this development initially with the French revolution.  Aristocracy, with its inherited claims unrelated to contribution, thus becomes unjust. 

Marx challenged the principle not of desert, but of need. Marx was sceptical about the concept of justice because he associated it with the desert principle, which he regarded as bringing with it inequality. Under communism, distribution will be governed by need.

Rawls's theory of justice as fairness. The key assumption of this theory is that society is to be viewed as a fair system of cooperation among free and equal persons.

Johnston's basic conclusion, after completing his historical survey, is that justice is grounded, ultimately, in a sense of justice, a psychological capacity that is possessed by normal humans, and that this capacity is oriented toward balanced reciprocity.

justice is a tool that has been invented and refined by human beings, but, like other tools, it is not infinitely plastic and cannot be reinvented in any form one happens to like”.   David Johnston

The concept of fairness is thus especially well suited to contexts where we take ourselves to be negotiating what reciprocity requires. The connection of justice with authority would then enter by virtue of the fact that the claims that can be made in different contexts are often fixed by an exercise of authority. So in thinking about how authority ought to be exercised, we are thinking about justice.

David JohnstonA Brief History of Justice, Wiley-Blackwell, 2011, Reviewed by Christopher McMahon, University of California, Santa Barbara

British Justice stems from more prosaic origins; primal or barbaric instincts.  King Alfred The Great, established the first Anglo Celtic  legal code; he assembled the laws of Offa and other predecessors, and of the kingdoms of Mercia and Kent, adding his own administrative regulations to form a definitive body of Anglo-Saxon law. Much of British law was based on the Bible including the Ten Commandments.

Justices of the Peace

The origin of Justices of the Peace has been traced back to Britain in 1195, when Richard the Lionheart commissioned certain knights to preserve the peace in unruly areas. They were responsible to the King for ensuring that the law was upheld and they were known as Custodes Pacis (Keepers of the Peace).

During the early 1320s, Keepers of the Peace were appointed in each county, and by the 1340s these keepers had powers to hear and determine trespasses and punish offenders. The title, Justice of the Peace, derives from 1361 during the reign of Edward III, making the office one of the oldest in the common law system.

Justices of the Peace today play a more limited role and have little in common with their earlier counterparts.

From 1215, disputes were settled under the yoke of an adversarial system that relies on combat – originally physical (duels were legal until the 19th century), and now psychological and linguistic gladiatorial contests.  “Might triumphs over right”.   Trial by Ordeal was fashionable as late as the 16th Century.

Despite various attempts to discredit Richard III, many view him as a reformer of extensive legal reforms whose effects we are feeling to this day. Richard III invented the system of bail-- he did not think it appropriate for offenders of small crimes to be detained of their liberty before trial.

Richard III legislated that the law of the land must be in the language of land. Prior to Richard, those unaware of either Latin or Old French did not know what the law was. It was a Ricardian measure that had the law translated and posted in public market places for all to see and read.

Richard III abolished the system of benevolences. This was a system whereby members of the gentry could actually pay for high offices (for example, positions on the judiciary without necessarily having qualifications). It was Richard's belief that the best man should be presented with the job most suited to his talents regardless of birth.

The Origins of Justice: The Evolution of Morality, Human Rights, and Law presents a view of human origins and nature that is radically different from that of the prevailing Western paradigm. John O'Manique's view shifts the emphasis from a negative characterization, in which humans are primarily aggressive and solitary, to a more positive picture of human origins within social communities, in which empathy and mutual care are just as natural and effective as selfish, competitive behavior. Drawing from neo-Darwinian theory and research on evolution, O'Manique develops hypotheses on the origins of human rights and justice that challenge the Western paradigm and the writings of such influential modern theorists as John Rawls and Robert Nozick.

In the prevailing paradigm, justice is a rational solution to the natural condition of fear and conflict. But, O'Manique suggests, scientific evidence supports the hypothesis that human rights, law, and justice arise within caring communities, from the reflections of our early ancestors on genetically based inclinations required for biological development. With the birth of self-consciousness, O'Manique shows how humans, within the context of their communities and cultures, construct systems of justice which transcend the biological base from which they emerged.

John O'Manique is Distinguished Research Professor at the Norman Paterson School of International Affairs, Carleton University.

The Reality

Lawyers are trained in the arts of linguistic combat; persuasion – casuistry, sophistry and eristic logic, to win at all costs. Specious and spurious arguments trump truth and reality.   Manipulation of evidence can lead to perception management. 

Judges are not trained on the assumption that a competent lawyer will become a good judge!  Some Judges find the transformation from an adversarial mindset to Judicial disinterestedness and detachment, a seismic paradigm shift too difficult to negotiate.

As in most contests, truth becomes the first casualty.  The system has been created by the Legal/Judicial industry and surprise! Surprise!, it works in their interest; giving them absolute control over information providing maximum billable hours, maintaining their status in the upper echelons of society.

From time to time, a number of leading Judges have made futile attempts to reform the system, but to little avail.  Concerted efforts appear to have been made at the turn of the second Millennium, but soon ran out of steam. Here are some:

Judge Harold Rothwax  (1930 – 97) 

Rothwax’s conservative views on revising America's criminal justice system were placed in a national spotlight in 1996 with the publication of his book, ''Guilty: The Collapse of Criminal Justice.''

Judge Rothwax contended that the technical rules imposed by the appeals courts had undermined the search for truth in courtrooms. ''Without truth,'' he wrote, ''how can our society properly maintain the ideals, values and principles upon which it was founded?''  New York Times.

Beverly McLachlin, Chief Justice of the Supreme Court of Canada,

says many people give up on the justice system and 'just swallow their pain and their loss and live with it.'  Peoples' lives can be ruined if they can't get access to justice,Saturday August 17th, 2013 at the Saskatoon conference of the Canadian Bar Association.

