The dreamtime of a ghost-seer

Reflections on the law and other things by a lawyer in autumn

(Serial form)

When I read with Daryl Dawson, he was a subscriber to the Mary Martin Book Club.  It was a good source of books based in Adelaide.  This would become part of a kind of disease, from which I still suffer, of becoming an insatiable book buyer.  I would go on to amass a huge law library in the faith that it might be a good basis of investment.  I had a collection that was marvelled at and which gave me great assurance and pleasure.  But the computers would end all that – and create endless hazards of minefields of precedents and inducements to very average lawyers to lay out their ambitions on the World Wide Web – just one of many ill effects of that revolution.  About the first book I got from Mary Martin was one by Somerset Maugham, Ten Famous Novels and their Authors – big hitters like Tolstoy, Balzac, Dickens and Melville.  I was horrified to see that I had not read one of the ten novels.  I used to collect the great classics to read on vacations.  I was usually working at least six and a half days a week and most nights, so the great novels and histories were laid up for vacation.  I insisted on five weeks in summer and two in winter – at a time when I could and did put all work out of my reach.  I made it my business to read the great novels – the big ones at least two or three times.  The big three are Don Quixote, War and Peace, and Ulysses.  I have read those three times – as with the big ones of Dostoevsky, Balzac, Dickens and Flaubert.  They all become old friends – like favourite movies or operas.  I also tried to stay in touch with our writers – I have a hard-back of each novel of Patrick White, and I have read Riders in the Chariot three times.  The great novels for me are like the theatre, opera, philosophy and history – utterly indispensable.  I do not entirely jest when I say that I read history for entertainment and the great novels to see what makes the world tick.  It saddens me greatly that so many go through life without sharing treasure that is way beyond measure and without which I would be so much worse off.

*

We may try to steer clear of Australians when abroad, but now and then the sound of home may come as a comfort.  When we got to Moscow from Athens – the sloppiest airport via the sloppiest airline – we were held up for three hours in customs.  Then I was told that our night at the Bolshoi had been cancelled.  That was a major reason for our being there.  I was very dirty on the world.  When we got to our hotel, a faded and drab monolith, there was another queue and another delay.  I heard some Australian accents behind me.  Two guys from the back blocks of New South Wales.  ‘I just got in from Athens.’  ‘So did we.’ ‘I was at a law conference.’  ‘So were we.’  ‘I did not see you there.’  ‘We were not big attenders.’  (I am prepared to swear to the accuracy of this report.)  ‘I hear they have cancelled the Bolshoi.’  ‘Yeah.  We thought we would go to the trots instead.’  Bliss.  The day after we got to Rio, I was standing under the famous statue of Christ on a glorious spring morning in the sun with that familiar haze of jet lag when I heard this unmistakeable accent.  ‘I don’t know how many hundred thousand cruzeroes this bloody beer cost, but it is worth every bloody one of them.’  More bliss.  The conference in Moscow was on international trade – which I did not think would loom large on the other side of Dubbo.  But who was I to talk?  The conference in Athens was on medicine in the law.

*

Doubtless I am not alone, but I have long had a love – hate relationship with Wagner and the Ring Cycle.  I went to both Adelaide versions and had booked the one scheduled for Brisbane 2020 – before the virus hit.  By chance one day another boxed set of the Ring (about my fifth)n – one of the Furtwangler versions –arrived at the Post Office at the same time as a book containing the full text as written by Wagner – including all the narrative and stage directions.  I played the short first of the four operas, Das Rheingold – just over two hours – with the text in front of me – not just the liner notes.  It put the whole show in a very different light for me.  This is real musical theatre – as if the stage was right there in front of me.  Only a fanatic would say that the poetry has unique value as such, but listening to the music – especially in the dialogues – with the text really gives you very high theatre.  I shall repeat the dose on the other three operas – on which my views are evolving, and will then watch the full set as done by Chéreau at Bayreuth – that is in my view the best available on DVD.  But no power on earth will get me to front up for Tristan or Parsifal again.  Simone Young gave a talk about Tristan and said we might get the long version.  We evidently did, and it could have killed me.  Two of the three acts of Parsifal take place on Good Friday, and if you still have any appetite for it, look up what Mark Twain said about it at Bayreuth.  As balloon punctures go, he is one of the best.

*

Going back to my visit to Moscow, I met my partner John Beaven at the airport.  This was about 1988 – glasnost, but we still had a guide with us on the bus into the city from the airport.  John and I were swapping stories about the dead hand of communism – I wore red pants for the occasion – when we got to a point at about the distance of Moonee Ponds from the city centre (the Kremlin) when we came upon one of those vast heroic military monuments that such régimes long for.  We shut right up when the guide said ‘This is where we stopped the fascists in the Great Patriotic War.’  We really have had a cosseted life down here.  John was English and a banking lawyer, a very proper man and lawyer with a deep sense of humour.  But I was aware that he was fighting demons within and that he had become fascinated by Russia.  The therapy of this visit did not work for him.  His condition got steadily worse, until one day when he was missing, another partner, Gavin Forrest, and I drove down to his holiday house at Rye and found him dead in the car with the engine still running.  It was a fearful shock, but I was very taken with the warm way people across the whole office, including Sydney, responded.  I can recall that in his eulogy, Gavin Forrest said that ‘I am immensely proud that I was a friend of John Beaven.’  That may, I suppose, be one difference between life at the bar and as a partner in a law firm.  The word ‘partner’ has a resonance that you do not find at the bar.  Many years later, a barrister with whom I shared chambers took his own life.  I had known John was in danger, but the dead barrister had not given any indication of that level of risk.  Younger barristers around us were very upset.  I wrote a note for them about stress at the bar in which I mentioned John’s fate.  Some time later, the Bar News asked if they could publish it and I agreed.  A lot of people told me how glad they were that I had uttered some truths that had been hidden, but I had referred to the problems with alcohol of two heroes of the bar, and I was sent to Coventry by people I had been close to.  Truth, evidently, was not a defence.  I was very hurt, and I can still feel the wound.  Collegiate life may be fraught if you agitate the prima donnas that inevitably strut up.

The dreamtime of a ghost-seer – Part 5

Reflections on the law and other things by a lawyer in autumn

V

In the late 70’s and the first half of the 80’s, Neil McPhee and I fought a lot of cases for the VFL, as it then was, in seeking to uphold their rules, and for the press responding to prosecutions for contempt of court.  We lost all of them – at least all those that were fought through to judgment.  The law is against people’s freedom to trade for the supply of their labour being restrained by rules of those running the relevant market.  It was obvious that the League’s zoning rules were in restraint of trade.  The onus was on us to show that the restraint was ‘reasonable’.  We never managed that – and so Mr Packer and others were able, for better or worse, to go into the market – and the rewards for the players went sky high.  Those running cricket had been obdurate and mean, and no one should have been surprised by the explosion.  The contempt cases involved another difficulty that I will come back to. 

*

Over about the same period, Jim Kennan and I treated ourselves to a long lunch at the Society at the top end of Bourke Street about three or four times a year.  Crayfish legs for $2.50.  We would settle in until about 3pm, and then go to a bookshop or record shop, and end up for coffee and liqueur at the Windsor.  The clientele looked to be the Catholic hierarchy, racing identities, and up-market call girls.  I loved all of it.  It would be fair to say that I probably drank more, although I don’t think we ever got disorderly.  We walked into the Windsor one afternoon and Liv Ullman was at reception.  I had just bought a volume of poems – I think Browning – and I said I would get Ms Ullman’s autograph.  Jim was scandalised and hid behind an aspidistra.  (That is literally true.)  The actress was both charming and obliging and signed the book of poems.  Jim was relieved and we went back to the Hill of Content for another go at a bookshop.  Liv Ullman’s autobiography was on the shelves.  Jim bought a copy and wrote in it.  When I got home I saw what he had written.  ‘To Christine.  From a friend of a friend of the author.  J H K.’  That was all style.  Jim was always good for me, and I still miss him.  Just as I still miss another Jim from the law, Jim Merralls.  Each for me in his own and different way showed how we could try to do something good in our profession.  And each knew just how well off we were to have that opportunity.

*

‘Majesty’ is such a fine word – majestic, even.  Churchill concluded a speech to a spellbound U S Congress this way:

It is not given for us to peer into the mysteries of the future. Still, I avow my hope and faith, sure and inviolate, that in the days to come the British and American peoples will for their own safety and for the good of all walk together in majesty, in justice, and in peace.

Possibly only Churchill could have said that, and his American audience erupted.  They had heard of his oratory – and they had one of their own at that time – and now they had shared it.  He probably had in mind ‘the dignity or greatness of a sovereign’.  We are talking of the kind of dignity in a sovereign that we find in the offences of lèse majestie or laesae majestatis – ‘insulting the sovereign’ – that you can still find in regimes in Thailand or Turkey and which was probably the basis of the judgment adverse to Jesus of Nazareth:  the suggestion came – we know not from where – that the prisoner had claimed to be the King of the Jews – and that could be found to have queried the authority and power of Rome over that part of its empire that included what we now call Israel.  Pilate did not refer to the response of the prisoner that ‘My kingdom is not of this world’, and we might doubt whether that proposition would have been a defence to ‘wounding majesty’ which is the meaning of the French and Latin phrase above.  But that sense of majesty is precisely what I feel at that part of the second movement of the Eroica that I referred to before.  It makes sense, therefore, that the other comparison that occurs to me is Churchill’s reference to ‘those broad sunlit uplands.’

*

You might I suppose want to talk of the majesty of the law, but I incline to the view that such an attitude might best be left to the history of the law or visits to its birthplace, England.  I always dropped in on the Royal Courts of Justice on the Strand when I was in town.  (They are not far from Australia House that we used to repair to in the distant past on Mondays to check the footy scores.)  I don’t know whether it was just luck, but I always seemed to find myself listening to a barrister who looked very much at home and was as smooth as a baby’s bum.  A substantial part of the Victorian Bar turned up to tune into a fabled libel action between Jeffrey Archer and Rupert Murdoch.  Bob Alexander for the plaintiff was outright svelt.  But we thought that the cross-examination of Archer – who looked awful – was anaemic.  We thought that McPhee or Sher would have wiped the floor with him.  And the judge was so loaded against Murdoch that it was downright embarrassing.  So, we did not need to feed any chip on our shoulders.  As it happens, I think that the verdict was later set aside when the duplicity of Archer became known.

