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TRIAL by VOODOO

W H Y  T H E  L A W  D E F E A T S  JUSTICE & DEMOCRACY

EVAN WHITT0N

Introduction

... justice [is] done openly ... so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification ... Justice is done in public so that it may be discussed and criticised in public.

-Lord Scarman, Harman v Secretary of State for Home Department, House of Lords 1983.

Lord Scarman's words echo those of Justice Felix Frankfurter in the United States (Maryland v Baltimore Radio Show, 1950): 'One of the demands of a democratic society is that the public should know what goes on in courts by being told by the Press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right.'

This book seeks to adhere to those injunctions from the perspective of journalism and of the non-lawyer, the man, as the law has it, on the Clapham omnibus. It offers, with very great respect, some criticism of the common law adversary system that England unfortunately exported to its colonies, including Australia and the United States, along with some suggestions for its modification. The work seems opportune; former Justice Hal Wootten QC referred in May 1994 to 'many unsatisfactory features of a criminal justice system increasingly out of tune with modern needs and slowly breaking down under its own weight'. The argument is straightforward. In my view, the evils of English common law mostly flow from a fundamental flaw: it is the only legal system in the world that is not interested in the truth. 'Common lawyers,' former Justice Adrian Roden QC has observed, 'are at pains to explain that, under our system, courts are not concerned with getting at the facts. It is not their function to seek the truth.' The law ignores the truth because lawyers persuaded English judges that, as Professor Julius Stone QC has noted, the mental calibre of jurors was so low that they could not give proper weight to material which might unfairly 'bias them against the accused. The law thus conceals a great deal of relevant evidence from jurors. Even the evidence of the accused, who probably knows more about what actually happened than anyone else, may be concealed. The focus of a trial is thus on lawyers, which is good for their emolument.

Dr Stan Ross, who teaches legal ethics at the University of NSW, says that lawyers 'frequently lie to opposing counsel and/ or the court', and 'do things for their clients that they would find immoral if they acted similarly for themselves or non-clients'. Hence perhaps Shakespeare's words 400 years ago (Henry VI Part 11).

Dick the Butcher: The first thing we do, let's kill all the lawyers.

Jack Cade: Nay, that I mean to do.

It is hoped that lawyers stop lying when they become judges. An unethical lawyer is called a shyster from the German schiesser, literally a shitter. Police are rightly condemned for fabricating evidence, but it seems clear that shysters in the United States, and no doubt elsewhere, are also capable of totally fabricating a defence.

The adversary system seems to derive from a legal process, trial by battle, that was outlawed by a Pope in the ninth century but was still available in England in the nineteenth, and from the perennially adolescent English love of inventing games with arcane laws, e.g. cricket and Rugby football, and of pageantry and dressing up. Ian Callinan QC said in a 1988 legal paper: 'In ordinary adversarial litigation ... the object of the parties is simple, to win the case.' Cliff Morgan's dictum: 'Rugby is a nonsense, but ' a serious nonsense' could apply to the law. The common law may thus seem a ruinously costly, unjust, undemocratic, and stupefyingly unreal melange of games theory, haute couture, and the magical arts and practices of voodoo.

'Voodoo' refers here to procedures and rules that conceal relevant evidence, obscure the truth, and tilt the law in favour of the individual and against the community, as represented by police, prosecutors and jurors. (Singapore is notable for the opposite vice: its law is tilted in favour of the community and against the individual.) Major criminals and their common lawyers are like tennis players who go into every game with a lead of 30-1ove; the Australian criminal justice system, which costs some $5.4 billion annually, amounts to a fraud on people who cannot avoid paying tax, i.e. those on wages and salaries: the law, in its undemocratic way, holds that the rich do not have to pay tax if they do not feel like it. Common lawyers claim that the voodoo protects the innocent, but that cock won't fight: it did not save Timothy Evans from the gallows in England in 1950 any more than it saved Raymond Bailey from being hanged in Adelaide in 1958. Nor did it save the Birmingham Six or the Guildford Four.

The voodoo is enormously complex; attempts, however doomed, to explicate it provide useful emolument for everyone connected with the law: solicitors, barristers, judges, academics, legal bureaucrats. A solicitor with one year's experience can be charged out at $120 an hour.

Some samples of the voodoo:

The Discretion. Defence lawyers have relatively recently persuaded judges, allegedly in the interests of a fair trial, to give themselves the power to conceal relevant evidence that even the rules of evidence would admit. The discretion is only supposed to be used to conceal evidence if the judge thinks that, as a fact, it would only slightly tend to prove the case against the accused. The problem is that, unlike the jury, the common law mind, ingrained with the voodoo, is not usually expert on the slightness or otherwise of facts. But the community cannot appeal. against a judge's wrong use of the discretion because the law purports to believe that judges cannot be wrong on facts. Since use of the discretion is unappealable, corrupt judges, if such exist, would have little difficulty in fixing a case.