 "We know that there are a lot of needs. People just swallow their pain and their loss and live with it, I guess, in some unsatisfactory way feeling they can't get justice," . 

Full story:  http://www.cbc.ca/news/canada/saskatoon/canada-s-top-judge-slams-inaccessible-justice-1.1306993

The Honourable Justice Rosalie Silberman Abella,

appointed to the Supreme Court of Canada in 2004.  She is the first Jewish woman appointed to the Court.

Excerpts from  Lecture, Justice and Literature  (before 2006)

Full transcript available: http://www.lsuc.on.ca/media/rosalie_abella_justice_and_literature.pdf

offers a more generic look at professionalism – not at whether we have it, because I think in some ineffable way we do and always will have, but at whether in our professionalism we are paying enough attention to why and for whom we are professional. I propose to look at our professionalism from the outside in, not at how we see ourselves, but at whether justice is being “seen to  be done”, which is, in my view, the essence of professionalism.

Abella refers to: Roscoe Pound’s 1906 speech to the American Bar Association was entitled, “The Causes of Popular Dissatisfaction with the Administration of Justice”. It is, remarkably, still painfully relevant almost 100 years later.  “Dissatisfaction with the administration of justice is as old as law … discontent has an ancient and unbroken pedigree”.

Pound subdivided the issues, and compellingly observed the unwillingness of the system to respond to change.

 And the most important thing he felt needed change in 1906 was the civil justice system’s exaggerated preoccupation with contentious procedure. Wigmore called this preoccupation the “instinct of giving the game fair play”. Pound, less  charitably, called it the “sporting theory of justice”, a theory he asserted was so rooted in the profession that it was taken for a fundamental legal tenet, when in reality he felt it was probably only a survival of the days when a lawsuit was a fight between two clans. In Pound’s view, “The idea that procedure must of necessity be wholly contentious disfigures our judicial administration at every turn…. The effect of our exaggerated contentious procedure is not only to irritate parties, witnesses and jurors in particular cases, but to give to the whole community a false notion of the purpose and end of a law.” 


But above all, Pound (in 1906) attributed public disaffection with the courts to the fact that the system was archaic and the procedure behind the times.

“Uncertainty, delay and expense, and above all, the injustice of deciding cases upon points of practice, which are the mere etiquette of justice, [are] direct results   of the organization of our courts and the backwardness of our procedure.”
  While in his diagnostic tour de force Pound also blamed the making of the legal profession into a “trade”, the politicization of the judiciary, and the “public ignorance of the real workings of courts due to ignorant and sensational reports in the press”, in the end the causes lay, he felt, in the undisputable reality that the administration of justice was “simply behind the times”. In 1906.

What does “quality of justice” mean? And whose dictionary are we going to use to define it – those who can or those who cannot afford it?

So back to first principles. What is the purpose of a civil trial? To get at the truth? (To resolve disputes? To enhance society?)

Public trust is eroding because, …, the civil justice system’s status quo feels too extravagant, complicated, and expensive for what it delivers and to whom.

….Rethinking what disputes we consider justiciable. After all, what is there  about being a lawyer that qualifies us to translate all forms of human behaviour into adjudicated disputes? Or about being judges to decide them? And is there enough in the law school curriculum to teach lawyers to think in a contextual and strategic and civic-minded and multi-dimensional and settlement-oriented way to enhance these capacities?

We may find to our surprise, that neither the Rule of Law, nor due process, nor clients, nor lifestyles will be impaired. There is even the possibility that our experiment may in fact improve justice’s performance.

British, Sir Hugh Laddie QC, in Legal Week, May 26, 2006,:

“Go back to the drawing board and consider the possibility that the adversarial system is past its sell-by date.”

Retired High Court (Canadian born) Judge Dyson Heydon

has fired a parting salvo at his fellow Australian High Court judges in an essay that categorises them as overbearing personalities and weaker spirits, with a herd mentality that poses a threat to judicial independence. ''The enemy within'', published in the Law Quarterly Review.

In a thinly veiled critique of the dynamic on the High Court, the most solitary figure on the bench in recent years attacked the tendency of some judges to dominate others,

''Stronger judicial personalities tend to push the weaker into submission,''

''They stare out from their judgments with the superb elegance of noblemen in Renaissance portraits - utterly confident of their own ability, pretty sure that no other judge has yet grasped the key points and that some may never do so, certain that the parties have not, glorifying in their self-perceived terribilita.''

Sometimes those judges exerted their influence even before oral argument began, in the judicial conferences that were held among the seven members of the bench to discuss the issues of each case.

''In pre-hearing judicial conferences, the activities of dominant judicial personalities carry the danger of creating the appearance and the reality of prejudgment - a closure by members of the court of their minds too early, before word of oral argument has been uttered,'' Mr Heydon wrote. ''Chief Justice Griffith spoke of the process by which 'arguments were torn to shreds before they were fully admitted to the mind'. Some counsel now think that they are torn to shreds before they have fully left counsel's mouth.''

Another Retired Australian High Court Justice Michael Kirby recommended that protocols be developed to deal with judges who bully counsel or witnesses.

''In serious and repeated cases, bullying by judicial officers should be recognised as an abuse of public office warranting commencement of proceedings for the removal of the offender from judicial office,'' he said.

''A judge is a servant of the law and is commissioned by the Queen and the community to do their duty, without fear or favour, affection or ill will.

''They have to be held to that, in my opinion, because if they're not, they're going  to go on [bullying others].''

 

The rudeness of judges trickles down to junior lawyers in a cycle of bullying and stress that is rife within the legal profession, says former High Court judge Michael Kirby.

While it was difficult for bullying victims - particularly junior lawyers - to take action, Justice Kirby said that bad behaviour should not be tolerated.

Lawyers should pull up judges for being rude in court, for example by saying, ''Your honour might care to reconsider the way that matter was put last'' or by complaining to the Jurists' Commission, he said. ''A judge is a servant of the law and is commissioned by the Queen and the community to do their duty, without fear or favour, affection or ill will.

