Federal Attorney-General Daryl Williams has asked for the impossible.
He wants a referee with both hands tied behind his back and a gag in his mouth to take control of a wrestling match in which the original wrestlers are hapless by-standers to be replaced in the ring by their seconds who will not heed the time bell but will fight using everything at their disposal.
This week Williams called on the judiciary to help with the task of reducing the cost of justice. The trouble is the judges cannot do much. In our adversary legal system, the lawyers have virtually a free hand to present their clients’ cases as they see fit. The judges have a very passive role. The theory is that truth will come out best if two adversaries test each other and the judge sums up and decides at the end.
The more money a client has (whether his own or from legal aid) the more time and effort can go into testing the other side’s case, and there is little the judiciary can do about it.
However, Williams got on the right track last week when he held fast on the amount of legal aid the Commonwealth was going to make available to the states. Significantly, since the Commonwealth cut back on legal aid, state legal aid commissions have had to streamline the way they pay lawyers. They have done radical things like pay them fixed amounts. And surprise, surprise hearing times have come down for legal-aid cases.
Legal aid is a bit like freeway-building. The more freeways you build the more cars clog the system.
The answer is not to provide ever more legal aid, but to streamline the legal system without compromising justice.
As it happens, also last week, journalist Evan Whitton launched his most recent book, The Cartel, Lawyers and their Nine Magic Tricks (Herwick). It follows themes in his earlier work Trial by Voodoo.
Whitton, who has covered numerous inquiries and trials, is a strong critic of our legal system. (He is careful not to call it a justice system.) Unlike many other critics he is also concerned that too many guilty people get off as well as innocent people getting convicted. I think he overstates the case on the guilty getting off when he says 80 per cent of guilty people tried are acquitted.
None the less he makes some pertinent criticisms of our system and says that the legal fraternity has managed to win the public-relations war over the British system of justice, in that few people would accept that the European system is superior. Whitton points out, though, that this might be changing.
The Anglo legal fraternity point to the European inquisitorial system quite pejoratively. They paint a picture of it as one in which people are presumed guilty until proven innocent; in which state-appointed judges actively pursue offenders; and in which suspects can be interrogated and must answer.
In fact the European system presumes neither guilt nor innocence. The judge does take an active role, but this can often protect the wrongly accused. And why shouldn’t suspects be asked questions at trial and juries and judges draw inferences from silence. The innocent should have nothing to hide.
The essential trouble with the common-law system is that the lawyers control it. In both criminal and civil cases they pursue victory for their client, rather than the truth. For example, Whitton quotes Stuart Littlemore, QC, as saying, “”You really feel you have done something when you get the guilty off.”
In the European system, the judges control the system. Indeed, they take charge of a criminal case from the very start of police investigation. They can summon witnesses, including experts, in order to seek out the truth. In our system, the judge is stuck with whatever witnesses the lawyers bring up for their clients. In the case of expert witnesses, the experts are usually chosen more on how they can help the client win, rather than how they can help reach the truth. Usually experts in our system are of little value.
The judiciary can still remain independent.
I think that Whitton relies too much on the virtues of the European system. It no doubt has its defects, too.
None the less, our system is probably more defective. In the week since Whitton’s book has come out it has been roundly condemned by members of the legal profession, who have the most to lose by radical change. But few, if any, people in the lay community would deny our legal system is too costly and has too much delay.
It is rare indeed to find anyone out side the legal profession who has a decent word to say of their experiences in the legal system, in the way that you can find people full of praise for the hospital system despite the miserable circumstances they are in, or mechanics, or electricians and so on.
The silliest part of our system must be the jury. Legal propagandists over the centuries have sold it as a bulwark against oppression and injustice, but it has little to commend it.
Fancy drawing 12 people out of a hat to sit in a courtroom for several days or weeks and then to make a verdict without having to give reasons. It is absurd, when you think about it. A decision without reasons is capricious and rightly open to allegations of being made in stupidity, ignorance, lack of diligence or being improperly led by one or two members. It is made worse by the fact that jury secrecy provisions make it well nigh impossible for anyone to do decent research into whether juries make proper decisions.
I think that in the absence of juries giving reasons for decisions, you would have to start with the presumption that the decisions are made badly. Those who think a system that provides decisions of either just “”guilty” or “”not guilty” should demonstrate it.
The judge and a jury should work together to produce a verdict and give reasons for it.
Our rules of evidence don’t help. Whitton exaggerates when he says our system will not allow evidence that demonstrates patterns of behaviour (similar-fact evidence). Our system does allow it, but it restricts it. It also restricts hearsay evidence, and more importantly evidence that would unduly prejudice a case out of proportion to its probative value.
The trouble is we have bent over backwards to protect the accused with rules that exclude evidence that people in their ordinary lives would use all the time as guides to coming to conclusions. Far too much time in trials is taken up with arguments about whether evidence is admissible. Often the evidence is heard twice: once before a judge alone on the question of whether it is admissible and again before the judge and jury if it is. If the evidence gets excluded, the guilty usually get off. It would be better to include more evidence and get the judge to work with the jury to explain the dangers and weight of each body of evidence and to give reasons about what evidence led them to their conclusions.
Changes of this type, however, would require a redirection of resources. The state would have to put up more resources in the form of more active judges, who would be trained as judges from Day One, rather than being selected from the ranks of senior lawyers. In return, though, the community would not have to put up with the huge expense of lawyers who are at present permitted to drag cases on chasing every rabbit down every burrow.
The referee needs a whistle.