|
|
From PAGE 7 THE WHISTLE JANUARY 1997
Blowing the whistle on the adversary legal system
By EVAN WHITTON
Whistleblowers are disadvantaged by adversarial procedures in courts and tribunals. In "Truth - The First Casualty" (The Australian, 9-11-96) Evan Whitton compared adversarial and inquisitorial procedures when lawyers attacked parliamentary privilege following the suicide of a former judge, David Albert Yeldham, on November 4, 1996.
Lawyers may overlook - or perhaps hope we do not notice - that parliamentarians' "abuse" of their privilege does not begin to compare with the enormity of lawyers' abuse of THEIR privilege. Lawyers are obliged to follow a client's instructions even when they know he is guilty; a lawyer, one year out of law school and not elected by anyone to anything, has an absolute privilege to make the most monstrously false assertions about the victim.
Julia Griffith, a psychologist, noted in The Sydney Morning Herald in December a case in which a man, who had already been imprisoned for child sexual assault, got off two charges of rape against a girl neighbour when she was 13 and 15. Griffith said the girl, now 17, was subjected to a "week-long assault" in the witness box and had nightmares afterwards". His lawyer -called her character into question- but the jury was not allowed to hear character evidence in her favour, or evidence of his character as revealed by the pattern of his previous behaviour.
"The adversarial system does not elicit the truth in these cases," Griffith said. The inquisitorial solution, as used by Justice James Wood at his Royal Commission, will be obvious to all except lawyers and criminals. The Judge himself seeks the truth by questioning witnesses in a neutral or sympathetic way; lawyers whose task is to obscure the truth are largely kept out of it.
(The European term, "inquisitorial", carries a deal of baggage but there is no cause for alarm: it merely means "investigative". It is an examination into the truth by a judge with powers to question everyone who can help, notably including, the suspect, and to ignore rules of evidence invented by English judges and lawyers to suppress relevant evidence, and hence to suppress the truth.)
It may appear that Mr Yeldham could put up with rumour, but that he feared the truth. But that is what the inquisitorial system is about; it is why, when we need to find the truth about some grave social problem, such as police corruption or paedophilia, we have to jettison the adversary system and resort to an inquisitorial system.
Unfortunately for the lawyers, having gone off half-cocked on parliamentary privilege, they apparently felt unable to take what may have seemed a golden opportunity to mount yet another attack on inquisitorial methods, and the threat they pose to the adversary system, and hence to lawyers and their crooked clients , if any.
The NSW Bar Association famously excoriated another Royal Commissioner, Justice Phil Woodward, for stating the simple truth that Bob Trimbole was complicit in the murder of Donald Mackay at Griffith in 1977. It said it was "outrageous to the basic principles of British justice that a finding of guilt .... by a Royal Commissioner should be published to the world at large."
Exactly. The basic principle of the adversary system of British "justice" is that truth is not important. The adversary system is rather on the run at the moment, and not before time: statistics suggest that the guilty have about an 80 percent chance of getting off under that system, but only a 10 percent chance of escaping justice under an inquisitorial system.
Jeremy Bentham, lawyer and would-be law reformer, said more than 200 years ago a lawyer for a guilty accused is effectively an accessory after the fact. At the least, he proceeds with a reckless disregard for the truth that no respectable trade would tolerate.
In the classic adversarial defence of an accused who is guilty, his lawyer persuades the judge to use the rules to suppress relevant evidence; he shifts the goalposts from accused to victim; and he uses cross-examination, thuggishly if necessary, to confuse prosecution witnesses sufficiently to create a doubt. The accused meanwhile exercises his right to avoid cross-examination.
In inquisitorial systems. judges control the police investigation and the trial; in the adversary system, judges control the court but the lawyers control the trial: they decide what witnesses will be called and the evidence they will give.
His Excellency the Governor General, Gordon Samuels, former justice of the NSW Court of Appeal, told a seminar on Reinventing the Courts in December that the adversarial system is about winners and losers not about seeking the truth. What can be said of a system that gives control of a trial to people who are more interested in winning than in truth or justice?
In theory, the adversary system might be useful as a check on dubious members of the judiciary, e.g. Sydney magistrate Murray Farquhar, but such types are surely extremely rare. The defects of the system are surely so great as to make it desirable to replace it with an inquisitorial procedure. The defects may be summarised as follows:
1. It results in oppression of prosecution witnesses.
2. It increases fabrication by defence witnesses.
3. It obscures the truth from the community, i.e. the jury.
4. It takes control of trials away from judges.
5. It gives control of trials to lawyers who are more interested in winning than in truth and justice.
6. It causes paranoia in prosecution and defence lawyers.
7. It encourages defence lawyers to deceive the community, i.e. the jury.
8. It has a deeply "corrupting" effect on expert witnesses.
9. It increases the cost of trials.
10. It prevents the legal aid budget from being fairly distributed.
11. Imbalance in the skills of the lawyers tends to make a trial unfair to either the community or to the accused.
12. It allows defence lawyers to engage in legal thuggery on victims of crime, particularly women and children who are victims of sex crimes.
13. By definition, either the prosecution or the defence lawyer is in effect trying to deceive the jury.
The vast majority of lawyers (and judges) do not have the faintest idea of why, or even when, the adversary system was invented, yet they will blindly rush to the barricades to defend it.
Justice Geoffrey Davies, of the Queensland Court of Appeal, told the seminar in December: "The object [of criminal justice reform] is the maintenance of a fair balance between the interests of a person suspected or accused of a crime and the public interest in having criminals brought to justice. Whether such a balance is being maintained is a subject which lawyers almost never discuss ... There is now, in my view, an imbalance in favour of accused persons and against the interests of the community."
He said there appear to be bodies capable of pursuing the task of reducing adversarial procedures in the civil area. "But," he said, "I can see no sign of criminal justice reform. Unless both are pursued, courts, lawyers and government will fail to fulfil the legitimate expectations of the community we serve."
(Some of this material derives from an address by Evan Whitton to the annual conference of NSW magistrates in July 1996: Wood Revisited: A Comparison of [English] Common Law and [European] Civil Law Approaches to Criminal Justice.)