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

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Justinian 20 March 2006 – Evan Whitton – “The merde is everywhere”

What happens when a lawyer gives advice on his mobile while in the gents? Plus war crimes tribunals – a great new earner even though a failing experiment. Slobbo’s tribunal chewed up $1.6 billion partly because there was an attempt to converge the adversarial and pro-truth sysetms.

The word from the O.K. Cole inquiry is that the shit is deep and rising. That commodity unfortunately seems to be the leitmotif of this fortnight’s piece.

The letters page of The Old Lady of Darling Harbour, aka The Sydney Morning Herald, has lately carried vile assertions about pillars of society.

On Monday, March 13, Mr Patrick Snowden, of Epping, reported hearing “a lawyer giving advice in the gents from his mobile while occupying the throne. Maybe though this was just evidence of that other commonly held view as to what some male lawyers are full of”.

Next day, Mr Matthew Thomason, of Dulwich Hill, waded in with: “Obviously, Patrick Snowden’s WC QC (Letters, March 13,) misheard the head of chambers, and thought he had to bill his client in six-minute excrements.”

The editor should have a care. The good Irish girl who called herself Lola Montez (1821-61) set a useful precedent in 1855: she horsewhipped Harry Seekamp, editor of The Ballarat Times, for insinuating that her famed Tarantula Dance was full of it.

A verdict reported in The Daily Maudlin (Brave Tot yada yada yada), aka The (Sydney) Daily Telegraph, on Saturday March 4 raises a big question: would the “provoked” defence work for a henpecked husband?

Prosecutor Ray Elston said former school teacher Claire MacDonald, 39, murdered her spouse, Warren, 40, in cold blood on their property 90 km north-east of Melbourne on the night of Wednesday, September 30, 2004, i.e. she put on camouflage gear; hid in a “sniper’s nest” of bushes for an hour and a half; and then drilled him with six bullets. Jim Montgomery, for Mrs MacDonald, said that for years her husband had abused her physically, psychologically and sexually, and that earlier that Wednesday he had accused her of incorrectly storing potatoes in the cellar and raped her.

Montgomery invoked the adversary system’s priceless gift to criminal accused. He said Elston would have to prove “beyond reasonable doubt” that she did not kill him in self-defence or after being provoked.

The jury said Mrs MacDonald was not guilty of manslaughtering – let alone murdering – her husband. This is bad news for barristers who cannot leave that adversarial crap at the court door. They risk provoking their spouse to take, with impunity, a certain course.

Still on adversarial crap, the Slobbo debacle took four years to get within months of a result. One reason was that he was charged with perpetrating every known crime, including jaywalking, in Kosovo, Croatia and Bosnia-Herzegovina. That approach can be remedied by the application of a little common sense. A more intractable problem derives from the preternatural skill of common lawyers – driven by mammonism and dread of chill penury from a glut of young herpetoids – in finding new earners.

In England, legal aid, invented in 1949 by Sir Hartley (“We are the masters now”) Shawcross (1902-2003) –is both earner and problem. A London silk, Arthur Marriott, told a Sydney audience last October: “Perhaps the main impact of the [Legal Aid] Act was the extraordinary growth in the numbers of practising lawyers.” In an adversary system, legal aid is of course an adroit fraud on the public, who fondly believes that justice is truth. A further consideration is that tax money is diverted to people who claim an ethical obligation to defeat truth in the great cause of getting criminals off, and who may even stoop to spinning the process in an even greater cause of topping-up the emoluments.  

Another ripping earner is the commission of inquiry, as the horde of herps at the Wheaties event yet again demonstrates. The task is to find the truth, but they fail more often than not because commissioners tend to adopt a bastard mixture of the pro-truth inquisitorial system and the anti-truth adversary system. Which brings us back to that great new earner and noble but failing experiment, the war crimes tribunal.

In 1993, simpletons at the UN were persuaded to let common lawyers get a slice of the action, and of the legal aid, on the International Criminal Tribunal for former Yugoslavia (ICTY). Since then, the UN has pumped $A1.6 billion into the tribunal. The ICTY makes these damaging, if inaccurate, admissions:

“It [ICTY) has created an independent system of law, comprising of elements from adversarial and inquisitory criminal procedure traditions … It has established a unique legal aid system, and groomed a group of defence attorneys highly qualified to represent accused in war crimes proceedings.”

Judges from the adversary system were also let in, although they have the curious notion that justice is process, not truth. When Slobbo made a graceful exit on Saturday, March 11, the tribunal consisted of two from that system, Presiding Judge Patrick Robinson, of Jamaica, and Judge Iain Bonomy, of the UK, and one from the pro-truth system, Judge O-Gon Kwon, of South Korea. This is all terribly depressing, but there may be an upside, at least for the European Union.

Of the EU’s 25 members, only three, the UK, Ireland and Malta, are in the anti-truth tradition. The Slobbo debacle should remind the other 22 that “convergence” between the two systems would be inimical to justice, and would merely divert huge sums of money to adversarial crapsters.

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