The success of the Wood Royal Commission into police corruption has been widely applauded.
But we have to ask why it has been successful. And the reason may not be very palatable because it flies in the face of generations of unquestioning veneration of the British system of justice.
Wood succeeded where other inquiries have failed. The Independent Commission Against Corruption was singularly ineffectual in uncovering the corruption and nailing those who engaged in it, even though a range of informed people in NSW knew it was going on. Those people included journalists and Members of Parliament.
Similarly in Queensland, the later-to-be Chief Justice of Australia Harry Gibbs conducted an inquiry into prostitution and gaming in Queensland in the 1960s which came to the laughable conclusion that there was no evidence that it was going on when anyone who knew anyone in Brisbane knew. And there are others.
Also, there have been many criminal trials where plainly guilty people have not been convicted. (Naughty, naughty, I mustn’t say plainly guilty people have been found not guilty. That does not happen under the British system.)
Yet Wood has managed to nail corruption and point to the people, mainly police, who engaged in it. What did he do that the usual system of justice failed to do? The standard answer has been that he insisted that no NSW police be used in the investigation, unlike some previous investigations. It meant police could not forewarn their corrupt mates.
It is a convenient _ but misleading _ explanation. It is convenient because it does not undermine faith in our established court system. It just says when you investigate corrupt cops you don’t get corrupt cops to help you. Easy. But it is only a part, and a minor part, of the reason Wood has succeeded.
It is not what Wood did, but how he did it that counts. When you analyse how he did what he did, you see that he abandoned nearly all the usual methods of the British system of justice.
There is only one conclusion: that his method of seeking out the truth is vastly superior and more effective than what goes on in Australian criminal courts day after day.
Wood may have the title “”Justice” and he may be surrounded by lawyers who are versed in the British system, but he is not using British-Australian methods. He is using the methods of continental Europe. These methods have been subjected to centuries of English propaganda and most lawyers brought up int he English system revile them. More of that anon. But first to Wood’s methods.
The first is the use of hearsay evidence. The commission often used second-hand evidence _ what someone told someone else. It was very effective because it often was the starting point for a pattern which then led to a confession or other direct evidence.
In normal trial, hearsay is knocked out immediately. There is no chance of building up a pattern.
Second is the use of other evidence that would be excluded in a trial. For example, earlier this week Wood asked Chief Superintendent Rod Harvey to look through a file of ugly photos of pedaephilia. Wood asked him if he would agreed that a jury, shown the photos, would need only to deliberate for a few seconds to find the offender guilty.
Wrong. The jury would probably never get to see the photos. Under the British system evidence is excluded if its prejudicial character outweighs its probative worth. So unless there is a raft of other evidence proving the accused actually took the photos (as distinct from merely being found in his possession), the photos might never go to the jury.
These two evidence rules presume the jury are idiots who will take one look at photos of a crime and convict whomever is in the box, or are too stupid to realise that second-hand evidence has to be discounted a bit, but it is at least worth something, especially if a pattern builds up.
Remember Justice Wood putting away a chap who refused to answer questions because they might incriminate him? In the commission, Wood could ask whatever he liked of people accused of criminal conduct. He could force answers, or at least draw inferences from silence. Not so in the courts.
Witnesses, including those accused on criminal conduct, were recalled several times if necessary by the commission. This can be critical. As the story unfolds you should be able to ask new questions or the same questions prefaced by different facts. You cannot do that in a criminal trial. The Crown usually gets one bash only.
In many trials juries are left with bewildering holes because of evidence excluded on technicalities, instead of being allowed to hear and see all the evidence with appropriate warnings from the judge. Indeed, the judge should deliberate with the jury, as they do in parts of Europe.
The difference is that the commission is after the truth. In a trial, the lawyers are engaged in a contest to win and the judge sits back. In the commission the judge sits forward and asks lots of questions. The judge can call witnesses, whereas in a trial the defence very often refuses to call the accused and other witnesses who might be shaky.
The commission can cross-examine by surprise to expose liars.
“”You said X this morning Mr Fowler, now have a look at this video, do you still say X?”
Gasp, choke, confess.
In a criminal trial the accused has to know in quite some detail the case to be put against him. He has time to prepare his lies.
Of greatest import was that the commission had lawyers working on the investigation from the outset. Police so often get a narrow view and can seize on a suspect, closing off other avenues. Lawyers should be involved in investigations very early. The prosecuting magistrate should become engaged in the case from the discovery of the body.
The Wood commission has been so successful because the judge has been engaged in the investigation from the outset. He has called witnesses and asked questions. That is not permitted in British-system trial because the judge could get prejudiced.
There has been centuries of propaganda against the continental system. The spectre of the Spanish Inquisition burning people (far fewer than the English) or the French inquisitorial system with the inevitable result of taking the innocent accused to the guillotine.
Meanwhile, the British system ensures that it is better than 10 guilty go free than one is convicted. (Not a very good success rate.)
But it is better. What have all these so-called safeguards of procedural fairness done? They did not save Evans, Chamberlain, Splatt and others. But they have let of guilty go free with the result of a rotten NSW police force and otherwise good cops setting up convictions through frustration. And the whole society suffers.
The lesson of the Wood commission is not the obvious one that you don’t send NSW cops to catch NSW cops. But that you do not use the British justice system if you want to find the truth.
The Wood commission tells us about the strength of inquisitorial methods over adversarial methods. (And by inquisitorial, I mean inquiry not the use of the thumbscrew.) Clearly all of the commission’s methods cannot be brought into the criminal-justice system, but our present system with its costs, delays and indifferent results can use a revamp along those lines.
It will be instructive to see how few of the police Wood has patently exposed as corrupt get convicted when they are handed over to the flawed adversary system.
No system is perfect, but the starkly different results the Wood commission has achieved against standard methods shows clearly we can learn something from other systems.