*

Which reminds me that my first jury trial was a libel action.  This was about 1974.  Gavan Griffith had advised the owner of a caravan park to sue the ANZ bank for libel for bouncing a cheque.  If a bank tells someone that its customer has insufficient funds to meet his obligations, that communication causes others to think less of the bank’s customer.  That is a libel – or, if you prefer, defamation.  The action was brought by the company that ran the carpark – it was run by a retired police officer, a doughty type who took offence at his bank’s rudeness.  The bank pleaded all the defences to libel – except qualified privilege – which I thought would have been unanswerable.  I spent the best part of a week learning about the law of libel.  I paid real money for the main text, Gatley.  I also had to find out about appearing before a jury, and to overcome nerves at stepping into the unknown.  One thing did trouble me – the company was in substance defunct.  How could it maintain the action?  What could the damage be?  Well, I was briefed to appear for the company by a reputable firm, and the bank was represented by my old firm and reputable counsel, who said nothing about the standing of my client.  So we went on.  I had cases on the law of libel coming out of my ears, so I was more than a little surprised to look up and see Judge ‘Slim’ Somervaille charging the County Court jury from the precedents part of a book about process in the County Court that was about half a century out of date.  The jury did the right thing and came back with a verdict.  For us.  I think the damages were assessed at $500.  That meant we got off the bottom row of costs.  I think my fee for the two days hearing, conferences, and about a week’s preparation would have come to less than $200.  It was all very gratifying.  I started to ease into libel generally.  My old firm acted for the ABC, and after a while I was specially retained by the national broadcaster, for whom I still have a soft spot.  I got to know Bernie Teague for Murdoch and Tony Smith for The Age, so that I was involved in most libel actions in Victoria on one side or the other.  Some of the press were very heavy handed and sought to beat up plaintiffs, especially politicians and celebrities, by arguing about very technical points of procedure – that I was learning all about.  I tried to discourage most people from suing – unless I thought the case was clear.  Then I could get a writ issued, and seek a speedy trial, and settle for, say, $20,000 and an apology.  I found all this very rewarding.  It is good to have one area in which you specialise, and are known for such, and in my view it is very unhealthy for lawyers only to act on only one side.  That can lead to a very dangerous closing of the mind. 

*

In addition to libel actions, I had to fight prosecutions for contempt.  They are different.  Your proprietor can write the cheque for damages for libel, but it cannot do your time for contempt.  The Crown had only to show that what our clients had published had a tendency to interfere with the course of justice.  That issue would be tried by a judge alone, and a lot of judges were worried that the press could abort criminal trials if they were not careful.  The crime is prescribed by the common law, and there is no limit on the penalty.  It is no understatement to say that we were kicking into the wind – sometimes a bloody gale.  The upshot was that a well-known broadcaster, Derryn Hinch, was sentenced to six weeks in prison for telling the truth on a matter of public interest – that a priest awaiting trial had prior convictions.  As the law then stood, there seemed to be no defence; that is still, I think the law, but it is very hard to imagine that the result would be the same today.  Still, it gave me something to dine out on at legal conferences in all parts of the world.  A large crowd turned up each day to show their hostility to Hinch.  I could feel it drilling into my back at the bar table.  I was glad I was with John Winneke.  The judge, Peter Murphy, was having trouble concealing his appetite to send Hinch to the slammer.  Then one day a woman came into court apparently to watch John Winneke in action.  She had just briefed him to act for her.  Her arrival caused quite a frisson.  This lady had her own special kind of presence – it was Lindy Chamberlain.

Dreamtime of a ghost-seer – Reflections on the law and other things by a lawyer in autumn

V

Philosophy does not have much to say for itself now.  I studied it for three years at Melbourne University, and I have since topped that up with summer courses at Oxford – and a lot of reading and writing.  It is a very good aid as a bullshit meter.  I am as interested in how philosophy helped Spinoza, Hume, Kant and Wittgenstein in their lives – and deaths – as in what they wrote.  (I wrote a book about them.)  And their lives are chock full of interest for me.  The lives of great people always are – biography is my chosen entrance into different fields of learning or experience – including the law.  We often wonder if philosophy might affect how other people act.  G E Moore was both respected and loved in England.  People like Russell and Keynes found his Principia Ethica to be a source of instruction on how to live.  Moore said that ‘verbal questions are properly left to the writers of dictionaries and other persons interested in literature; philosophy….has no concern with them.’  I had thought that English philosophy concerned itself with the meaning of words – and little else.  But Moore said that ‘good is undefinable.’  ‘…good is good and that is the end of the matter….good is a simple notion; .just as you cannot, by any manner of means, explain to anyone who does not already know it know what yellow is, so you cannot explain what good is.’  How many other terms are as undefinable as this one?  ‘Bad’?  If I say that  a meat pie or a rendition of Nessun Dorma or an afternoon siesta is ‘good’, can I resist explaining myself by saying that ‘good is good and that is the end of the matter’?  I am confident that this difficulty is not mine alone.  It does make you wonder if philosophy is still of any use.

*

Hannah Arendt had a very powerful mind and insight.  She said:

You know that the left think I am conservative and the conservatives sometimes think I am left or a maverick or God knows what.  And I must say I couldn’t care less.  I don’t think the real questions of this century will get any kind of illumination from this kind of thing.

There should be more of it.  Not least in those Australian newspapers that claim to be conservative.

*

At a wine-tasting course, the tutor asked us to taste wines and then take the mask off the bottle, and pass it round so that we idiots could compare notes.  One night we got a rare highlight.  ‘Did you say that this was a distinctive Hunter Valley Semillon?’  ‘Yes.  It is something they do so very well.’  ‘That’s curious.’  ‘Why do you say that?’  ‘Because the wine-maker thought it was a chardonnay.’  That left us idiots to smirk.  Another tutor sported what looked to be an expensively rouged nose.  ‘What would you choose to eat with this wine?’  ‘Why do you have to eat anything with it?  ‘Madam – a woman after my own heart.’  I did some tastings at Oxford – for a fee that could not be characterised as inconsequential.  Two undergraduate types made the awful mistake of making assumptions about the experience of the group.  My class included a gorgeous psychiatrist from Paris, a London partner in a leading international accounting firm, and a Californian wine maker.  When we expressed a lack of enthusiasm for their samples, one of them told me I was looking for ‘new world’ wines.  ‘I could not give a hoot where it comes from as long as I can feel its strength on my palate.’  Or grumpy words to that effect.  I suspect that that response was new world too.

*

For about my first five years at the Bar, I tutored and then lectured in law at RMIT.  The lectures were I think at 8.30 am, which meant that I would have to make arrangements if I had to be at, say, Ferntree Gully or Eltham by 10 am.  For trials in the County Court or Supreme Court, you would see the client at least a day before the hearing.  The case may have been started a year or so beforehand, but it was remarkable how often that it was only after you had been with the client for an hour or so that you found out what the point of the case really was.  Appeals to the County Court were rehearings of what had occurred before a magistrate – or the justices of the peace.  You would ring your clerk to find out which judge you had drawn – and sometimes you would advise the client to abandon the appeal since the judge you had drawn was renowned in the worst way for threatening to increase the penalty – and then executing on that threat.  On my first trial in the Supreme Court, the client was seeking repayment of a loan made many years ago.  I saw the client, who lived on King Island, some time before the hearing.  He was a bit vague about why he had not pressed the defendant for repayment years ago.  The defendant was a notorious criminal.  He was on a bond that forbade him to come within forty miles of the GPO in Melbourne.  At about 10 am on the morning of the hearing, I got a long distance phone call from the client.  He was at home and not budging.  I could hear the fear over the phone.  Mr Justice Lush asked my opponent if he had heard the name of the defendant – it was Jack Twist – from another jurisdiction of the court.  I forgot that I had subpoenaed the police file on Twist – until a nice man sitting at the back of the court showed me a bundle that would have accommodated more than one wheelbarrow.  A large part of your education at the Bar comes to learning to live with a lottery, but this was a lesson in a different form of chance.  The law is nowhere near being a perfect instrument.  It does after all depend on us.

*

My preferred mode of cooking is by casserole – the big French blue Le Creuset bowl with lid or the ridiculously expensive red saucepan and matching pan-lid.  You just braise the ox-tail, shanks or osso bucco in a little olive oil, and then do the same with vegetables and herbs in red wine and stock and cook for about four hours in a slow oven.  The sauce should finish with a golden meniscus.  In each case, the meat should fall comfortably off the bone.  The smaller ox-tail portions make for a wonderful ragout to have with gnocchi.  I use a generous spread of herbs from the garden, and I have been known to add some Bonox to the ox-tail.  The last goes well with a big shiraz from say McLaren Vale, the Grampians or the Hunter Valley (say, the Cricket Pitch).  The Wolf was very fond of all those meals – he was guaranteed a portion to clean up with and a bone.  The red was not so good for him.

*

The law consists of trying to work out what may be said or done in the future by looking at what was said and done in the past.  My addiction to history, and legal and constitutional history in particular, is in part my response to that simple truth.  I want to be there when the springs of Runnymede meet those of the Campaspe.  I idolise legal historians like Maitland, and I bought a whole set of the Year Books – our first case books from the Middle Ages – so that I could better understand Holmes’ The Common Law – that I read on average once a year.  I bought a set of Holdsworth, and State Trials, and whole shelves of ancient classics and legal biography.  I have given that library to the Victorian Bar, and there are times when I miss the comfort of its tactile presence.  The Ford Lectures offer their own form repose.  Today, English Feudalism, 1066 to 1166 turned up.  Professor Stenton spoke with great authority.  (So did his wife.)  These lectures were given in Hilary Term, 1929, at Oxford.  You did not then feel the need to offer a translation of the Latin.  And you know you have a heavyweight when he queries Maitland, or in a footnote he says that a charter he quotes was ‘obviously written by an illiterate clerk, and its bad grammar suggests that the rarity of early baronial charters of this type is due chiefly to the rarity of competent draftsmen in the Norman period.’  Quite so.  And for those of us sloppy enough to miss the grammatical solecisms, we get ‘[sic]’ – thrice.  But what caught my eye was that ‘whatever else a baron may have been, he was his lord’s counsellor…the quality enabling a baron to play his distinctive part in the life of the honour [estate] to which he belonged was not derived from wealth or rank alone.  It can best be described in modern terms as a sense of responsibility, the power of giving a reasoned opinion for his lord’s guidance….It was essentially the power of using experience and elementary legal knowledge in the interest of a lord.’ 

*

Well, that may I suppose be a rosy view, but it does look like a very English rosy view – and of a time when the English were coming to grips with what Blackstone called ‘the rude shock of the Norman Invasion’ – another very English proposition.  But I find this learning to be a great comfort – especially at a time (October, 2020) in Washington, Westminster and Canberra, when standards of sense and decency have gone clean out the window – for the want of a ‘sense of responsibility, the power of giving a reasoned opinion for his lord’s guidance.’  This observation calls to mind two propositions about the story of our English ancestry – and that of our history that comes from the forests of Germany.  The first is that if you want to understand the history of England, look upon it as the story of a moderately sized and competent cricket club.  The second is that the core of the feudal structure was elemental – you look after me and I will look after you – one takes homage and gives allegiance.  That also precisely defines the modus operandi of the Mafia.  Just picture Marlon Brando stroking the cat when the victim of injustice not dealt with by the law asks the godfather to be his friend.  And, homage given, the godfather says that one day that debt will be called up.  Protection then was not a racket – it was a way of life.  Professor Stenton concluded his book with a discussion of a remarkable charter between two great magnates in about 1150.  One covenants ‘on his Christianity’ and ‘saving the faith due to his liege lord’ on the circumstances of when one ‘goes against’ another –  the magnates limited their own independence in order that anarchy might be avoided.  It was like Mafia dons ‘making the peace’ – as if there were no central government; BYO law and order.