Justice Kirby gave a rare glimpse into his personal experience as a gay High Court judge, saying that his sexuality had been an added stress.

''I had to not be myself. I couldn't be at peace. I was told I had to be ashamed of it. I wasn't really, but I knew that's what I had to be.''

The "law" can be, in the immortal words of Thomas Aquinas, "no law at all, but rather a species of violence".   Jane.Lee@fairfaxmedia.com.au

EVAN WHITT0N - Excerpts from:

‘Our Corrupt Legal System: Why Everyone is a Victim (Except Rich Criminals)’ by Evan Whitton (Book Pal, 2009)

Evan Whitton is a legal historian. His Our Corrupt Legal System details the origins of the system used in England and its former colonies.  Evan Whitton has been reporting on corruption for more than forty years, received the Walkley Award for National Journalism five times and was Journalist of the Year 1983 for "courage and innovation" in reporting a corruption inquiry. He was editor of The National Times, Chief Reporter and European Correspondent for The Sydney Morning Herald and Reader in Journalism at the University of Queensland. He is now a columnist on the online legal journal Justinian www.justinian.com.au

The main thing will be to abolish the judge-lawyer cartel by training judges separately from lawyers, as they do in Europe.

Common law countries will change to a  truth-seeking system when lawyers in legislatures learn to fear the public more than they love the anti-truth system.

Whitton demonstrates out of the mouths of experts, so much of what is wrong with the adversarial system of justice; How they have constructed a system which is riddled with inbuilt ploys that deny truth and deny justice whilst at the same time is effective in covering up their own misdeeds.

“For whatever reason, when the interests of justice conflict with the interests of lawyers, then, injustice is inevitable.”

As so many of us can vouch, and as Evan Whitton so ably demonstrates, the adversarial system of law is not working and is not fit for purpose, the main reason being is that, at any level, it can be, and often is, corrupted to suit the purposes of those who administer it.

It does not serve or seek the truth and without truth there can be no justice.

Evan Whitton reveals that the adversarial system is a medieval relic that serves no purpose other than to enrich and serve those within it to maintain a cushy, mainly publicly funded, lifestyle that the ordinary working man can only aspire to. If a good and just result comes out of it now and then, well, that’s a bonus.

 

Earlier books by Mr Whitton are online at: http://netk.net.au/WhittonHome.asp

The Cartel

Lawyers and Their Nine Magic Tricks

INTRODUCTION

"---You and I both do the same thing, he would chide me, "sleight of hand - making things appear to be what they're not. " 
 Alan M. Dershowitz, US defence lawyer, writing of his son, a professional magician, 1991.

"... you really feel you've done something when you get the guilty off."
Stuart Littlemore, QC, 1995

I don't think it's a justice system as such; it's a legal system. 
 Mel Barnett, common lawyer, 1997

A new millennium offers a chance to reflect on many things, including the law. Citizens of English-speaking common law countries, some 1600,000,000 in all, might urgently debate whether they want a justice system or a legal system, what sort of judges and lawyers they want, and indeed whether their system has ever been legitimate.

Mr Barnett is not wrong; the position of the common law is quite untenable. Law exists to protect the community, but the result of common lawyers' nine magic tricks is that about one per cent of people in prison are innocent, and about 80 per cent of fairly serious criminals are found not guilty.

By contrast, a 1992 study on inquisitorial pre-trial procedures in France and Germany for Viscount Runciman's inquiry into the criminal justice system found it was unlikely that miscarriages such as the Guildford Four and the Birmingham Six would occur in France and Germany.

And Justice James Burchett, of the Australian Federal Court, says French courts are fair and their verdicts are generally accurate. But French and German trials convict about 90 per cent of fairly serious criminals against the common law's 20 per cent.

How did the cartel which has run the common law for eight centuries allow it to get into this parlous situation? What is the solution? Lawyers don't ask these questions, let alone answer them.

Perhaps they should try the Greenpeace approach: What is the problem? What is the solution? What am I doing about it? What are you doing about it? Who should do what?

PROBLEMS

Ignorance. Ignorance of the origins of the magic tricks is profound; law schools teach how to use them but not where they came from. How do you make a lawyer stutter? Ask him: Who decided that truth is not important to justice? When was the adversary system invented? Much of what follows will thus be new and surprising and I trust alarming - to judges and lawyers.

The English Disease. I apologise in advance to non-lawyers for the Dick and Dora prose, but I have to keep the malady in mind: common lawyers and judges have always seemed to find clarity of thought and utterance difficult, a phenomenon known as la maladie Anglais. The magic tricks may be seen as manifestations of the malady in the 13th and 18th centuries, but lawyers and judges stubbornly and consistently refuse the cure, a truth serum; further manifestations are reported daily.

13th Century

Accusatorial Systems . Legal systems in England and Europe in the Dark and early Middle Ages believed in the Judgment of God, i.e. that the facts were gathered and the verdict delivered by an inscrutable deity. The procedure was accusatorial: one person accused another; the trial took various forms, including trial by ordeal and the judicial duel, or trial by single combat (trial by battle), in which an armed champion could stand in for accuser and accused.

An Inquisitorial System . After a conference in Rome in November 1215, European courts decided to drop the deity as the fact-gatherer and to use a judge (Bishop) instead. The judge questioned everyone, including the suspect, who might help him find the truth. This is called an inquisitorial, or investigative, system. European judges, like English judges, sometimes resorted to torture.

The Cartel. In 1216, the English monarch, Henry III, was aged nine; the decision on whether to follow the European courts was left to a recently-formed cartel of some two dozen lawyers and untrained and ignorant judges. A problem with such an incestuous connexion is that lawyering is lawyering and judging is judging.

