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