The Right of Silence. Lord Kilbrandon observed of the law's refusal to compel an accused to give his version of events: 'It is said that a man ought not to be called upon to incriminate himself. One may ask, why not? It is hard to see how an innocent man can incriminate himself, and if a guilty man does, so much the better.'

The Rule Against Hearsay. Ambrose Bierce noted: 'Hearsay evidence is inadmissable because the person quoted was unsworn and is not before the court for cross-examination, yet most momentous actions, military, political, commercial and of every other kind, are daily undertaken on hearsay evidence. There is no religion in the world that has any other basis than hearsay evidence ... It cannot be proved that the battle of Blenheim ever was fought, that there was such a person as Julius Caesar, such an empire as Assyria.' Hence Lord Diplock's remark that the rule against hearsay 'has little to do with common sense', and the absurdity of any claim that journalism should only publish material that would be admissible in a court of law. The Chairman of the Australian Press Council, Professor David Flint, says a competent reporter who has made diligent study of a particular may sate his bona fide belief without qualification.

The Rule Against Similar Facts (Patterns). Justice Sir William Kearney, of the Northern Territory Supreme Court, confirmed in October 1993 that 'our laws are deficient in contemplating how to deal with the menace presented by organised criminal activity'. One reason for the law's incompetence on organised crime is that the rule against similar facts generally bars relevant evidence of a pattern of behaviour because it may indicate that the accused has a disposition to commit the offence, and hence might bias the jurors.

The rule against pattern evidence makes organised criminals virtually immune from prosecution; police and prosecutors have to focus on individual crimes rather than on patterns of criminal behaviour in the organisation behind the crime. The immunity has a domino effect: organised crime uses corruption as a basic tool, and corruption defeats democracy. The United States attacked this problem a quarter of a century ago with the RICO (Racketeer-Influenced and Corrupt Organisations) legislation of 1970. RICO, which effectively accepts that jurors can give proper weight to pattern evidence, has had much success in recent years in putting away the heads of US Mafia families, including, at the third attempt, John Gotti. Australian experts on organised crime, including Frank Costigan QC and Nick Greiner, former Premier of NSW, have advocated the adoption of RICO-type legislation for more than a decade, but state and federal legal authorities remain inert.

Judge Thomas Ducker, of the NSW District Court, appeared to confirm another evil effect of the rule against similar facts in March 1994. Noting jurors' surprise when he instructed that a man they had found not guilty of sexual assault be returned to prison, he explained that the law had obliged him to keep certain evidence from them, and that the truth was 'being hidden from juries at times in circumstances which are productive of injustice and unfairness, particularly as regards situations such as that which arose in the case in which you just delivered your verdict'.

The Presumption of Guilt. Organised criminals and the corrupt are also helped by the law's apparent bias against journalism. Journalism is a trade that notoriously can be shoddy, but, like every other legal system except the English, it does seek the truth, and is therefore at any rate a higher calling than the law. Journalism also has obligations to serve the community by exposing wrongdoers, particularly those who subvert democracy by corruption, and to interest and / or amuse the customers. Techniques for adhering to those obligations are traversed in an appendix to this book.

The abolition of censorship in England in 1695 led to the invention of modern journalism in 1704. This instantly put endemic corruption in the trade of authority at risk of exposure, but hypocrisy required that censorship could not be openly reimposed. The devices chosen by the trade to obstruct scrutiny included censorship by libel and affront law, the evils of which adversely affect democracy to this day.

The common law purports to believe that libel concerns reputation, but legal historian Theordore Plucknett says libel was a 'political' crime from 1265, and Lord Chief. Justice Sir John Holt said in 1704 that 'it is very necessary for all governments that the people should have a good opinion of it [sic]'. Disobliging remarks about the Government were thus presumed to be criminal. True to its principle of not seeking the truth, the law still exercises a presumption of guilt against journalists accuses of libel; it assumes, on no evidence at all, that the report is false and damaging. This seems unfair to journalism and to the community and democracy; organs of the media are obliged by fear of heavy damages to daily mislead their customers by concealing their knowledge of the corrupt and organised criminals.

At the same time, the law claims that, for reasons of fairness, it must exercise a presumption of innocence in favour of organised criminals, the corrupt, rapists, serial killers, etc etc. As Justice James Stamples once observed, we need less law and more justice in our courts. And, one might add, less hypocrisy.

