Justice, truth or fairness: which should our courts pursue?

Non-lawyers are constantly baffled by legal decisions which seem to have little to do with reality, let alone justice. A few puzzles:

# A Sydney man, Jason Van Der Baan, was found not guilty of murdering his aunt, Mrs Irene Wilson, 39, after Justice Greg James suppressed evidence that he had committed two rapes and said he murdered her. The victim's brother said: 'It wasn't about truth or about justice. It was about points of law. All we hear about are the rights of the accused. What about her rights to have lived and seen her children grow? What about the rights of her children to be cared for by a loving mother?'

# Ali Ali got 16 years when a jury found he intentionally caused serious injury to Michael Tully via a bashing which left him unable to talk or walk, but Victorian appellate judges said the trial judge had not properly instructed the jury, overturned the verdict and ordered a retrial. Chief Justice John Harber Phillips said it was an 'unpalatable result for our justice system', and Justice John Batt wondered whether the DPP 'will be able to marshal all the evidence again'. Tully's brother, Rod, said: '[I] think the appeal system stinks … I can't even entertain the thought that Ali may walk free'.

# Justice Frank Vincent wrongly (according to the appeal court) concealed from himself the evidence of some 130 witnesses against John Elliott and then declared him not guilty of theft of $66 million from Fosters shareholders. He could not be retried because the law claims a wrong not guilty verdict can never be wrong.

# A Victorian judge ordered British American Tobacco Australia (BAT) to pay Rolah McCabe, who was dying of lung cancer, $700,000. He said she could not get a fair trial because BAT had destroyed documents, but appellate judges John Batt, John David Phillips and Peter Buchanan said the trial judge had wrongly learned that documents had been destroyed because he had wrongly waived the privilege of client-lawyer confidentiality, and in any event it was not wrong to destroy documents before a claim was made. They told the dead woman's family to pay the money back to BAT and ordered a retrial. The law thus still ignores the obvious point made by the English jurist, Jeremy Bentham 175 years ago that the privilege 'can do the guilty no legitimate good, and abolishing it can do the innocent no illegitimate harm'.

The key to public bewilderment (and the fury of victims' relatives) on these and other decisions lies in an observation by law professor Christine Corcos, of Louisiana State University, in 1997. She said the general public and lawyers differ about whether justice means truth or justice means process. This means English-speaking lawyers are outnumbered about 500-1 on the issue of truth or procedure. If we add in European lawyers and judges, who believe justice means truth, the odds are about 1000-1.

Former Federal Court Justice Russell Fox QC sides with the public. He says in Justice in the 21st Century: " … in legal procedure the meaning which approximates most closely to it [justice] is 'fairness' ... truth can be taken to mean the reality of what happened … This is what the ordinary person understands by the word … there must be a standard, and the public estimation must be correct, that justice marches with the truth.

"Only in this way does the concept [justice] present a moral face, as distinct from one where the winner is the person with the greatest resources and best advocacy. This is the view taken on the continent and in other countries, where the whole system of justice proceeds on the footing that the truth is to be ascertained."

So why does our lawyer-controlled adversary system emphasise procedure at the expense of truth, fairness, justice, reality, and morality? Baffled citizens might suspect there is more money for lawyers in arguing about procedure than in allowing judges to find out what actually happened.

Procedural chatter enhances the lottery effect in courts generally and in appellate courts in particular, and that in turn enables lawyers to recommend another roll of the dice at our usual reasonable rates. David Goldberg QC, a London tax barrister, noted in 1997: " …it is, I think, generally accepted that every case or virtually every case which goes to the House of Lords could be decided either way. At any rate Lord Reid is reported by Alan Patterson in his book The Law Lords as saying that at least 90 per cent of the cases which came before him could have been decided either way."

It will be no consolation to victims of the law that William Pizzi, a former prosecutor and now a law professor at the University of Colorado, made this damaging admission in Trials Without Truth (1999): '… even those who work in the system - lawyers and judges - don't respect it.'