There is a disobliging view that those in the cartel were primarily interested in money, status and power; Judge Richard Posner, a US economist and appeal court judge, said this of the cartel in 1995:

"... self-interest has played as big a role in legal thought as in medical thought ... The history of the legal profession is to a great extent, and despite noisy and incessant protestation and apologetics, the history of all branches of the profession, including the professoriat and the judiciary, to secure a lustrous place in the financial and social-status sun ... the profession was [until recently in the US] an intricately and ingeniously reticulated though imperfect cartel."

Self-interest was no doubt at times a factor in the shambles that is the common law, but Judge Posner may be overly harsh as to motive. Apart from the malady, "noisy and incessant protestation" about its supposed merits probably convinced many that it is a great system, and that they were properly furthering the interests of justice; those who relentlessly obstruct reform may well believe they know better. A question is: when does invincible ignorance shade into culpable ignorance?

The First Magic Trick . At all events, the 13th century cartel decided that investigating the truth was not the way to go. The "wogs begin at Calais" posture seems to have been a factor; Dr R.M. Jackson, an English legal historian, says they persisted with the accusatorial system partly because of "an insular dislike of things foreign".

The ludicrous notion that truth is not relevant to justice is the first and greatest magic trick; it is the fundamental problem from which all others flow. The 1600 million groaning under the yoke of the common law might reasonably ask why they should still be at the mercy of a few racist buffoons in the 13th century. One answer is that the rule of precedent means that judges must abide by the decisions of earlier judges even though they were probably wrong, confused or had a secret agenda.

A Defective Jury System . Dr Jackson says the other reason for not adopting the inquisitorial system was that England was experimenting with a jury system. Perhaps not unexpectedly, the system was, and is, fatally flawed: the cartel merely replaced an inscrutable deity with an inscrutable jury; a German maxim says: without reasons there can be no valid judgment. The jury system is the second magic trick: it eventually gave defence lawyers the excuse to invent a series of rules that help keep guilty clients at large.

Meanwhile, for five centuries judges alleviated the jury problem to a degree by informally discussing the case with the jurors. They helped them with the weight they should give certain types of evidence, e.g. hearsay. They sought jurors' views on the way they were heading; asked them their reasons; and put them right if they got it wrong, at least as the judge saw it.

Unfair Criminal Trials . Lawyers in the cartel appeared for the parties in civil actions, but were remiss in not persuading judges to allow them to represent accused in criminal trials; perhaps there was little money, status or power in it. The judge was supposed to watch the accused's interests, but must have been fairly perfunctory; trials were said to be nasty, brutish and short.

The judge did not conceal evidence but did not look for it either; he was not an investigating fact-gatherer in the European sense. He was not briefed beforehand on the accuser's case; he took the evidence as it came from the accuser, and he alone questioned the witnesses, including the accused.

The Legislature . Citizens wonder why, if the law is so bad, the cartel has managed to prevent reform for eight centuries. One reason may be that lawyers got control of Parliament in the 14th century, and they retain a powerful influence in legislatures. In the United States, where there is one lawyer for every 350 persons, being a lawyer is almost a condition of entry into politics.

Exporting the Malady . England began exporting the common law (and the malady) in the 17th century: Jamestown, Virginia, in 1607, Cape Town, South Africa in 1652, Bombay, India, in 1661, Canada in 1670, Sydney, Australia, in 1778, to New Zealand in 1792.

18TH CENTURY

Legal Academics . Membership of the cartel was tightly held; legal academics were excluded for five centuries. William Blackstone was the first admitted; despite "his freedom from excessive learning" he began to teach common law at Oxford University in 1753. He accepted the law without question and was a hugely successful apologist for it in England and America. With exceptions, academics tend to follow the Blackstone line.

He appears to have invented the "rotten apple" defence, thus anticipating corrupt police forces. The Westminster Review reported in 1826: " ... so successful have been the artifices of lawyers that Englishmen have hitherto almost universally believed the assertion of Sir William Blackstone that these inconveniences are the price we necessarily pay for the benefits of legal protection."

A Mafia Ode to the Common Law . Blackstone's panegyrics were echoed two centuries later by the US Mafia.  Judge Giovanni Falcone and other Palermo investigating magistrates laid on a maxi-trial of 475 members of the Sicilian Mafia in 1986. The Sicilian Mafia's response, apart from assassination, was to bribe Italian legislators to change from an inquisitorial system to one more like the common law. Joe Gambino, a major US heroin supplier who got his product from Sicily, discussed the new system with an anonymous colleague just back from Sicily in 1988. Their ode (in Sicilian dialect) to the common law and its magic tricks was taped at the Cafe Giardino, Brooklyn:

Gambino: Oh, so it's like here, in America?
Anon: No, it's better, much better. Now those bastards, the magistrates and cops, can't even dream of arresting anyone the way they do now.
Gambino: The cops will take it up the ass! And that other one [Judge Falcone] won't be able to do anything either? ... They'll all take it up the ass!
Anon:  Yeah, they'll take it in the ass.

Joe Gambino's metaphor is not one I would care to use for what happened to 18th century judges and to police in common law countries ever since, but the following may explain his ringing endorsement of the common law.

A Quantum Lurch . Members of the cartel claim that a great strength of the common law is that it can adapt and change. Indeed it can, and for the worse. Towards the end of the 18th century it made a quantum lurch: from extreme injustice to the accused to extreme injustice to the victim and the community. Defence lawyers persuaded dubious judges to accept an unjust and unfair form of adversary system and rules which conceal evidence and get the guilty off.

Even more remarkably, lawyers persuaded judges to surrender control of civil and criminal trials to people whose obligation is to win, i.e. lawyers.

Judges who allowed this to happen included Lord Chief Justice (1756-88) Mansfield, a politician who sat with corrupt Whig oligarchs in Cabinet, and Justice (1770-80) Sir William Blackstone, the academic spin doctor. The kindest thing to say about them is that they must have been in a terminal phase of the malady.