In October 1994 the Australian High Court made something of an advance towards democracy; in a 4-3 decision, it removed the presumption that a report is false, but only in terms of politicians. In the majority were Chief Justice Sir Anthony Mason and Justices John Toohey, William Deane and Mary Gaudron. In the minority were Justices Gerard Brennan, Daryl Dawson and Michael McHugh.

The intellectual basis of the voodoo and the refusal to seek the truth would of course collapse if it were to emerge that jurors are capable of resisting bias. Elements of the Australian High Court seem to be moving towards accepting that. In Glennon (1992), Chief Justice Sir Anthony Mason and Justice John Toohey quoted Toohey in Hinch (1987): '... in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear…’

And in the context of blanket coverage of the murder of the former wife of a onetime footballer, Orenthal J. Simpson, Susan Wyndham reported in The Australian of 23 September 1994: 'A recent study found that press-induced bias is a serious problem in only one in 10,000 cases.' If jurors, instructed by a judge, are capable of resisting bias from material outside the court, they must be able to resist bias from material inside it. This seems confirmed by a 1990 US case concerning John Gotti, head of the Gambino Mafia family, the richest and most powerful group of organised criminals in the US, apart from white collar types. New York prosecutors claimed he had ordered an assault; a guilty verdict could have put him in prison for 25 years. He was found not guilty. Jurors then revealed that initially six were for not guilty, four for guilty, and two were undecided. After repeatedly listening to prosecution tapes over three days, all were convinced that Gotti was the leader of an organised crime family and that he and a co-accused were 'thugs and mobsters', but that there was not enough evidence to convict him. The foreman, retired teacher William Buchanan, said: 'I have to admit that voting not guilty was a very unpleasant result for me. I felt truly that he was guilty as hell, but I have to admit that the evidence just didn't hold up.' Sydney juries similarly twice found one Roger Rogerson not guilty of serious crimes despite what may have seemed a mountain of prejudicial material outside and inside the court.

The common law may thus seem a huge and costly edifice built on a false assumption: that jurors are stupid. (It may incidentally be noted that English economics is built on a false assumption: that competition works perfectly in a free market.) If so, intellectually honesty would require consideration of a change to a legal system that, like journalism, seeks the truth, e.g. the (European) civil law investigative system.

The civil law and the common law are so different that one must be wrong. The civil law believes that members of the community are not stupid; that jurors are capable of giving proper weight to all the evidence; and hence that a criminal trial can, and should, be a rational investigation into the truth. To that end, no relevant evidence is concealed; lawyers have virtually no role; the judge questions the witnesses; the accused must give evidence; in some European countries, e.g. France, the judge and jurors sit together and reach a verdict and penalty together.

The comparative utility of the two systems was definitively exposed by the Fitzgerald inquiry into the truth of corruption in Queensland and the subsequent common law trial of the corrupt, Police Commissioner, Sir (as he then was) Terry Lewis. Gerald Fitzgerald QC used the investigative techniques of a civil law court to produce a mountain of evidence that left no doubt of Lewis's guilt. However, the trial judge told the jurors it would be dangerous to convict him: the only evidence against him was that of an accomplice, and that, he said, was worthless. (He could not tell them that, for reasons of fairness, he had felt obliged to use the discretion to exclude a good deal of evidence tending to prove the case against Lewis.) A courageous jury found Lewis guilty, but it took them five days. A reporter, Jason Gagliardi, then made what struck me as a similar advance in journalism: under a heading WHAT THE JURY DIDN'T HEAR, he published in The Courier-Mail some of the evidence that had been excluded from the jury. His editor, Desmond Houghton, then made a further advance: he instructed his reporters that in major cases they were to note evidence concealed from the jurors, and to publish it at the conclusion of the trial.

Many in the community may thus regret that the Comte de la Perouse did not annex New South Wales for France when he was in Botany Bay in January 1788: the law would be better, not to mention the food and the anthem. Sir Anthony Mason certainly believes that discussion of a European option should be on the agenda. Noting in March 1994 that common law rules for concealing evidence may produce injustice, the Chief Justice put the question squarely to his brother lawyers and to the community, including their representatives in Parliament: 'Are we prepared to make more radical changes to the common law adversary system which would bring it closer to the civil law system?'

Meanwhile, the voodoo is at once the common law's curse and shield: non-lawyers, including reporters, who find it unintelligible may lack the confidence to adhere to Lord Scarman's injunction to help society judge the quality of justice administered in its name. I hope this book may go some way towards repairing the deficiency.

Evan Whitton, 1994

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