Dreamtime of a ghost-seer – Part 2

A stream of consciousness of an ageing white male – and a member of an elite, to boot

Reminiscences of a barrister in autumn

II

The dreadful time I had with a cab on arriving at Prague led me to a much better moment on leaving it.  I wanted to go to Lidice.  This was the site of a Czech town that Hitler had ordered to be liquidated as a reprisal for the assassination of Heydrich.  I ascertained that it was about twenty minutes on the other side of the airport and I ordered a car to take me there and then drop me at the airport.  This was shortly after the liberation following the fall of the wall, and I was given a guide as well as a driver.  The guide was a youngish woman schoolteacher.  She was just right.  I now regret not having turned to guides more often.  As we moved through the traffic outside the city centre, I said that Prague was gorgeous – ‘a chocolate box city, as it appeared in the film Amadeus.’  ‘Perhaps – but you have not been to the industrial estates where the skinheads are killing the gypsies.’

*

Blake & Riggall, where I did my articles in 1969 before going back as a partner in 1986, was a very old and Establishment law firm, almost as old as the colony that started in Port Philip.  It was of course exclusively male and Protestant, and I would have been the first partner who had even thought of voting for the party of the workers.  It was in many ways Dickensian.  During the year of our articles, Bob Paterson and I shared a room in the basement beyond the area allocated to the Titles Office clerks.  They took on a very old man from the T O, Mr Adams.  I think Mr Adams wore wing collars, but he unsettled some staff by retiring to his cubicle at lunchtime and going to sleep at the top of his desk in a foetal position.  One crusty old partner was Hubert Black.  He upbraided an articled clerk in the lift one day.  ‘Are you a Catholic?’  ‘Good God, no.  Why do you ask?’  ‘Then what are you doing with a brief addressed to F X Costigan?’  Well, we never though those days would never end and they did.  And thank Heaven for that.

*

Once in my life, I think, I had cross examined to effect and I was about to apply the death blow.  It was a difficult case of a lady who had her problems trying to set aside transactions in favour of her accountant that we said he had obtained through undue influence.  The defendant had just contradicted himself on a statutory declaration about the ownership of a motor vehicle.  Then from nowhere, the judge stopped the cross-examination and said that he wanted to warn the witness – who was represented by counsel who had just about tossed the towel in – about self-incrimination.  I could not believe it.  This was a quirk of a judge – ‘Ginger’ Southwell – who was known to advance something like the ‘sporting theory’ of justice.  The cross-examination was stopped and we lost the case.  It still riles me.  I have never forgiven the judge for doing something for no other apparent reason than that he could.  The relevant words are ‘arbitrary’ and ‘capricious’.  They are a denial of fairness or justice.  The client was very shaky – that was, after all, part of her case.  I had asked her what she might do if she lost.  ‘I will kill myself.’  I was instructed by a law clerk from England, Jim Saunders, who was straight out of Rumpole, and who had a wonderful old world charm.  He said, under his clear bright eyes: ‘I shouldn’t say that if I were you – it puts an unfair onus on counsel.’  Jim used to say that in London counsel would offer him sherry or tea.  I said he could forget sherry, but I invested in a tea-set of Wedgwood English Country Roses from which I still take my tea.  Only God knows if the poor lady carried out her threat, but I know that I had lost whatever innocence I still had about our justice system.  You can hardly tell what may happen of any case.  It is put up by real people and it will be resolved by real people.  And no real person is infallible.

*

Black Americans have produced jazz pianists that are out of this world.  Like Art Tatum or Erroll Garner.  Whitney Bailliett said:  ‘Tatum told me that he adored Erroll, and that was strange because they were so different.  Tatum was something of a stuffed shirt, while Erroll was so articulate in his street-smart way.  Erroll loved chubby ladies….He was a very generous man. I remember walking to Jilly’s with him in the sixties and I don’t know how many times he stopped to say, ‘Hey, baby’, and reach into his pocket and lay something on whoever it was.’  Bailliett said that recording tends to ‘stymie’ jazz musicians, but Garner loved them – in a 1953 session, Erroll ‘rattled off thirteen numbers, averaging over six minutes each with no rehearsals and no retakes.’  Erroll liked ‘to have his base player sit on his left, so that the bass player could see his left hand.’  Another pianist said that ‘when Erroll walked into a room, a light went on.  He was an imp. He could make poor bass players and poor drummers play like champions.  When he played, he’d sit down and drop his hands on the keyboard and start.  He didn’t care what key he was in or anything.  He was a full orchestra, and I used to call him ‘Ork’.  Another pianist said that what distinguished him ‘was his rich and profound quality of time…He was his magnificent pianistic engine.’  Bailliett ended the piece by recording the reaction of Garner when someone mentioned that he could not read music.  ‘Hell, man, nobody can hear you read.’

*

Mac, my dad, was a judge’s associate.  Norma, my mum, was a court reporter.  I was therefore brought up with stories about law and the courts.  I thought Mac and Norma wanted me to go into the law.  I resisted until my first year of arts at Melbourne University suggested that there was no assured career outside of the law.  I therefore changed to do arts and law.  After about a year or so, it looked to me that the law course was not all that demanding and that could seek to improve my education by reading legal biographies and legal history while coming to grips with the great novelists of France and Russia – while continuing to learn in both history and philosophy.  I think the first biography in the law I read was of Haldane.  It was most instructive.  I have just read a new one, and it is still full of interest for me.  The way to get into a new area is to read about those who made it.

*

I found it unsettling to appear before a judge whom my father was assisting.  It was even harder to appear in a court where my mother was the short-hand writer.  It happened a couple of times in bankruptcy in the old High Court.  In my first five years at the Bar, I had quite a practice in bankruptcy.  Mr Justice Sweeney was a model of courtesy, but he was also a master of controlling his work flow.  I cannot recall any savage contest before him.  And the most technical points could be taken.  One such occasion arose when a creditor understated the debt – understated – by one dollar.  I went armed with all the case law about inconsequential errors.  The debtor turned up expressing the wish to go bankrupt.  I still lost.  As I retreated through a packed court, I wondered whether those faces all turned on me were hiding humour or disdain.  What I do know is that most would of them have thought that this apparent silliness showed that the sooner they got out law courts in general, the better.  Happily, I don’t think that happened on a day when my mother was rostered on to that court.  It was beyond me to know why a transcript was necessary for this court.  I did not ask his Honour why while enjoying morning tea with him in his chambers on another day when the list was completed a comfortable time before lunch.

Here and there – The curious case of George Pell

 

Cardinal George Pell was sentenced to imprisonment for serious crimes against a young man in his charge.

Before that could happen, the Crown (the DPP or prosecution) had to clear three hurdles.  The DPP must have found that there was a ‘reasonable prospect of conviction.’  Then a magistrate had to consider all the evidence and conclude that the available evidence was ‘of sufficient weight to support a conviction of’ an indictable offence.  Thirdly, at the conclusion of the prosecution case, it is open to the accused to submit that a verdict of not guilty should be directed on the ground that ‘there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.’

The Crown satisfied the first two tests and as far as I know the accused did not submit that the case warranted a verdict of not guilty under the third heading above.  There were two further obstacles.  One of the protections afforded the accused is that the verdict of the jury must be unanimous. The first jury could not agree, and the verdict was only obtained on the re-trial.

The Crown case also survived on an appeal to the Court of Appeal by a majority decision.  All three justices reviewed all the evidence given by the accused, and the majority found the complainant to be a ‘compellingly credible witness’ and that the circumstantial evidence did not entail that the jury had been compelled to entertain a doubt about the guilt of the accused.

The accused then sought and obtained special leave to appeal from that decision to the High Court.  That court allowed the appeal and directed a verdict of acquittal. The seven justices unanimously concluded that there was ‘a significant possibility that an innocent person had been convicted because the evidence did not establish guilt to the requisite standard of proof.’

In R v Doney (1990) 171 CLR 207 (par.  11) the High Court said:

There is no doubt that it is a trial judge’s duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict.

In the case of Pell [2020] HCA 12 (par 39), the High Court said:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.., in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

My first reason for finding this case curious is that for a lawyer who does not practice in crime, I have great difficulty in following what if any is the substantive difference between the role of the trial judge in ruling against a submission of no case (as in Doney) and the role of the appellate court appellate court in determining whether the verdict of the jury can be found to be unreasonable.  The question then is this: if the verdict directed by the High Court is as plain as that court found, and only by reference to the evidence of the Crown, why was not the issue raised and dealt with in any of the procedures that led to the verdict in this trial?  It looks like I and others have had to foot the bill for the accommodation of the Cardinal on grounds that look to have been apparent from the start.

The second ground of curiosity relates to reviewing the video of the complainant’s evidence.  The accused argued against that course.  Not surprisingly, the Court of Appeal ruled against him.  But the High Court is at best very wary and a little terse about this practice.  Their Honours did not apparently view the videos.  In the result, a clear majority of those who saw the videos – part of the jury in the first trial, all of the jury in the second, and by a majority of justices on appeal – had no reasonable doubt about the guilt of the accused.  The verdict of acquittal was directed by those who did not see the tapes.

It may be that the High Court would have reached the same result after looking at the tapes, but logic is not an absolute master when it comes to observing due process in the administration of justice.  Among other things, it would be a shame if forensic ingenuity was thought to count for more than witness integrity.  Such a view would buttress a common prejudice of the type that was immediately on show when the High Court gave its judgment.  It was obvious that the views within the nation were split, among other things on sectarian grounds, and it was vital that any judgment should be determinative both in law and on the merits.  The results so far are not good – even if, as may have been predicted, the ignorance of some parts of the press was matched only by its arrogance.

It is a very strong thing for one appellate court to overturn the finding of another appellate court on the evidence as a whole without reviewing that evidence in the same form that the first court did.  In the fullness of time, we may learn how that process differs from a decision to ban a book taken without reading the book.  And some may prefer the simple and humane approach of the majority of the Court of Appeal to the Euclidian sterility of those who reached a different result.  The former is clearly more accessible to the community at large.

This then was not an ideal way to put to rest a fierce contest that is and will long remain in the public domain.  And it is out of tune with the felt need to give victims of sexual abuse a decent hearing.  What is the message that we are sending to victims of sexual abuse by those in power?  ‘Go ahead and complain.  Then give evidence.  And be cross –examined painfully and insultingly for days.  Then watch on as the accused refuses to submit himself to the same ordeal.  Then have your version – that has not been contradicted on oath by the man who attacked you – accepted by a jury and acted on by the court’s sentencing your assailant to prison.  Then have a majority of judges also accept your version on appeal.  And then watch the prisoner walk away because another group of judges takes a different view of the evidence to the first group.  Although they did not take the time to watch you giving your evidence.  When the effect of the evidence is under our law primarily a matter for the jury.  And when your version on oath has been accepted by the jury and the accused has never had to give his version in the same way.’

