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Issue #1457      2 June 2010

Book Review by Peter Andrew

Our Corrupt Legal System

by Evan Whitton

Not long ago, a former NSW Labor Premier, Bob Carr, in defending his opposition to a Bill of Rights said that we have a robust system of common law which has served Australia well. This is a view that many, including Evan Whitton – five times winner of the, Walkley Award and journalist of the year in 1983 – would find difficult to share. Many? According to Whitton “everyone is a victim … except rich criminals” and the reason for this can be understood upon examining the history of the adversarial system of justice.

The author chronicles the evolution of “significant” developments in the history of law including Egyptian, Greek, Roman and medieval law. The English (judge made) common law system emerged in 1166, 84 years after the beginning of the British Empire, “a criminal enterprise based on theft of land and later of human beings”. The common law was not based on a “search for the truth”. Moreover it allowed untrained British judges and lawyers to take control of the civil process in the 17th century and the criminal process early in the 19th century. All of this occurred “in a culture of trickle-down extortion in the public sector (forming) a cartel to maximise profits and protect their interests”.

He goes on to include a list of 24 “anti-truth devices” seven of which involve ways to conceal evidence. Others include improper use of presumption of innocence, precedent; plea bargaining, preliminary hearings, cross examination and delay. Delay equals increased costs. Charles Dickens observed “The one great principle of the English Law is to make business for itself”.

Is it therefore realistic to expect judges, as former lawyers, to shed the connections or the odium that accrues from exposure to an environment that involves representing the interests of commercial enterprises, tax evaders and racketeers? Harvard ethics professor Arthur Applbaum in Harvard Law Review 1995 said, “lawyers might accurately be described as serial liars because they repeatedly try to induce others to believe the truth of propositions, or the validity of arguments they believe to be false.

Law professor Harry Whitmore, in a leading article in the Sydney Morning Herald, April 6, 1981, “Justice Denied by an Outdated Legal System”, called for a massive overhaul of the Australian adversary system. He said, “… it is a process which is [as] likely to distort the truth as to reveal it. The technique is often a charade – which is only supported by the coaching of witnesses outside the courtroom – leading to tactics and deliberate or accidental manufacture, or suppression of evidence. It is, a procedure which results in bullying, role playing, absurd tactical manoeuvring and denial of justice”.

US Chief Justice (1969-86) Warren Burger told the American Bar Association in 1984: “Trials by the adversary contest must in time go by way of the ancient battle by blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilised people”.

Professor David Luban (Lawyers and Justice an ethical study) of Harvard said: “The OJ Simpson trial has persuaded most Americans that the adversary system is at best grotesque”.

Whitton comments that the grotesquerie is caused by “a cartel of lawyers and judges (who) run the system as a business; the system does not seek the truth; trial lawyers i.e. trained liars are in charge of evidence; judges are untrained former trial lawyers. As a consequence too many innocent people go to prison; too many criminals get off; civil hearings take too long”.

Whitton says the alternative is the investigative system, as practised in Europe, with some modifications. “There is no cartel”. In Europe judges are not political appointees or recruited from the ranks of senior counsel. They are trained to be judges at university. “The judge sits without a jury and does not conceal evidence from himself. France in common with other civil law countries does not have any exclusionary rules of evidence”. The cost of litigation is significantly less in Germany and France, the former being the preferred choice for some English companies with European connections.

The author notes that Our Corrupt Legal System is an updated and restructured version of Serial Liars published in 2005. This work is a carefully crafted and more detailed examination of the historical background to the British legal system. The book is fully indexed with a bibliography referring to 58 publications and includes a list of definitions.

Evan Whitton was editor of the National Times, Chief Reporter at The Sydney Morning Herald and Reader in Journalism at Queensland University. In 1983 he was voted Journalist of the Year for “courage and innovation” in reporting an inquiry into judicial corruption. He is also a contributor to the legal journal Justinian published by Richard Ackland. Our Corrupt Legal System, his eighth book, is occasionally humorous, essentially serious and ultimately profoundly disturbing.

Available Angus & Robertson, Glee Books, Glebe.

Peter Andrew, committee Flac (For Legally Abused Citizens).  

Next article – Rise in young people in detention

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