Adversary Systems . It should be noted that any legal system which purports to be fair has an adversary system. In inquisitorial versions, the defence lawyer can protect his client's interests in every way up to the point where he might interfere with the truth. That point is cross-examination: in the hands of a fact-gathering judge, it is a great engine for discovering the truth; in the hands of a defence lawyer, it a great engine for obscuring it.

Hijacking the Trial . What happened in the 18th century may be seen as happenstance or as a series of brilliantly executed manoeuvres by lawyers to take over control of criminal and civil trials. Either way, the result is a gravely flawed legal system. The steps took place so gradually over a century that few noticed what was happening. I have relied largely on work by Professor John Langbein, of Yale University, for the process. The steps were:

Step 1. Parliament offers rewards for information on criminals in 1692. Constables and criminals begin to fabricate to get the blood money.

Step 2. Defence lawyers get their toe in the door of the criminal courts via the Treason Act of 1696.

Step 3. Defence lawyers use the constables' oppression and fabrication to persuade judges to let them cross-examine along with the judge. Since it crosses the truth boundary, such an adversary system may be termed excessive.

Step 4. Defence and prosecution lawyers persuade judges to retire from examination and cross-examination altogether. This gives lawyers control of criminal trials.

Step 5. Lawyers persuade judges to also surrender control of civil trials. With little to do, Lord Coleridge took up sleeping on the bench; Lord Thankerton took up knitting.

A Grossly Excessive Adversary System . Count Dracula now had control of the blood supply: lawyers decided what witnesses will be heard and what evidence they will give in criminal and civil trials. This grossly excessive adversary system is magic trick number 3. It builds in miscarriages both ways; the verdict is likely to go to the better legal team. A strong prosecutor and a weak defence lawyer can put innocent people in prison, and vice versa, as recent high profile US cases demonstrate.

Trial by Battle Reinvented . The wheel had gone full circle. Those racist buffoons in the 13th century may have turned their backs on truth and substituted an inscrutable jury for an inscrutable deity, but at least they gave up trial by battle. Now defence lawyers and Justices Mansfield, Blackstone et al had contrived to reinvent it. This inevitably led to an attitude articulated, apparently quite properly, by an Australian lawyer, Stuart Littlemore, in 1995: "You really feel you've done something when you get the guilty off."

Those who fund legal aid for the new judicial duel may not be amused, but novelists and film and television makers are desperately in the debt of Mansfield and the others. The dread Erle Stanley Gardner, the lawyer who invented fictional defence lawyer Perry Mason, was perhaps an even greater apologist than Blackstone; he probably convinced many of the 1600 million that truth is sought and found in a common law court.

On the other hand, televising the O.J. Simpson criminal trial had the virtue of revealing the truth; Professor David Luban, of Georgetown University, said: "The O.J. Simpson trial has persuaded most Americans that the adversary system is at best grotesque."

Step 6. Rules for Concealing Evidence . But the invention of this grotesque system was not the end of it; defence lawyers were just getting into their stride. A wedge had been driven between judge and jury. The now passive judge could no longer informally discuss the case with jurors, and judges agreed that they were of dubious mental calibre. Defence lawyers said it was only fair to protect their clients from jury error by concealing certain relevant evidence.

Prophylaxis for Cure . Instead of finding a way to solve the jury problem, the judges accepted the rules for concealing evidence. In a startling image, Professor John Langbein observed: "Prophylaxis substitutes for cure." But prophylactics are notoriously unsafe; innocent men have gone to the electric chair and the gallows, and, as noted, there are figures to suggest that one per cent of inmates of common law prisons are not guilty.

The new system also increased the vices it was supposed to prevent: oppression and fabrication were now used by defence as well as prosecution, and it did make it much easier for defence lawyers to get their guilty clients off.

The rules for concealing relevant evidence (Magic Tricks 4 to 9) are:

A Privilege against Self-incrimination / Right of Silence. This is brilliant; it protects the guilty only.

A Rule against Similar Facts . This is particularly brilliant for organised criminals outside the US and for sex criminals everywhere: it conceals evidence of their patterns of criminal behaviour. It thus causes wholesale miscarriages in favour of the guilty: when the US RICO (Racketeer-Influenced and Corrupt Organisations) legislation made an exception for organised criminals, the previously untouchable heads of virtually every Mafia family in the US went to prison.

Rule Against Hearsay . This conceals evidence from witnesses not available for cross-examination which might show they were wrong, confused or had a secret agenda., e.g. 0.J. Simpson's murdered ex-wife. The rule may be usefully contrasted with the rule of precedent; as noted, it obliges judges to adhere to the decisions of judges who were wrong, confused or had a secret agenda, e.g. certain clowns in the 13th and 18th centuries.

A Confusing Standard of Proof . The confusingly negative formula for the standard of proof, beyond a reasonable doubt, is one of the better cards for keeping guilty clients out of prison. Jurors can feel a doubt about anything, but judges cannot tell them what reasonable means. If the lawyer can get a hung jury, the prosecutors may not put taxpayers to the expense of a retrial. In jurisdictions requiring unanimous verdicts, hung juries can run as high as 25 per cent of trials.

The Christie Discretion . This gives judges the power to conceal virtually all admissible evidence. The grounds for applying the discretion require a degree in metaphysics rather than law. Error is inevitable, but there can be no appeal against wrong decisions.

The Exclusionary Rule . This can conceal evidence said to have been improperly obtained by police. It doesn't hurt the police, but it does hurt the victim and the community. The US version was invented by a judge who may effectively have been appointed to the Supreme Court by a Mafia fixer, Murray (The Camel) Humphreys. Eliminating police evidence via this rule was fundamental to the strategy of 0.J Simpson's defence team.

Charles Dickens observed in 1852: "The one great principle of English law is to make business for itself." Apart from everything else, the rules for concealing evidence enable lawyers and judges to engage in endless technical discussion on whether evidence can be admitted.