The so-called ‘best evidence rule’ may be dead as a dodo, but its rationale – common sense and ordinary decency – is not.  And our law knows a long history of preference for direct oral evidence over that which is ‘only circumstantial’.  (I refer to an observation of Holt, CJ in 1701 referred to in Thayer A Preliminary Treatise on Evidence at The Common Law, Little Brown, 1898, 489.)

We are of course here discussing only the criminal standard of proof.  If the Cardinal sued for libel on an allegation of sexual abuse, the onus would be on the defendant, but only the balance of probabilities.  And as a matter of fact, he would have to go into the witness box.

Similarly, if there was an issue about whether this man could be trusted in a position with access to young men in the future, then that issue would not be determined by saying that this man should retain the trust of his employer until a court found him guilty beyond doubt of a relevant offence.  This is not the first time this man has been the subject of a complainant by someone who was found to be an honest witness.  That as I recollect it was the result of a finding of Justice Southwell in a private hearing into complaints of sexual abuse against this priest.

There have therefore been two cases involving the Cardinal where people have found in favour of the honesty of the victim.  Just how an employer might assess the significance of such a history may require some judgment.  And no such issue would properly be resolved by giving the Cardinal the benefit of the doubt.  It is those who may be hurt that have to be looked after.  Putting the interests of the employer over those in possible harm’s way is precisely the cause of so many of our present discontents.

A lot of this is unclear to me.  But two things are clear enough.  First, we would not be having this discussion if the accused had given evidence.  As far as I know, we are yet to hear why he declined to face his accuser from the witness box – a course that it is very difficult to square with his loud assertions of innocence and desire to have his day in court and see justice done.

The second is that Lindy Chamberlain must be asking what star she was born under or what bus she was run over by if Cardinal Pell could get a verdict set aside but she could not.  For we now know that not only was Lindy not guilty – she was also actually innocent.  Only the keenest of the faithful would ever say that of the Cardinal.

Here and there – Supreme Inequality

 

Many years ago – about, say, thirty – I ran into Michael black, QC, later Chief Judge on the Federal Court, walking up William Street, with his red bag, looking a little disconsolate.

Where are you off to, Michael?

Off to the High Court to get bashed up.

Why?

I’m for the Commonwealth.  They want to amend their defence out of time to plead the Statute of Limitations in a case arising from a notorious naval accident.

Commiserations, Michael.  May the Lord make his face shine upon you….

We then discussed the betting at the bar table about who would be the first to say ‘Hard cases make bad law.’  Michael and the Commonwealth did get bashed up – so badly that people are still trying to work out the juristic rationale of the decision.

Well, you hear this kind of chatter every day among barristers.  ‘I’m for a bank against a widow today.  Guess who is going to win?’  But it is just badinage – and if taken seriously, it represents the archetype of prejudice, the prime form of intellectual cancer that can obliterate any notion of a fair trial – in fact or in appearance, or both.

Let me give an example.  About the same number of years ago, I heard a tax case where the Crown was struggling to hold on to an assessment against a widow who, as I recall, was frail.  As counsel commenced to cross-examine her, I recall thinking that this might get ugly – as they say in the NRL.  I can’t remember the detail, but I recall that counsel, who later acquired a reputation for being seriously hard as a magistrate, slowly, softly and politely demonstrated that the lady had a bad case.  He had in short over-run my prejudice against his case.

In criminal cases, we are used to the notion that the accused gets the benefit of the doubt.  Is there a similar process in civil cases?  Well, if there is, it is not one that is often articulated – unless you have someone of the standing and intellectual fire-power of Lord Devlin (in a passage I referred to a little while ago).

Trial by jury is a unique institution, devised deliberately or accidentally – that is, its origin is accidental and its retention is deliberate – to enable justice to go beyond that point [the furthest point to which the law can be stretched ]…The fact that juries pay regard to considerations which the law requires them to ignore is generally accepted…It is, for example, generally accepted that a jury will tend to favour a poor man against a rich man: that must be because at the bottom of the communal sense of justice there is a feeling that rich man can afford to be less indifferent to the misfortunes of others than a poor man can be.

But it is also a fact of life that some judges seem at least to be better for you if you are for the plaintiff in a civil case or against the Crown in a criminal case.  The author of Supreme Inequality, Adam Cohen, would not I think object to being described as one of that persuasion.  He is a liberal of the NYT kind.  The thrust of the book is that while the Warren court was firmly of that persuasion – if you are bent on labels, try ‘liberal’ or ‘progressive’ – the reaction since has been firmly in the other direction – say conservative.

In truth, Mr Cohen says that the U S Supreme Court has bent too far against the poor and civil rights and too far in favour of big money and big corporates.  The picture is not a pretty one.  Mr Cohen has what Helen Garner might call an agenda, but does this mean that he cannot be relied on?  Well, read the book yourself and make up your own mind.  One thing is clear – the book is written in clear terms that avoid jargon – to the point of calling amicus briefs ‘friend-of-the–court’ briefs, and foregoing quoting slabs of judgments (which too many of our judges are guilty of doing).

Mr Cohen is qualified as a lawyer, but he practises as a journalist – to the everlasting betterment of his readers.  The book is to me devoid of the type of padding and ascription that disfigures so much North American scholarship. It is a book that both lawyers and non-lawyers can read and enjoy.  And learn from.

Two things are likely to hit Australian lawyers between the eyes when they read this book.  The first is the ghastly repetition of the call that the court split five to whatever ‘along ideological lines.’  The very idea is anathema to us.  People who should know better might like to play party games about clusters on our High Court, but we will all walk the plank the day we hear that the High Court split along ideological lines, the conservatives appointed by the Coalition against the progressives appointed by the Labor Party.  (There is apparently at least one think tank here who thinks that may have occurred already, but they are away with the birds.)

Secondly, and relatedly, too many of the Supreme Court’s rulings read like arguments rather than judgments.  Too many read as if they have been the product of bargaining – which many of them have.  The present Chief Justice told his confirmation hearing ‘I will remember that it’s my job to call balls and strike, and not to pitch or bat.’  His Honour may have had in mind the analogy of Maitland with the cricket umpire – his job is just to answer the question ‘How’s that?’

Well, to continue the analogy, too many of these judges take to the bowling with a long handle.  And we may fairly fear that this is because too often the writer is coming from his or her own very distinctive position in the dug-out.  It is very hard to imagine some of these judges approaching issues with a clean sheet.  To my mind the worst offender – and I do not resile from the word ‘offensive’ – was the late Justice Scalia.  Because this book is light on chapter and verse, you do not see much of it, but elsewhere I said of the decision in Heller about guns:

Two things may be said immediately of the majority judgment.  First, it is one of those judgments that leaves you wondering how the contrary view may even have been put.  It reads more like the argument of a zealous advocate than the reasoning of a dispassionate judge.  If you did not know better, you might have suspected that its author entered upon the case with his mind made up.  The judgment has the shrill, combative tone of the high school debate.  Secondly, and relatedly, the majority judgment contains terms that are not just uncompromising and intemperate, but downright unmannerly.  The following phrases are alleged against the Justices in the minority: ‘incoherent’, ‘grotesque’, ‘unknown this side of a looking glass’, ‘the Mad Hatter’, ‘wrongheaded’, ‘profoundly mistaken’, ‘flatly misleads’.  In most pubs I know, any one or two of those could get you a bad black eye, and you would not be heard to say that you had not asked for it.  Some asides are just plain bitchy.  ‘Grotesque’ is deployed for effect in a one word sentence.  In English, that word means ‘characterised by distortion or unnatural combinations; fantastically extravagant; bizarre, quaint’ (Shorter Oxford English Dictionary).  This is five Justices describing the reasoning of the other four Justices.

It is a matter of regret and surprise that the Chief Justice did not restrain this unjudicial behaviour; but not only did he not restrain it, he joined in it, with three other members of the court.  I know of no other superior court in the common law world, or in Europe, where this kind of behaviour would be tolerated – either within the court or by those outside it. 

It is hard for judges to be taken seriously when they preach restraint if they are incapable of showing it to each other.  More worryingly, this is the kind of swaggering self-conviction that is likely to be seized on by manic gun lovers……

The Supreme Court could have avoided this decision on handguns.  The ‘right’ was never universal.  It related to the militia which has nothing to do with handguns or personal self-defence.  The English had already taken handguns off the table.  But some policy demon drove the Court backwards.  This failure of the Supreme Court to slay or tame the dragon in the cave was not just a failure of legal scholarship and judicial technique – it was a failure of moral courage and intellectual leadership. 

When you read stuff like that from people who should know better, the breakdowns in other parts of the fabric – say, the Presidency – become less shocking.  Has the ordure of the Wild West permeated One First Street, Washington, D C?

One disaster of the Court was the decision about campaign financing in Citizens United.  The notion that spending money was an act of speech – yes, you guessed it: money talks – started with a ninety minute attack ad on Hillary Clinton – ‘the closest thing we have in America to a European socialist’- and opened the way to an orgy of venality that just reached its apogee in the attempt by Michael Bloomberg to buy the White House – just as the Romans were wont to auction the purple.  In the result, freshmen to Congress are now told to expect to do about four hours a day on financing – a capitol mostly made up of  male tarts.

Bush v Gore still haunts both sides.  Would Trump or McConnell have copped it so sweet?

The five conservative judges who stopped the voting were not only choosing the next president –they were ensuring that the conservative court that Nixon had established in 1972 lived on into the twenty-first century.

If that comment is fair, it bears dwelling on.  A critical component of the electoral success, such as it was, of the current occupant of the White House lay in his promise, which he is keeping, of delivering appointments to the Supreme Court that will be celebrated by the infamous ‘base’.

One of the cases that Mr Cohen says was adverse to the workers was reversed by an act that passed the House 381-38 and the Senate 93-5.

A generation or so ago, the courts lent in favour of mediation and arbitration.  One senior judge said that ‘private judging is an oxymoron, because arbitrators are businessmen.  They are in this for money.’  One survey said that 94% of decisions sided with business.  This is a tool for secrecy and open to the same abuse as non-disclosure agreements.

You get the impression that sometimes the Justices just make it up as they go.  If Miranda gave you the right to have counsel, what good was that if you get someone in forensic nappies on a murder charge?   In Kentucky, one quarter of the prisoners on death row had lawyers who were later disbarred or resigned to avoid disbarments. One observer said ‘A majority on the Court is unwilling to overrule Miranda; however, a majority is also unwilling to take Miranda seriously. The Americans have been much firmer than us on rejecting evidence obtained illegally, but the factional divide opens here.  Justice Brennan, a liberal from way back, said in one case: ‘It now appears that the Court’s victory over the Fourth Amendment is complete.’

