The courtroom drama holds a large place in Anglo-Saxon culture. Other countries do not have anything quite like it. The French have their dramas with crimes of high passion, but there is a presumption that the ends will be tidied up in a matter-of-fact way by the judicial system. In continental Europe, the drama ends before the courtroom door; in Anglo-Saxon countries the drama is set there.
The Anglo-Saxon courtroom provides drama’s most important ingredient _ uncertainty. What will happen? “”How to you find the accused? Guilty or Not Guilty.” “”Do you find for the plaintiff or the defendant?” The dramatic tension comes because the audience knows the case can equally go one way or the other. And whole plot lines have been very easily built around courtroom verdicts because the truth can just as easily be something quite different from the verdict or can coincide with it. There would be no dramatic point if verdicts are routinely right. Anglo-Saxon law, therefore provides plenty of material for both the writer or film-maker of fiction and non-fiction.
All this dramatic material and entertainment would be lost if we were silly enough to change the fundamentals of our law so that it was more predictable and that verdicts coincided with the truth more often. Have no fear, when the Federal Government brings down its response this month (MARCH) to the report of the Access to Justice advisory committee, there is no danger it will do anything to take away this fruitful source of dramatic material. The masterful public-relations con job that the common law has perpetrated on Anglo-Saxon societies for more than 100 years has been far too effective for that. The greater the lie and the more often you repeat it the more likely it is to be believed. Under “”our system” it is better that 10 guilty go free than one innocent person gets convicted.
It is a double fraud: the 10 guilty go free and the innocent get convicted (Chamberlain, Splatt, Puhl, Stuart, Hilton bombing, Guildford Four, Birmingham Six, Evans, to name the notorious). And even if the saying were true we should not be proud of a system that gets it right in only one case out of eleven. There is no justice to the community it setting 10 guilty people free to prey again on the community. It is a cop out to say you have to let 10 got free because if you don’t one innocent might get convicted. A quality-control officer would not accept chucking out 11 new cars just because a defective one might get through. He would quite rightly change the assembly line and workforce on it. The recently published Trial by Voodoo by Evan Whitton details case after case where the law has gone sadly wrong. He concludes that the two biggest impediments to justice are the adversary system and the rules of evidence.
These are the conclusions of a journalist. Sneer as you might, but Whitton points out that it was journalism that uncovered the corruption in Queensland; that extracted the truth about Theiss paying bribes to Sir Joh Bjelke-Petersen; that uncovered the Chelmsford scandal and a dozen others. When the law moved in afterwards, a lot of the truth got hidden and the guilty went free. Whitton argues that the adversary system geared at winning, not establishing the truth. The rules of evidence which exclude nearly all hearsay (that is repetition of statements made outside the court) prevent juries from getting near the truth. The rules treat juries as morons, incapable of giving appropriately different weight to things said in court directly by a witness about what he saw to things being repeated by the witness about what he heard.
It makes depressing reading. What makes more depressing reading is the Access to Justice report because this _ the foundation of the Federal Government’s attempt to make the legal system more workable _ hardly mentions the adversary system or the rules of evidence. The report has a lot of good recommendations about reforming the legal profession, Aborigines and the law, helping the poor get access to the law and so on. But the report’s very title defines the problem on mindset. The words “”access to justice” imply there is “”justice” or a “”system of justice” and all you have to do is get people into it or give them access to it and all will be well. Because the report was mostly written by lawyers, no thought was given to the proposition that this “”justice” we are striving to give everyone access to might itself fundamentally flawed and in need of reform. Essentially, the report has got the thing around the wrong way _ as so many other reports about reforming the legal system have before it. Once you get rid of the expensive voodoo of an adversary system with highly technical and exclusionary evidence rules, access to the system will flow far more easily. The trouble is that lawyers and judges have been so imbued with common-law propaganda they cannot and will not think any other way. The task for Australian society is to rethink centuries of legal belief. It is similar to the task faced by a tiny few scientists culminating in Louis Pasteur in convincing the medical world that disease did not generate spontaneously, but by microbes. We are told that the common law is based on human experience. Yet the rule that a jury can draw no inference from silence flies in the face of human experience. And the rule against hearsay evidence presupposes an artificial world where only direct evidence of what was seen can be used.
In human experience, most of the knowledge of most people comes from hearsay, particularly a culmination of hearsay pointing in one direction: but the courts exclude this and it is given no weight; whereas human experience tells us that when a solid core of people in close proximity to the events tell us what several people told them about the event and it all reasonably matches, then it should carry some weight, especially if the direct evidence does not contradict it. Human experience tells us we should draw conclusions about the guilt of people exercising their “”right to silence”, yet the law prohibits it. We are told that the adversary system leads to the truth. Nonsense. Inquiry looking at all the evidence leads to the truth. The adversary system leads to suppression of evidence as the two sides battle it out to win. Moreover, it means the rich who can afford good adversary lawyers win _ both civil and criminal cases.
For too long the common law has played upon xenophobia. Its supporters say it is the best guarantor of freedom (because it is British or “”our system”) and those funny foreigners know nothing of freedom. This is a con job. The con job has put a very nasty connotation on the word “”inquisitorial”. It has the image of the Spanish inquisition extracting confessions by torture. It should have the image of a patient research scientist inquiring into everything in search for the truth. For too long the jury, and the jury alone, has been regarded as the bastion of freedom. Nonsense. Juries are invariably perplexed, ignorant and utterly confused after adversary lawyers get judges to exclude critical parts of the jig-saw with clever use of evidence law.
There is no reason why we cannot allow all the evidence in, including hearsay and let the judge sit with the jury during deliberation to advise and warn. Defamation law makes it hard to give examples of where the guilty go free under our present system. But there is a stark example of the innocent getting convicted under the adversary system where the inquisitorial system got it right. Under Australian law coroners use the inquisitorial method _ asking the questions taking in all the evidence (not just those bits that survive technical challenge). And in the Chamberlain case the first coroner got it right _ the dingo took the baby. Sadly, this month the Federal Government, advised by lawyers, will not learn from this and other cases. It will tinker at the edges, worrying too much about greater access without asking: “”Access to what?” Trial by Voodoo.