Presumptions of Innocence and Guilt . A reasonable approach to suspects is agnostic: they may or may not be guilty. But defence lawyers persuaded judges to presume they are innocent. We could be more persuaded of the judges' good faith if they had not also invented a presumption of guilt for anyone who might expose corruption in high places; Lord Mansfield's final solution for the problem of journalism was the brazenly ludicrous dictum: the greater the truth the greater the libel.

Corrupt Cops. We can now see why hard-headed organised criminals in police forces are as grateful to the cartel as the Mafia's Joe Gambino. They know that if they brazen it out at an inquisitorial proceeding the common law's nine magic tricks will probably save them from prison if charges are subsequently laid. At the Wood Royal Commission on police corruption in New South Wales (hereafter NSW) Justice Wood offered amnesty to officers in the endemically corrupt detective section of the NSW police service, but only a handful accepted. A Sydney detective, Craig (Snidely Whiplash) McDonald, explained to a (wired) colleague on December 5, 1997: "The only thing that caused a problem at the Royal Commission was blokes under pressure shitting themselves."

The United States . The Preamble to the 1787 Constitution states:

"We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Amendments in 1791 (and Supreme Court interpretations of them) entombed in the Constitutions the right of silence (Fourth and Fifth Amendments), the adversary system (Sixth Amendment), and the common law itself and any further rules for concealing evidence that might be invented (Seventh Amendment).

Notorious cases, Bruno Hauptmann, 0.J Simpson, the Menendez boys, Lorena Bobbitt, the English nanny, merely confirm that the Amendments do not deliver justice; the Supreme Court could probably eliminate them by invoking the overrider about justice in the Preamble. It has not happened, perhaps because the court is not immune to a malady Americain; that at least seems to be the view of Judge Harold Rothwax, of the New York State Supreme Court.

Cartel Eulogies . In England, the cartel apparently judged that a massive public relations campaign would be needed to get citizens who fund the law to accept the new rules' wholesale assault on the truth. Justice David Ipp, of the West Australian Supreme Court, notes that "the 19th century opened upon a legal system which inspired the most extravagant eulogies from the Bench and Bar. There was a startling degree of smugness and self-satisfaction".

It was not totally successful; Justice Ipp reports: "The press and the general community did not share this sense of wellbeing. There was considerable tension between the public and the courts". Nonetheless, in 200 years the common law adapted and changed only at the margins.

End of Blood Money . The blood money, which started the whole catastrophe, was abolished in 1827, but by then most had probably forgotten it was an excuse for inventing the extreme adversary system.

Truth. In view of the above, it is idle for 'common lawyers and judges to claim that a criminal or civil trial is a "tribunal of fact".  In criminal trials, one nominal fact-gatherer, the prosecutor, is impeded by the rules for suppressing evidence, and the defence lawyer is often impeded by his obligation to his client. In civil actions, the lawyers gather only those facts which help their case and try to hide those which don't. A US Judge, Marvin Frankel, says: "It is the rare case in which either side yearns to have the witnesses, or anyone, give the whole truth." (Judge Frankel's emphasis.)

The Result. To repeat, figures are available to suggest that in 100 fairly serious common law criminal cases 80 guilty get off and one innocent person goes to prison. Costs to the state can be $100,000 a week and up. Costs in civil cases can be higher.

SOLUTIONS

Melbourne lawyer Mel Barnett told Susanna Lobez on Radio National's Law Report in November 1997 he had "very much" lost faith in the adversarial system. He said: "I feel that we do have to change the way in which we look at a criminal trial and perhaps search more for the truth. And this may well be done through an inquisitorial system."

Barnett presumably agrees that what happened in the 13th and 18th centuries were aberrations. Solutions thus involve accepting that truth is important, winding the adversary system back to the point where it does not obscure it, reverting to the system in which the judge was in charge of civil and criminal trials, and adding a few wrinkles on fairness and justice borrowed from inquisitorial systems used by some 1000,000,000 people in Europe, its former colonies and Japan.

Inquisitorial Systems . European inquisitorial systems are not without flaw, but they do accept that truth is relevant to justice; their adversary system is designed to help find the truth, not obstruct it. Anatomy of a French Murder Case (1997) by Sydney University's Bron McKillop, is a major contribution to understanding inquisitorial methods; law Professor Ian Dennis, of University College, London, says he knows of "no comparable study in this detail". McKillop traces a French case from investigation to trial to appeal, and contrasts it with common law procedures not necessarily to the latter's advantage.

There is of course little need for organised criminals to corrupt passive common law judges, but safeguards are necessary to protect the fact-gathering inquisitorial judge from temptation.

Pre-Trial Investigation . The pre-trial investigation is the key to justice in Europe. The method is superior to those in common law countries for several reasons. It is an inquiry into the truth; every detail, including material favourable to the suspect, goes into a dossier; an adversary system operates; the suspect's lawyer can inspect the dossier at any time and suggest other lines of inquiry; professional judges supervise the police and question the suspect and witnesses; this tends to eliminate oppression and fabrication. Hence the rarity of miscarriages against the innocent.

The Trial. The major figures at an inquisitorial trial are the fact-gathering judge and the suspect. The judge does not accept a guilty plea; that would prevent him from finding out the facts for himself. He has studied the dossier beforehand; he calls the witnesses, including the accused, and questions them in a neutral way. The jury, if there is one, is on the bench with him; there are no magic tricks for concealing evidence.

The adversary systems strike the right balance; lawyers appear for the accused, the victim and the community. The accused's lawyer can do everything to protect his interests, including suggesting questions for the judge to ask and making submissions, except obscure the truth by cross-examining. The judge and jurors work in a collegial way: the jurors supply the common sense; the judge supplies the weight to be given to evidence. They work out the verdict and penalty together and the judge writes their reasons.