The critique of the way that the Court has shown a solicitude for the wealthy to match that of the current President does not make good reading when the court slices up jury verdicts on exemplary damages.  But it just gets awful when you look at the discrimination against people of colour, or the brutality of tactics used by some prosecutors to bully people into plea agreements.

A Kentucky man was indicted for passing an $88.30 forged cheque.  That carried two to ten years.  The prosecutor offered five years, and said that if the accused did not cop that, they would go after him under the Habitual Criminal Act that because of his record would land him in jail for life.  The accused rejected the offer and got life.  The Supreme Court reversed the appeals court and affirmed the life sentence.  That, if I may say so, is grotesque.    And I may add that no one has ever explained to my satisfaction that saying you will get a discount if you plead guilty does not amount to saying that you will have to suffer more if you exercise your rights.

One person who pleaded guilty was in one sense fortunate.  While preparing a 60 Minutes documentary, someone by accident stumbled on evidence that they had the wrong man.  He had only lost sixteen months of his life and ‘several teeth, which were knocked out in one of several jailhouse beatings he endured before he was freed.’

One survey showed that 11 % of 365 people shown to have been wrongly convicted pleaded guilty to crimes they did not commit.’  That looks to me to be about the opposite of the equation that we were brought up on – about letting some ‘guilty’ go, rather than convicting some that were ‘innocent.’

It gets worse.  Mandatory sentencing is in my view based on a sop to the worst of our press, a distrust of our judges – and, in my view, an affront to our shared humanity.  An Army veteran stole children’s videos in two lots, both worth under $100.  But the state law made these misdemeanours into felonies because of a prior offence. In the result, and although he had never been found guilty of an offence involving violence, the accused was given two sentences of twenty-five years to life.  For stealing for his children, this man who had served his country was then thirty-seven and he would not be eligible for parole until he was eighty-seven.   You would not have read about it in Les Misérables. Even Victor Hugo knew where to draw the line.  The Supreme Court upheld the sentence 5 to 4 ‘along ideological lines.’  Can you envisage, even among the assizes sentencing young people to Botany Bay for stealing bread, anything more grotesque than this?

But there is more.

The court had two very different ideas about proportionality of punishment: one for corporations under the Fourteenth Amendment Due Process Clause and another for people under the Eighth Amendment.  The Due Process Clause, it said, did not allow a jury to punish one of the world’s wealthiest of companies with a punitive damages award of $145 million, which was equal to 0.29 per cent of its annual revenue – barely enough to get the attention of the company’s leadership.  The Eighth Amendment did however allow California to put a thirty-seven year old Army veteran and father who engaged in minor shoplifting behind bars until he was at least eighty-seven.

For stealing goods worth less than $200 – by a man who had done what the current President chose to avoid, and who celebrates his refusal to pay taxes because of his bankruptcies in business.    And for good measure, the taxpayers of California will have the Justices of the Supreme Court to thank for a daily bill in excess of that $200 as the cost of that imprisonment – until a combination of sanity and humanity at last steps in.

And sentencing man to fifty years for what used to be called petty larceny.  Did it occur to any of the justices who affirmed this sentence in obedience to what they saw as the law, that one day somewhere and in some hierarchy they may have to answer for their conduct before a tribunal that does not allow the defence of superior orders?  Put differently, did none of their Honours lose any sleep at all over this decision?

One thought kept coming back to me in looking at these plea deals induced by what may be called duress – or undue influence – or unconscionable conduct – by those in a position of power who owe obligations to those in their charge over and above those owed by persons dealing commercially at arms’ length.   If that pressure had been brought to bear by, say,  a professional over a client or patient, or a priest over a penitent, or a teacher over a student, it would have obviously been open to the Court to inquire into the lawfulness of the impugned bargain by reference to that body of law that we know as equity.  We in Australia have been blessed by the fact that many of our best criminal judges were thoroughly trained – I may say indoctrinated – in equity.  I have not seen anything like that in the U S in my time – the word ‘equity’ does not get a mention in a very full index of this book.  If I am right about that, then that is another reason why we here in Australia have indeed been fortunate.

Before looking at two other wrinkles in the perceived stance of the U S Supreme Court, I offer two anecdotes, one personal. First, just as there was a sea change in the 1960’s to judicial review of government action, so there was a change of at least similar magnitude both here and in the  U K to schemes of tax avoidance that might fairly be called artificial.  There was no formal announcement here, but as a simple matter of fact ‘Anything goes’ on one day became ‘You are not going to try that on here, are you?’ on the next.  There was a form of judicial announcement in the U K.  The doctrine was called ‘fiscal nullity’, but it was in truth a cri de coeur from their Lordships: ‘Please don’t act like you think we came down in the last shower.  If very clever people put up what is in truth a house of cards, we will say so.’  While Australian courts said they did not follow the English model, the result was in substance the same.  The days of a judicially blessed Alice in Wonderland were over.

The other anecdote is that when I was admitted to practise in 1970, many if not most magistrates were reluctant to make findings against the police.  ‘If your client did not do it, why would the police have charged him?’  This was a very nasty form of institutionalised prejudice.  But if you came to be acting for a government body proceeding against someone – like an egg board against a poultry farmer who was trying to avoid the marketing scheme – in what was called ‘the quasi list’, the wind swung hard and fast from the other end of the ground.  It was like trying to evict a tenant from premises ‘protected’ since the war.  You were likely to be met with all kinds of technical objections, and overt hostility.   In an egg board case at Casterton, not far from the border, the magistrate refused to award costs to my client – even though the locals thought that s 92 made them untouchable.  It was as if the bench was doing a kind of penance for its laxness in preserving due process in the general criminal law.

The first came back to me when I read of some tax cases in the Supreme Court.  An American Airlines pilot named John Cheek was part of a ‘tax protest’ movement.  He came to believe that wages were not income under tax law.  He said that based on his research, and the teachings of the movement – the phrasing is that of Mr Cohen – he believed he did not have to pay taxes.  A jury found him guilty.  He appealed saying that the violations had to be ‘wilful’ and that the judge had not properly instructed the jury.  The Supreme Court ruled 6 – 2 in his favour.  Unsurprisingly, the minority said that the majority view defied belief.

You will be relieved to know that Mr Cheek went down the second time round.  But the Court had contemplated a defence based on non-belief in the law.  Here, surely, had solipsism made its masterpiece.  Mr Cohen says:

It was particularly notable that the law-and–order conservatives – including Rehnquist, Scalia, O’Connor, and Kennedy – were in the majority, arguing that Cheek’s years of intentional tax avoidance were not necessarily criminal.  The dissenters, Blackmun and Marshall, who wanted to uphold the conviction, were two of the Court’s most liberal members.

An intruder from here, or Mars, might feel compelled to ask – just what part of the American psyche drove six justices to stand behind John Cheek?  The Tea Party?  Paul Revere?  The Alamo, perhaps?

Then there is what some call the ‘white collar paradox’.  The same justices who have tended to vote to uphold the usual kind of criminal convictions tend to make an exception for white collar criminals.  One observer says the Court tends to be ‘anti-defendant….except in white collar cases.’   The same observer said that Justice ‘Scalia voted for defendants in fewer than 7 per cent of non-white collar criminal cases and nearly 82 per cent of white-collar cases.’ One judge – not I think of this Court – made the remarkable admission to researchers that it was hard to avoid being biased when ‘people like you are standing in front of you.’  This is indeed a very touchy area.

The book canvasses many other areas of ideological dispute that may be of more interest to Americans than to us.  I must utter two express caveats.  The first is that I am taking Mr Cohen on trust and I have not gone to the law reports to look at the judgments themselves.  That is a luxury that I immediately learned I could not afford when I was hearing cases.  (It really is dispiriting to see the look of glum betrayal on the face of counsel when you ask them which side won in the case they have just referred to.)  The second is more important. I am yet to hear the case for the other side – at least one that is put by someone who comes from the tradition, if I may put it that way, celebrated by those who have espoused the views that Mr Cohen has criticised.  Perhaps we should hear from jurists who think that the jurisprudence of the Court needed a ‘correction’ after Warren.  All I can say is that the job of presenting what Americans call the rebuttal should not in my view be left to a lightweight.

And whatever else books like this might achieve, this book shows the huge difficulty facing those in Australia who want to change the status of our Bills of Rights so that it is part of the Constitution as it is in the United States.  How many Australians would like to have justices of the High Court make laws for them in the manner of the justices of the Supreme Court of the United States?  Let us put the issue colourably.  How would you like your children to be liable to be offered up for human sacrifice because of an ideology made into law by five unelected law-makers cloistered away in that suburban fastness that they call Canberra?

For that matter, the proponents of a law about ‘freedom of religion’ need to think about the forces that they might unleash.  What we can say with some confidence is that if in 1689 you had told an English MP that one day the colonies might say that the provision in their Bill of Rights about the right to bear arms could have the effect described by the majority of the Supreme Court in Heller, he would not have hesitated to say that you were stark, staring mad.

The issue of equality is vital for at least two reasons.  First, we read almost daily of the rate of depression and suicide increasing among Americans who did not get to go through college.  Mr Cohen says:

The Court’s rulings have helped to produce historic gaps between the most well-off and the least.  Wealth inequality is once again where it stood in 1929, just before the Great Depression began.  The top one per cent of Americans control about 40 per cent of the nation’s wealth.  Much of the rest of the country is only scraping by.  A survey by an employment website in 2017 found that 78 per cent of Americans said they were living paycheck to paycheck.

It is one thing to recall 1929 – it is altogether something else to recall the Vesuvial years of 1789 and 1919.

The second reason that equality is of over-riding importance is that it underwrites our whole jurisprudence.  The incontrovertible base of our logic is that a thing cannot both be and not be at the same time.  The incontrovertible base of our jurisprudence is that like cases should be treated alike.  Try giving a dog a biscuit each time he raises a paw to shake hands and then smacking him for the same action.  (As Justice Holmes remarked, even a dog knows the difference between an accidental kick and a deliberate kick.)  Try giving one daughter for Christmas a ukulele that is twice as big as that given to another.  If some of the best jurists in the world make a mess of equality, what hope is there for the rest of us?

 

 

 

Here and there -The Decline and Fall of Faith and Confidence

 

The Nurse does not know Romeo, but she says to him ‘If you be he, sir, I desire come confidence with you’.  She will confide in him – that is, she will place faith (fides), reliance, and trust in him.  She will trust him to keep what she says to himself, except to the extent that she may permit.  This is the kind of communication that passes between you and your lawyer, priest or doctor, and in varying degrees the law will back you up without your having to expressly stipulate that what you are saying is confidential.

If Romeo accepts the condition of the Nurse, she may have more or less confidence that he will respect her wishes.  She may be confident, to a greater or lesser degree since she does not know this youth at all, that her faith will be respected.  But, by definition, nothing about faith is ever certain.

