Networked Knowledge - Media Report

[This edited version of the article has been prepared by Dr Robert N Moles]

The Evan Whitton homepage
Article: Australian law on miscarriages of justice
Article: UK law on miscarriages of justice
Article: USA law on miscarriages of justice

Justinian 6 March 2006 – Evan Whitton – “Cole off-beam on wheaties' privilege claim”

Ol King Cole has accepted the wheaties’ privilege claim. E. Whitton says he is wrong. The time for privilege is when, or if, the AWB boys are up before the courts … The moribund Labor Party should promise to install a Commonwealth ICAC, which would at least harvest the votes of the starving lawyers and the alienated. Legal historian John Selden (1584-1654) contributes a note to the lawyers’ calendar for 4/5 March:

“Ignorance of the law excuses no man; not that all men know the law, but because ‘tis an excuse every man will plead, and no man can tell how to confute him.”

Perhaps it’s time to consider two more excuses for prohibition: the apparent onset of senile dementia (“I cannot recall”), and “Nobody told me”.

An NZ-Australian doctor in the RAF, Flight-Lieutenant Malcolm Kendall-Smith, declined to make a third tour of Iraq, and was charged with “refusing to obey a lawful command”. His court-martial is scheduled to begin on Wednesday, March 15. His excuse looks impregnable: the war is clearly unlawful and the Nuremberg Defence has been inoperative for 60 years. Unfortunately, a court-martial can be as unjust as a trial for contempt or libel: the defendant is sandbagged by a presumption of guilt. If, for example, a naval boat runs aground, the captain is likely to go down even though he can prove maps supplied by the Navy were wrong. Dr. Kendall-Smith should probably take a toothbrush and a hefty airport book.

When is an inquiry not an inquiry?

When it accepts common law rules that conceal relevant evidence, e.g. the debacle of Harry Gibbs’s corruption inquiry in Brisbane in 1963-64.

Her Majesty has instructed the Hon T. Rhoderic Hudson (OK) Cole QC, 68, to inquire into whether wheat deals involving huge bribes to Mr S. Hussein “might have constituted a breach of any [Australian] law”, and “whether the question of criminal … proceedings should be referred to the relevant … agency”.

However, as noted elsewhere in these pages, and by our proprietor in the SMH of Friday, March 3, the Wheat Board has claimed it does not have to produce certain documents because of legal profession privilege. The privilege is of course thoroughly dubious in origin and effect. As Bentham noted in 1827, it has no legitimate purpose: if the client is innocent, disclosure cannot hurt him; if guilty, disclosure cannot cause injustice. Nonetheless, Terry seems to have accepted the wheaties’ claim. I think he’s wrong; the time to claim the privilege is when, or if, they get into a common law trial. Hence my helpful submission to the Oil For Food commissioner on January 27. It read in part:

“By definition, an inquiry is an investigation into the truth, and you are not bound by common law rules, including the privilege of client-lawyer secrecy, which conceal the truth. It follows that persons who seek to use the privilege to conceal documents – and hence the truth – from you put themselves at risk of adverse inferences and charges of contempt. Those masters of bland hypocrisy, the Brits, taught us how to use euphemism to soften the truth, e.g. document retention (shredding), rendition (outsourcing torture), kickback (bribe / extortion).

Likewise cover-up. F. Stratton (The Dancer) McAlary QC (pic) advised NSW Ombudsman George Masterman QC on July 4, 1985:

”[There is] evidence to establish beyond reasonable doubt that an agreement was made between police officers to cover up the events of the night of 1 July [1983] by preventing their proper investigation … Accordingly, I conclude that there was a conspiracy to pervert the course of justice.”

A cover-up can thus be a crime, perversion of justice, but politicians have almost persuaded us that shrouding the truth in a blizzard of words, e.g. at Question Time, is no more than routine naughtiness to obscure some trifling embarrassment.

They usually get away with it because there is no mechanism to bring them to book, and because cynical “insider/access” reptiles fail, on behalf of the community, to express outrage at the debauchery of democracy, and so increase alienation from both the political process and their organ.

It can be different when a cover-up somehow gets into the legal system. America ’s first law officer and others went to prison for covering up a “third-rate burglary” at the Watergate complex, and the punters decisively expressed affront after President G. Rudolph Ford pardoned the architect of the perversion, President R. Milhous Nixon. They voted Ford out and an obscure peanut farmer in. All of which suggests that the moribund Labor Party can inch back from the sepulchre simply by swearing to install a federal independent commission against corruption. They would at least harvest the votes of starving lawyers and the alienated.

If an ICAC existed, the commissioner and his lawyers would now be pondering a question of vast import: who, if any, among a largish number of bureaucrats, intelligence operatives and politicians, including Jackie, Bunter and Maida Vaile, covered up bribes to Mr Hussein? The government says it was not aware of the bribes, and we naturally believe them. On the other hand, an SMH poll published on Tuesday, February 28 said 70 percent of those who know of the inquiry believe the government WAS aware.

Top of Page