Civil Litigation . In Germany, civil litigation is more like a conference than a trial. Putting fact-gathering into the hands of truth-seeking judges would reduce the cost and many of the problems of civil litigation.

The Cartel. Inquisitorial systems do not have a cartel; the cartel can be dismantled by training judges separately from lawyers. This was recommended by the Australian Law Reform Commission in 1997.

Judges. It seems reasonable to compensate active professional judges rather more generously than passive amateur judges; for the first time, they will be doing the work of fact-gathering and investigating the truth; say an average of $200,000 per annum.

In 1983, West Germany had 17,000 judges in a population of 61,306,700, one judge for every 3606 persons. Rough estimates of the number of judges needed for an inquisitorial system in some common law countries are thus: India: 210,000; United States: 70,000; United Kingdom: 16,600; South Africa: 11,000; Canada: 8,300; Australia 5128; Ireland: 1150; New Zealand: 1100.

In November 1997, Australia had 863 judges, including magistrates. It would thus require a six-fold increase in judges.

Costs. The cartel, heavily represented in legislatures, will say that governments will not pay for the extra judges. More research is needed, but it is not at all clear that an inquisitorial system would cost more than a common law system. It does not have committal hearings and its trials cost one-third to one-half the cost of common law trials. One reason is that lawyers and judges do not spend weeks and months discussing what evidence will be concealed; there is nothing to discuss. In civil actions, a judge gathering all the facts at $4000 a week is less costly than a clutch of lawyers gathering some of the facts at $100,000 plus a week.

The common law also has hidden costs. Crime is estimated to cost a small country like Australia $13,000,000,000 a year, and what is laughingly called the criminal justice system costs $6,000,000,000, much of it obviously wasted; as one of Joe Gambino's Mafia colleagues observed, common law prosecutors may as well "go pick beans".

In any event, what is the price of justice? As Mel Barnett says, the common law is not a justice system, only a legal system.

Appeals. Quality control is maintained by having serious cases automatically reviewed by a higher court. (In Germany jurors help appellate judges on the meaning of facts.) The prosecutor has equal rights with the defence lawyer in arguing that the verdict was wrong, and the appeal court can overturn not guilty verdicts and ask for a re-trial.

That cannot happen in common law countries; the inscrutable jury (and a judge when sitting alone) is held to be capable of error when they find someone guilty but incapable of error when they find him innocent. This nonsense prevents retrials in such apparently worthy cases as the 0.J Simpson criminal case.

WHO HAS TO DO WHAT?

Judges. Judges insist that they have the right to make bad law, and that only the community, i.e. the legislature, can change bad law "entrenched" (however recently) by judges in the common law, e.g. the excessive adversary system and the right of silence.

Lawyers. There are some three million lawyers and judges in the common law world, many desperately trying to produce justice from a system fatally infected eight centuries ago. Lawyers like Mel Barnett and judges likes Harold Rothwax and Geoffrey Davies are speaking out for change, and it was certainly a giant step for lawyers at the Australian Law Reform Commission to effectively recommend that the cartel should be dismantled.

But there is a view that real change will have to come from the community; most lawyers are not interested; Nicholas Cowdery QC, Director of Public Prosecutions in NSW, says: "To a lawyer love of justice is, or should be, the love of a lifetime. Is it being spurned?"

The Community . The giant is stirring; among the common law's 1597 million non-lawyers some in the US are joining such organisations as Justice For All, People Before Lawyers, UCLR (United Citizens for Legal Reform) and FLAC (For Legally-Abused Citizens). In 1997 FLAC was considering a march on Washington to demand reform; UCLR was planning to use the RICO legislation in a class action seeking US$100 billion on behalf of victims of the American judicial system. An Australian chapter of FLAC was formed in November 1997.

Those organisations tend to focus on ever-abundant legal horror stories, e.g. FLAC Australia's case of a dispute over $230 that generated $20,000 in legal fees. But the cartel has long absorbed such punishment - if never in such concentrated form - by reference to Blackstone's brilliant line that the inconveniences are a tiny price to pay for the protection their grand legal system affords.

The organisations should thus have subsidiaries called something like GLARA (Genuine Law Reform Association), NELSA (New Legal System Association) or TILA (Truth in Law Association). The subsidiary should have a programme of positive and costed reform based on: 1. An understanding of how the common law went wrong; and 2. The better aspects of the common law and inquisitorial systems. May I modestly suggest that this book provides the basis of such reform programmes? Chapters 33-40 provide data on criminal pre-trial and trial procedures in France, Germany and Italy, and on civil litigation procedures in Germany.

The Legislature . Law-and-order politicians tend to focus on the wrong end of the system: long sentences for the few relatively minor criminals the law manages to convict. A more persuasive deterrent is the degree of certainty of going to prison if caught. A real law-and-order programme would focus on putting more major criminals into prison and keeping the innocent out.

The fundamental reform is a commitment to truth; no reform will succeed without it. The words: "The object of justice is to find the truth" at the head of a new Crimes Act should wind back the adversary system to acceptable levels. The rules for concealing evidence can be abolished by a simple change in the layout of the court room: moving the jury from the side of the court to the bench. A pre-trial system of investigating judges and defence lawyers' access to the dossier can be instituted by a stroke of the legislative pen.

Arranging for people to be trained as professional fact-gathering judges in charge of police investigations and criminal and civil trials will effectively abolish the cartel.

If judges refuse to co-operate on some spurious ground, e.g. that the new system is unfair to the accused, or that fact-gathering leaves no time for knitting, the community's representatives will sadly have to take the iron fist out of the velvet glove and remove them from office for misconduct, i.e. effectively refusing to sit.

Legal Academics . As will be apparent, I have relied on legal academics for much of the material in this book, but Judge Rothwax says: "Even in law journals, arguably the centre of legal learning and dialogue, there has been little attempt to view the system as a whole." It is ridiculous that Trial by Voodoo and The Cartel are the only books in the language which offers a critical examination of the law as a whole; legal academics should apply the weight of their knowledge and authority to the big picture.