When, in Othello, worried nobles are speculating on the designs of their Turkish enemy, the Duke says ‘Nay, in all confidence, he’s not for Rhodes’, he could be using the phrase in either of the meanings that we have just seen.  And you do not have to be a philosopher to know that you can hardly warrant any prediction about the future – let alone predict the conduct of any one of us.

The English have led the way in developing our basic model of democratic government.  At times – say, in about 1215, 1535, 1641, and 1689 – they have displayed what might fairly be called genius in shaping their constitution.  As with a lot of geniuses, you think that the answer is obvious once you have seen it – but it took them to unveil it.

At the height of their conflict with King Charles I, the Commons in 1641 passed what they called the Grand Remonstrance.  As slaps in the face go, this one was pretty loud.  Nor was it short.  In clause 197, they expressed the wish that the king should employ only such counsellors (ministers) as ‘the Parliament may have cause to confide in’ without which ‘we cannot give His Majesty such supplies for support of his own estate….’  Shortly after this, and after a stern tongue lashing from his Latin wife, Charles Stuart, as he would come to be called, lost his head, metaphorically, and sought in person to arrest his leading opponents, including the main author of the Remonstrance, in the Parliament itself – leading to a course of events where his stubborn blindness would lead to his physically losing his head at the edge of an axe.

Macaulay was always honest about what side he was on in this long battle that became a war.

In support of this opinion [the felt need of the Commons to tread softly with the King], many plausible arguments have been used.  But to all these arguments, there is one short answer.  The King could not be trusted.

The sentiment expressed in clause 197 is the keystone of responsible government that was settled by the Declaration of Rights in 1689.  It is typical of the English that what started its juristic life as a throwaway line in an instrument of dubious provenance soon became a pillar of ageless, hard law that only an inane anarchist could seek to fiddle with.  If you mention this to an English lawyer or historian, you will get a wry smile and something like: ‘Winners are grinners – the rest make their own arrangements’.

Well, they are no longer grinning – not even the winners.  Across too much of the western world, too many people have lost faith and confidence in their system of government in general, and those holding office from time to time.

Now in my eighth decade, I can sense that this has been going on slowly in Australia through most of that time, but the acceleration across the West since the Great Financial has been too hard to miss.  And the collapse of public decency in the U S and U K in the last few years has been shocking.  Have we then built our house on sand?

Those in government should not feel unfairly singled out.  Very few people have confidence in what Ibsen called the pillars of society.  Churches, trading corporations, charities, trade unions, employer groups, the professions, schools and universities (especially those lumbered with that weasel sobriquet ‘elite’), the press, sporting teams, the professions, the rich – yes, especially the filthy rich – and even the poor bloody poor and refugees are all on the nose with at least some people for one reason or another – with more reason in some cases than in others.

And as we draw further back from God and his Church, we search in vain for any kind of bedrock.  Instead we are left with a revoltingly insipid moral relativity and an even more revoltingly spineless absence of anything like leadership.  The picture is not pretty.

Even the law recognises and seeks to enforce obligations of confidence in some relations – such as partners, husband and wife, directors and shareholders, trustees, and holders of office of public trust – like Ministers of the Crown.

The President of the United States presently stands accused of breaching his office of public trust by seeking to abuse that office to obtain a personal benefit.  The essential evidence is not in dispute.  It is for the most part uncontradicted.  Nor is the allegation of breach of trust fairly answerable on that evidence.  The only question is whether that breach of trust warrants a finding that the President be removed from office.

But it looks like that process will miscarry because those charged with making that decision will commit one of the sins or failures that have brought us to this pass – they will put the interests of party over those of the nation.  And in doing so, they will not see that they are committing a wrong just like that of the man they are protecting.  And too many of them will do that because they are just plain scared of him.  Our brave ancestors who stood up to King Charles I, and who prevailed over him to our lasting benefit, would be worse than disgusted.  As would those in the American colonies who stood up to King George III and his Ministers, and who then fought and defeated his army.

As a result of the doctrine espoused in the Grand Remonstrance, our government must resign if it loses the confidence of parliament.  Can our system survive if so many people have lost confidence in it?  Before looking at what Lord Sumption says about this in his book on the Reith Lectures, we might notice some of the reasons for the fall of faith and confidence in government.

We have sat by for decades watching them let the Westminster system fail through neglect.  Government has been unable to check a shocking inequality in income and wealth that undermines faith in the only ideology in town – capitalism.  There is something inherently unreasonable and unfair going on.  There is a continuing and self-perpetuating decline in the character of people going into government – and people make money by talking with or about the worst of them.

‘Populists’ – a dreadful word – like Trump and Johnson were born to put themselves first, to discard custom and convention, to put party above the nation, and to betray all trust.  They also wallow in that tribalism that demeans all process, and all logic.  Each of them is obviously a charlatan; one is also a thug; both are bullies.  And we have apparently botched the education of a sufficient number of people to allow such people to get away with it.  And the longer they are there, the more that any trust just evaporates.

Trump and Johnson also are champions of the 100% vae victis rule.  (In Kenya, it is called: ‘It’s our turn at the table.’)  This is part of the collapse of moderation and the prevalence of tribalism.  All this is causing parties to forget their function, and is opening up the system to be gamed by minor parties, cranks and crooks.  The result is even more unattractive.

This is happening at a time when the internet is destroying minds, civility, security and privacy.  Its filthy rich drivers are seen as public enemies that our governments are too gutless or inept to control.  Just as they have failed to nail those crooks who fleece us and pay no tax.  Technology is also seen to destroy jobs.  The absurd bonuses of directors may be conditioned on sacking people.  Too few share in the wealth created by sending jobs overseas.  Too few went to jail for crimes committed in the GFC that nearly put the West on its knees.  The cries of envy and for revenge are matched by heightened credibility, and the spread of fake news and conspiracy theories are aided by people in the press who have no sense of decency, much less professional obligation.

The intellectual problem may be simply stated.  Too many people cannot tolerate uncertainty or doubt.  They crave the answer – which is both delusional and dangerous – and a sponsored response that they can hide behind.  This is how Edward Gibbon described the effect of a new faith on old beliefs.

The decline of ancient prejudice exposed a very numerous portion of human kind to the danger of a painful and comfortless situation.  A state of scepticism and suspense may amuse a few inquisitive minds. But the practice of superstition is so congenial to the multitude, that if they are forcibly awakened, they still regret the loss of their pleasing vision.  Their love of the marvellous and supernatural, their curiosity with regard to future events, and their strong propensity to extend their hopes and fears beyond the limits of the visible world, were the principal causes which favored the establishment of Polytheism.  So urgent on the vulgar is the necessity of believing, that the fall of any system of mythology will most probably be succeeded by the introduction of some other mode of superstition. 

You could get into serious trouble for saying any of that now – in part because this is a sin for which truth provides no defence.  But if you doubt it, just look at the crowd at a Trump rally or any advertisement put out by Farage.

Sectarian division has been replaced by generational schism.  Technology has made that worse too.  The young are jealous and frustrated, but we that are left worked hard and paid our taxes and we expect a return.  It’s not our fault that life was simpler and better in our flowering time – nor is it our fault that science means that we will live longer and so probably delay or wipe out any devolution.  Nor do we think that it’s our fault that people commit mayhem on the laws of language and logic.  But the sense of betrayal on climate and housing is palpable and warranted in whole generation that finds itself lost.

And our sense of family is almost travelling as badly as our feeling for religion.

Fifty years ago in this country, all the political nuts and crooks were on the side of labour.  They are all now on the side of capital.  This is in no small part due to our failure to develop a decent conservative press.  Instead, that ground is falsely claimed by unreformed Liberal Party hacks, deranged cadres from right wing think tanks, and regressive relics of a repressive sectarian faith.  And for good measure they forfeit any claim to professionalism by going after the ABC with malice fuelled by the lucre and envy of a vengeful feudal owner.  We have to face it – Murdoch is now doing to Australia what he has been doing to America.

The wilful inanity of soi disant conservatives in Australia about climate change makes it hard to resist the impression that they have been bought – which is certainly the case for at least one think tank.

Nationalism is a poll-booster that appeals to those who are jealous of their citizenship, because they think they have so little else – but it always comes with resentment and scapegoats; it is the seed of bad wars; and both get very ugly when it mixes with religion.

And people who abuse ‘elites’ because they – the members of the elite – think they know better, just fail to see that they – the critics – indulge in the same sin.  And their touchiness about inferiority and insecurity gets hilarious results with ‘experts’ – unless they themselves are on the line, in which case they will prostrate themselves before their superior.

We have rediscovered the simple truth of a democracy based on two parties – the standard of governance is only as good as the opposition.  In the U S, the U K, and Australia, dreadful people have succeeded only because the reluctant electorate could not stomach the alternative.  Each now has a leader that too many neither trust nor respect – and each has succumbed to the view that they are there on merit.

My arrival on this earth came just after the end of a war that we did not look for, but which we had to win.  We had fought bravely, and we as a nation walked tall.  We were entitled to do so.  The nation blossomed in my youth, even though its political process had been sterilised.  The whole world lay before us.

Now, as I slip back toward my ancestors and my dog, I will leave a nation whose government has at least twice led us into wars based on false premises.  As a result, we and the nations that we fought over were worse off.  There can be no more fundamental breach of trust by a government than to lead its people into war on the basis of a falsehood – and the breach is so much worse if the government knew or ought to have known that it was not telling the truth.

We at last worked up the courage and common courtesy to apologise to our first nations for the way we took over their land and for what we did to them.  I have not heard any apology from anyone in government for our bad wars.  Instead, the politician who most owes us an apology refused to join in the apology to the blackfellas.  How do you place any confidence in people who behave like that to you?

They are some of our present discontents.

In Trials of the State, Lord Sumption says:

Fundamentally, we obey the state because we respect the legitimacy of the political order on which it is founded.  Legitimacy is a vital but elusive concept in human affairs.  Legitimacy is less than law but more than opinion.  It is a collective instinct that we owe it to each other to accept the authority of our institutions, even when we do not like what they are doing.  This depends on an unspoken sense that we are [all] in it together…..legitimacy is still the basis of all consent.  For all its power the modern state depends on a large measure of tacit consent…..

The legitimacy of state action in a democracy depends on a general acceptance of its decision-making processes…..Democracies operate on the implicit basis that although the majority has authorised policies which the minority rejects, these differences are transcended by their common acceptance of the legitimacy of its decision-making processes….Majority rule is the basic principle of democracy.  But that only means that a majority is enough to authorise the state’s acts.  It is not enough to make them legitimate….Democracies cannot operate on the basis that a bare majority takes 100% of the political spoils.

The notions of legitimacy and tacit consent are hard to nail down, but our law was founded on custom and our politics depend on conventions.  My own view is that ultimately the rule of law depends on little more than a state of mind.  I wonder now whether the same does not hold for our whole system of government.

We are looking for an implied premise of reasonableness or moderation.  Our law says that the parties to an agreement are obliged to try to help each other get what they have promised.  At the very least, they must not take steps to abort the deal.  So, if I promise to do something if I get a permit, and I change my mind, and try to stop the issue of the permit, the law will deal with me.

Let us look at a political analogy.  The Republicans defied convention by blocking President Obama’s appointment of a Supreme Court justice, which is seen to be a huge political prize in the U S (especially by those puritans who avert their gaze and hold their nose to vote for Trump).  Dietrich Bonhoeffer spoke of putting a spoke in the wheel.  But that was to stop Hitler.  The Republicans now put spokes in the wheel of the United States.  And now Trump is repeating the dose by shutting down the WTO by stopping new appointments.  This is another bad faith breach of convention for short term political gain.

Lord Sumption says that it is not enough for a law to be ‘good’ – the public must in some sense ‘own’ the law.  ‘Law must have the legitimacy which only some process of consent can confer.’  This gets hard when we look at the failure of the public to engage in the process.  This in his view is the problem.  It is the same here.  Few people now wish to join a political party, and not many members of parties are that keen to talk about it – except with insiders.  There is a sense of estrangement – and ‘wholesale rejection.’  Confidence is gone.

I entirely agree that formulating a new constitution or trying to get judges to fix the problem is not the answer.  I also agree that one reason the Americans are so tied up on abortion is that the law is judge made – so that they vote for people as president who will appoint judges to change that law.  It would be hard to conceive of a more twisted perversion of the separation of powers.

As to legislating in a binding constitutional manner for human rights and conventions, look at what a mess we have made of company law by overlaying the broad teaching of equity with vast volumes of black letter law.  And then recall that recently a government that calls itself conservative thought that the answer was to scrap equity for that purpose – and for the relief of their friends in business who had lobbied them so frenziedly (quite possibly with the well-endowed aid of a few former ministers of that party).  And that is the same party that goes into reverse cartwheels at the mere mention of investigating federal corruption.

The author says:

On critical issues, our political culture has lost the capacity to identify common premises, common bonds and common priorities that stand above our differences.

He quotes an American judge who said ‘a society so riven that the spirit of moderation has gone, no court can save.’  All that is as true for us as it is for England and America.  Disraeli – ‘perhaps the only true genius ever to rise to the top of British politics’ – said the problem with England was ‘the decline of its character as a community.’

That sense of community is vital.  Like ‘confidence’, the word ‘commune’ has a very long history – on both sides of the Channel.  In the enforcement clause in Magna Carta, the barons reserved a right to go against a defaulting king ‘with the whole commune’.  The great French historian Marc Bloch said:

….by substituting for the promise of obedience, paid for by protection, they contributed to the social life of Europe, profoundly alien to the feudal spirit properly so called.

The commune exploded in France in 1792 and 1869.  For better or worse, you can see its descendants today in gillets jaunes. 

When an Englishman was arraigned in court to be tried a jury, the jury would be told that the accused ‘has put himself upon his country, which country you are.’  That is a very stirring phrase.  The jury was originally brought over by the Normans as an inquiry made of neighbours – that is, the local community having an interest in the relevant inquiry.  The first medieval reports of cases might refer to the pleadings and then just say: ‘Issue to the country.’

Lord Sumption goes on:

…..experience counts for a great deal in human affairs: more than rationality, more even than beauty.  Ultimately, the habits, traditions and attitudes of human communities are more powerful than law.  Indeed they are the foundation of law.

Oliver Wendell Holmes might have said that.

These notions are large, but we must deal with them.  Lord Sumption fears that we will not recognise the end of democracy when it comes.    I wonder whether we will go down like the way Gibbon saw the Roman Empire go down.

….as soon as time or accident had removed the artificial supports, the stupendous fabric yielded to the pressure of its own weight.  The story of its ruin is simple and obvious; and instead of inquiring why the Roman Empire was destroyed, we should rather be surprised that it had subsisted so long.

You know things are sick when a fat, ugly seventy-three year old man, who happens to be the President of the United States, bullies a sixteen year old Swedish girl on the absurdly named ‘social media’ for giving voice to the sense of betrayal of her generation.

I’m not sorry that I will not be here to see the end of it all.

Postscript

In Chapter 3 of his History of England, Macaulay experienced something like an epiphany on how we see our ups and downs.

It is now the fashion to place the golden age of England in times when noblemen were destitute of comforts the want of which would be intolerable to a modern footman, when farmers and shopkeepers breakfasted on loaves the very sight of which would raise a riot in a modern workhouse, when to have a clean shirt once a week was a privilege reserved for the higher class of gentry, when men died faster in the purest country air than they now die in the most pestilential lanes of our towns, and when men died faster in the lanes of our towns than they now die on the coast of Guiana. We too shall, in our turn, be outstripped, and in our turn be envied. It may well be, in the twentieth century, that the peasant of Dorsetshire may think himself miserably paid with twenty shillings a week; that the carpenter at Greenwich may receive ten shillings a day; that labouring men may be as little used to dine without meat as they now are to eat rye bread; that sanitary police and medical discoveries may have added several more years to the average length of human life; that numerous comforts and luxuries which are now unknown, or confined to a few, may be within the reach of every diligent and thrifty working man. And yet it may then be the mode to assert that the increase of wealth and the progress of science have benefited the few at the expense of the many, and to talk of the reign of Queen Victoria as the time when England was truly merry England, when all classes were bound together by brotherly sympathy, when the rich did not grind the faces of the poor, and when the poor did not envy the splendour of the rich.

Passing Bull 194 – Presumptions outside court?

 

People talk of the presumption of innocence and the legal requirement of proof beyond reasonable doubt in considering the prosecution and conviction of Cardinal Pell.

Most of the commentators are unaware of the presumption of regularity that would say that the jurors are presumed to have discharged their duties in this case in an appropriate manner.  There is a Latin tag to the effect that steps are taken to have been done correctly.  A leading authority (Thayer) refers to ‘the assumption of the existence of the usual qualities of human beings, such as sanity, and their regular and proper conduct, their honesty and conformity to duty.’  Some people may wish to bear this assumption in mind before accusing the Pell jury of being perverse or unreasonable or of not adhering to their oath.  Championing a presumption of innocence may run in both directions.  It’s just that for one reason or another, the jurors don’t usually get to be championed.

To return to the onus of proof, in a criminal case, the Crown (the accuser) bears the burden of proof.  In a civil case, the person complaining (the plaintiff) bears that burden.  If nothing happens in either case, that is the end of it.

The law recognises three standards of proof.  In crime, it is proof beyond reasonable doubt.  In civil cases, it is proof on the balance of probabilities – it is sufficient that the evidence warrants a finding that it is more likely than not that the relevant allegation has been made out.

But the law recognises a standard in between those two.  It is typically applied where a serious crime is alleged in civil cases or where an adverse finding might cost someone their job or their good name.  The criterion for drawing the line has never been adequately explained to me.  The best I have seen is that common sense suggests that you need more persuasion to hang someone for murder than you need to give them a parking ticket.

One formulation is ‘comfortable satisfaction.’  The Court of Arbitration for Sport was comfortable about applying that test in the case of the Essendon footballers – and in upholding every single allegation against them while doing so.  If you think that the worth of a proposition can be tested by looking at its negation, what might ‘uncomfortable satisfaction’ look like?  Spending a fortune on a suite up front in an Arab airline and then finding that you have a burr in your nickers?  In thirty years sitting on tribunals, where counsel sought to invoke this protection I never felt intellectually secure in seeking to apply it.  I just followed my nose.

So, when a private hearing was conducted into an allegation of abuse against Pell by former Supreme Court judge (Southwell, J), the judge, as I am informed, applied this intermediate test.  (The lawyers refer to it as Briginshaw because that was the name of the parties in the leading case in the High Court that arose from an allegation of adultery in a case that reached the High Court.)  The judge found that each side had given credible evidence, but that this was not enough to satisfy the intermediate standard of proof.  That finding was far from being an exoneration of the accused.

Well, that’s fine for the accused.  What about potential victims?  If the Church is going to be responsible for the wrongs of this man, what standard of proof should the Church apply in determining whether this man represents a risk to those who may be in his care or merely exposed to unsupervised contact with him?  When I there ask how the Church ‘should’ proceed, I am speaking of both a moral and legal obligation (or duty).

Let us look at the civil side.  If you are running a trucking company – an analogy once unhappily invoked by the cardinal – and you suspect that one of your drivers may be a risk to the public, and therefore to you and your insurers – say from drugs or alcohol or some physical disability – it would in my view be morally and legally wrong to say that you needed to be persuaded of the risk beyond the balance of probabilities before you took remedial action.  The company would be obliged to take action as soon as it appeared to it that it was more likely than not that this driver was a risk to others.

The case is a fortiori for people in positions of power who can apply undue influence over those not of the age of consent.

It looks to me therefore that the church was legally and morally wrong in not taking adequate remedial action on the Southwell report to protect those in its charge from the risk posed by this priest.  It would be quite wrong to say that the Church could not take any such action until it was satisfied of the risk beyond reasonable doubt or to a level of ‘comfortable satisfaction.’  A rule that was fair to the priest may have been anything but fair to those in his charge – it looks to have been fatal for one of them.

And the reason sounds familiar – the Church put their interests over those of their flock.  Most victims would be appalled to learn that the Church took no action against a priest who had not been exonerated on a most serious allegation.

And, if it matters, that is why so many lawyers in the neutral corner would be so uncomfortable with the rubber stamping on party lines of the appointment of Justice Kavanaugh to the Supreme Court of the United States.  It’s not just that appearances matter; the public conduct of this man showed that he was susceptible to partisan influence – it is beyond doubt that he got the job as a result of such influence – to an extent that rendered him unfit for that office.

But that is not all.  Is it right to have someone appointed to high office when there is a serious allegation against them that is unresolved?  Or that is rammed through on party lines?  Some positions are ‘Caesar’s wife’ territory – the occupant must be beyond suspicion.  Judicial office is one such office and the U S Supreme Court now has two members on it that fail that test.

The onuses and presumptions that we have been discussing are part of the law of evidence.  They are applied by law courts in the trial of issues in an attempt to ensure a fair trial.  The law does not ordinarily require or even suggest that these rules be applied elsewhere (although that part of our law called administrative law will subject some bodies to procedural obligations to protect certain rights).

You could look stupid if you sought to apply the rules of evidence in ordinary conversation – if, for example, you objected to a statement in a political debate on the ground that it was inadmissible as hearsay.  The referees in sporting contests may have an onus in awarding penalties – but how often do you hear the standard of proof being discussed?  Well, one thing is clear enough.  If you want to red card someone for rough play in a world cup final, you will require a lot more assurance than you would for calling a kid off-side in the Under 12’s.

If you told a high school teacher of rowdy teens that the students had the benefit of the presumption of innocence, you would not be believed.  And the same should apply to people in positions of trust or confidence – there any onus might lay on them to show that they have discharged their office – or at least not put it out of their power to do so.  In some instances of ‘undue influence,’ the onus is on the office holder to demonstrate the probity of an impugned transaction.  That does not happen if an issue as to the person’s probity has been left unresolved.