Law Schools. Law schools will be left behind if they continue to mindlessly assert that the common law is the best system and that's all there is to it. They will have to learn the origins of both systems, how inquisitorial systems work, and how to teach students to be professional fact-gatherers. Dare I say that, until a better one comes along, The Cartel is unfortunately the obvious, and indeed the only, text?

High Schools. The law is critical to society; high school teachers should teach how it actually works and what can be done about it. Again, The Cartel is sadly the only text. Any civics class could compile a book supplementary to this by cutting and filing data from the Press in a number of folders: The Cartel, The Malady, The Unimportance of Truth, The Adversary System, the Right of Silence and the other magic tricks.

Civil Libertarians . It is surprising that civil liberties groups do not agitate to stop torture and fabrication, i.e. by judicial supervision of police and for trials that are fair to accused, victim and community. Is it because they tend to be lawyerised?

The Media. A traditional function of journalism is to expose wrongdoing, in particular corruption, which defeats democracy. The common law has been doing wrong for eight centuries; libel law has been protecting the corrupt for nearly three.

Obstructing Reform . The cartel is the only impediment to reform; it has been obstructing it for eight centuries. One technique is to assert that the law is a great mystery and that only its priesthood can know how it really works. But ignorance is recycled; the priests don't know either.

Judge Richard Posner says: “’Legal Theory' is the body of systematic thinking about (or bearing closely on) law to which non-lawyers can and do make important contributions, and which lawyers ignore at their peril." Nonetheless, it may confidently be surmised that elements of the cartel will seek to dismiss The Cartel as the work of a mere scribbler.

In a sense, however, scribblers have an advantage over lawyers. The rule against similar facts makes lawyers nervous of context and pattern but they are a reporter's stock-in-trade. This is confirmed by a psychologist; he said of a remark that a journalist needs a mind like a corkscrew: "The technical term for corkscrew mind is divergent intelligence. This correlates highly with the pattern approach to evidence espoused by RICO.

"English law seems to me to be a determined attempt to limit divergent intelligence and to promote its opposite, convergent intelligence. Divergent intelligence is right-brained, convergent left-brained. One point of promoting women judges is that fewer are so totally left-brained. "

The great masters of contextual or pattern journalism are The Philadelphia Inquirer's Jim Steele and Donald Barlett. Steele described the technique in 1976: "The challenge is to gather, marshal and organise vast amounts of data already in the public domain and see what it adds up to."

Ending the Magic . The data gathered for The Cartel shows why it is inevitable that the common sense will replace the common law. Some lawyers and judges won't like it, but the cartel has had a splendid innings.

 

EVAN WHITT0N

26 - Magic Trick 8 - The Christie Discretion: Now to Conceal Virtually All Evidence

If there ever was such a thing as judicial corruption it might well reside in the expanding and almost inscrutable discretions which can after the whole course of a criminal inquiry.

 - Professor John Forbes, University of Queensland, 1992

To repeat: in ambiguity lies power. If the hearsay rule is "dark, gloomy, infernal", the Christie discretion (from a 1914 case in the English Court of Appeal) belongs perhaps to some even more "hellish" section of the common law's Stygian waters.

Probative means tending to prove (the charge). The Christie discretion gives a judge power to conceal evidence if, in his opinion it is factually only slightly probative, but it may cause great prejudice against the accused in the minds of jurors of allegedly feeble intelligence and sense of fairness. (How judges cope when sitting without a jury is a matter for speculation).

The Last Nail . The Christie discretion is the last nail in the truth coffin. The judge's opinion concerns fact, not law, and so cannot be the subject of appeal. It thus effectively gives judges a non-appealable power to conceal almost any relevant and probative evidence at all. As Dr Forbes suggests, this gives extraordinary power to corrupt judges, if such exist. Murray (The Camel) Humphreys would know how to use the discretion.

Stone and Wells say the "relevant facts" to be concealed by the discretion "must be of comparatively little probative weight [and] this slight relevance must be accompanied by a great potentiality for prejudice, such that 'the effect on the minds of the jury ... might seriously prejudice the fairness of the trial'," (as Lord Moulton said in R v Christie [1914]).

The Chaos Theory . "Slight" is the problem. How slight is slight? Can a person be slightly pregnant? Can evidence be slightly probative? Judge John Helman, chairman of the Queensland District Court, said there might be "chaos" if different judges used the discretion on the same probative evidence. Judge Boulton disclosed the "chaos" theory when he again appeared as judge in a case, R v Rooklyn, (1992) which he had aborted eight months earlier because a media report had allegedly prejudiced its fair hearing. He said that Judge Helman had taken the view "that once a judge had matters, particularly dealing with questions of admissibility of evidence, that there be some consistency rather than putting matters to different judges who, on discretionary matters and so forth, might presumably bring the whole system into chaos".

The Lottery Effect . This confirms the common law's lottery effect and the cost to the community of bringing charges that may have had no chance of succeeding: the Director of Public Prosecutions cannot know what relevant and admissible evidence a judge may conceal via the discretion.

Working the Wrong Way Round . As Stone and Wells note, judges are not supposed to even consider the possible prejudicial effect of a fact unless it is only slightly probative, but there is room for speculation that some judges, pressed by anxious care to be fair to the accused, may subconsciously work the other way round: they see that the fact is highly damaging, and decide it is more prejudicial than probative and wrongly conceal it that way.

Defence Lawyers . The Christie discretion is thus fertile ground for defence lawyers: they can claim that almost any relevant fact is only slightly probative but highly prejudicial. And, depending on the judge, they might get lucky with some of the evidence. At the least, they can keep the meter ticking over. 

The full text is available @ http://netk.net.au/whittonhome.asp


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