That appears to have been the case with Cardinal Pell.  If so, some unfortunate people have paid an awful price for this lapse of judgment.

Bloopers

Willkie Farr, which put Mr Caplan on leave after he was charged last month, announced that it has now cut ties with him. ‘At Willkie, nothing is more important to us than our integrity and we do not tolerate behaviour that runs contrary to our core values. We remain focused on our responsibilities to our clients, partners and employees,’ the firm said in a statement.

Financial Times, 6 April, 2019

With those fees, they might at least try talking English.  Do they tolerate behaviour contrary to values that don’t go to their core?  Are values like apples?  Are they, too, subject to the laws of gravity?

Here and there – The Cardinal’s Gambit

 

The controversy about the conviction of a priest for child abuse has revealed a lack of understanding of some aspects of our law.

The trial process

For us, a criminal trial is not an inquiry into truth by any means.  Unlike French or German courts, we do not engage in an inquiry after truth.  We inherited the adversarial system.  A trial involves putting some issue to the test.  In a civil action, the question is not what in truth happened, but whether the version of one side is more probable than that of the other.  The person complaining has the onus, and the standard of proof is the balance of probabilities.  In a criminal trial, the issue is not what in truth happened – we leave that to God – but whether the prosecution has proved beyond reasonable doubt that the accused committed the crimes alleged against him.  The great legal historian F W Maitland put it this way.

We are often reminded of the cricket match.  The judges sit in court, not in order that they may discover the truth, but in order that they may answer the question ‘How’s that?’….But even in a criminal case, even when the King is prosecuting, the English judge will, if he can, play the umpire rather than the inquisitor.

In our High Court, Justice Dawson said this about a criminal trial:

A trial does not involve the pursuit of truth by any means.  The adversary system is the means adopted, and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations.  It is not an inquisitorial role in which he seeks to remedy the deficiencies in the case on either side.  When a party’s case is deficient, the ordinary consequence is that it does not succeed.

 

We will revisit the cricket umpire, because the analogy helps on a critical issue in this discussion.

The role of the jury

The jury is for our criminal law what our parliament is to our legislature and executive.  It is the way that we the people get to make the really big decisions that govern our lives and very freedom.  The jury is fundamental not only to our doctrine of the rule of law but to our democracy.  People who are not dewy-eyed say that the jury is a central pillar of our freedom, and the reason why we have not succumbed to revolution or dictatorship.  It follows that anyone seeking to undermine this part of our constitution should be closely watched.

Members of the jury are summoned and sworn to give a verdict on the evidence (veredictum or ‘truly said’).  This process goes back to Magna Carta in 1215.   Magna Carta provides that the Crown (the government) shall ‘not go after or send for’ any free man except by ‘the lawful judgment of his peers or by the law of the land’.  Scholars may argue about whether we are talking of legal process, or brute force, but we all know what it feels like to have government – the Crown – come after us or send for us.  And if the Crown really goes for us and wants to put us in jail, we have this right to take our stand upon our country.  We will not go to jail on the mere say-so of some bureaucrat, or even a judgment of one of Her Majesty’s justices, unless twelve of our neighbours have found that we are guilty of having committed a crime.  In the gorgeous language of old, the Crier would tell the jury that by pleading Not Guilty the prisoner ‘has put himself upon God and the country, which country you are.’

So, if you are chosen to go on a jury in Victorian court, you stand for and represent the people of the State of Victoria just as surely as does its parliament.  That right must be as precious to you as it is to the accused, since one day you might be the accused.  If you are chosen for jury duty, then, lap it up, because in that office, you are as high and mighty as any minister, justice, or prelate in the land.

We need to bear all this firmly in mind when we come to the role of judges in dealing with the verdict of us the people sitting as a jury.

The right to silence

If you are charged with having committed a crime, you do not have to say anything to the police, and you are not obliged to give evidence in court.  If you don’t, you can’t be cross-examined, or make a public fool of yourself.  There is a lot of law on what might be said in court about the exercise of that right – generally very little.  Nor would an appeal court comment on the election of the accused not to give evidence.

What is the jury to make of an accused who chooses to say nothing in court?  You know as much about this as I do.  We are not allowed to quiz jurors about what they do.

Take a hypothetical.  You are on a criminal jury.  A youngish housewife claims that she was indecently assaulted by a surgeon, a big strong man in his forties.  She gives her evidence calmly and persuasively, although she is very distressed at having to go through this.  She is cross-examined and called a liar – for hours that turn into days.  You can’t believe it, and you are looking forward to see how the surgeon goes when it’s his turn.

But he doesn’t front!  He is asking you to reject her testimony, but he won’t let you get you get even near him.  What do you think of that?  How does this sit with your notions of fairness – or fair play, even?  Why should you not accept the sworn evidence of a witness who has been tested and not broken, and which no other witness has contradicted?  He’s a big strong man, better educated than most of us, used to high office and public responsibility – why couldn’t he go in against the little house-wife who makes this complaint against him?  Have the surgeon and his expensive lawyers been just too big for their boots?

What we can say is that if the surgeon had sought to pursue that course before a disciplinary tribunal in his profession, he would have had the door slammed in his face.  With extreme prejudice.

The appeal court

If the last point was tricky, the next is downright murky.

The law says that a court of criminal appeal rehears the case, but it does not rehear the case in a way that you would understand that term.  Crucially, it does not get to see and hear the witnesses as they give their evidence.  It operates on written transcripts.  It has access to video recordings of the evidence, but they are not the same as being in the courtroom when the evidence was given.  In a case that turns on the credit of witnesses – which this case is – that is a real handicap.

Any trial lawyer or judge knows that the whole mood of a case can turn around in a moment with one pause or gesture of a witness – that does not show up on transcript and which may only be partially caught on video replay.  The movie was not entirely silly when it referred to the ‘vibe’.  Trial judges get very annoyed when they get castigated by appellate judges – some of whom have never conducted a jury trial – who say that the trial judge got it wrong when those appeal judges were not there in court at the time to catch the vibe.

A convicted person can appeal if the judge gets the law wrong in directing the jury.  But the law also permits an appeal court to allow an appeal if it concludes that the verdict of a jury is unreasonable or cannot be supported on all the evidence – even though there was, as a matter of law, evidence upon which the accused could have been convicted.

The statute that confers jurisdiction on the Court of Appeal says that court must set aside a verdict if ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’ or if ‘for any other reason there has been a substantial miscarriage of justice’ or if ‘as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice’.

There are reams of law about the powers of the appellate court in dealing with a submission that a verdict is unreasonable or cannot be supported by the evidence.  It is all made by judges and it is about as easy for you – or, for that matter me – to follow as Kant’s refutation of the ontological argument for the existence of God.  But I hope that I have said enough to allow you to see the two problems in this kind of appeal that were referred to by Justice Brennan in the High Court (in a case involving a dingo):

If Ratten [a preceding case] were to be taken as requiring a Court of Criminal Appeal to set aside a conviction whenever the evidence given at the trial leaves that court with a reasonable doubt about the appellant’s guilt, the function of returning the effective verdict would be transferred from the jury to the court – a course which would at once erode public confidence in the administration of criminal justice and impose upon the court the impossible burden of retrying every appeal case on the papers.

The law is clear that the judges cannot overturn a jury verdict just because they don’t agree with it, but how bad the verdict must look before they can overturn it is about as clear as the doctrine of the real presence.

But fundamental to the case of the cardinal is that the appeal judges will not have seen the witness or heard the evidence as it was given on which the whole case turned.   They will have heard the case ‘on the papers’ with access to video replays,  but it will be difficult for appeal judges substitute their judgment for that of the people the law says must give that judgment and who are the only relevant officers of the court who have heard the critical evidence as it was given.

If you think that we are like Medieval Schoolmen asking how many angels are dancing on the point of a needle, it gets worse.  I am given to understand that by agreement between the parties, the jury in the second trial watched a replay of the complainant’s evidence in the first. That will surely lead to an argument that Court of Appeal is in the same position on the critical issue as the jury.  Only God knows what the answer may be.

May I go back to the cricket umpire?  His decisions are now subject to review by video replays and other technical aids.  The third umpire is then in a much better position than the umpire on the ground to review and test a wide range of evidence and to take his time to analyse the original decision.  In a criminal trial that turns on credit, the position is very different.  The appeal court is in a  weaker position than the jury to evaluate the evidence.  (Subject of course to what I have said about the course of this case, and I may add that many people think that TV replays in sport inflame more arguments than they settle – and you may well see a similar reaction here if this appeal were to succeed.)

It follows that in a case like this, a convicted person seeking to persuade an appeal court that the verdict of a jury was unreasonable or unsafe is standing at the foot of a  large mountain.

And that’s before you start to count the various ways that turmoil might reign if judges were seen to overturn this verdict of the people – and release a prisoner convicted of vicious crimes.

The critics of the verdict

You may then see why I and other lawyers do not accept criticism of this verdict from people who have not seen or heard the evidence on which this jury acted – after very long deliberation.

Of course, the Crown carries the burden of proof from the outset, but when the evidence is in, and a case fit to go the jury is made out, the picture shows a different complexion.  You don’t have to look far before you find in works of authority propositions like  ‘Presumptions may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts’ and ‘That presumptions have no place in the presence of the actual facts disclosed to the jury…is held in many cases.’

Some critics expressed surprise that a person could be convicted on uncorroborated evidence.  How many traitors, murderers, rapists, drug dealers or thieves go out of their way to ensure that a third party is present to witness their crime?

The critics appear to come in three platoons.  One is from members of the same faith who look like they are victims of a schism that the rest of us hoped had died away with the Split and the DLP.  Another is from people in high places who have associated with the prisoner and who for reasons that are beyond me are willing to give their public support to another person who was in a high place, but who  is now in jail, having been found by those representing the rest of us to be a vicious criminal.  The third platoon is that part of the media that lives off the earnings of conflict and controversy.  They are just base tarts.  Predictably enough, most come from the Murdoch stable, which is about as rational and honest on this issue as it is on climate change; and worse, that paper fairly throbs with sectarian bias.

You might also notice two things that these critics have in common.  One is that they are all infected by prejudice of one kind or another.  The other is that while the jury acted on evidence, its critics are happy to level accusations at the jury without any evidence at all.

In The Weekend Australian, Mr Gerard Henderson had a piece headed ‘Pell’s ordeal reinforces the case for judge-only trials.’  Fine, a jury convicts a priest, and Mr Henderson says that is enough to reverse 800 years of history and get rid of juries – at least for powerful and well publicised accused persons.  Big hitters should have their own law.

It must follow that Mr Henderson must think that no one in the U S can ever get a fair trial, because over there the press are not subject to the restraints imposed on them here.  There is also the lordly disdain for the intelligence of the ordinary Australians who make up our juries.  Mr Henderson says that ‘the coverage of such an event could only further harm Pell’s reputation, already damaged by years of hostile allegations…’ and he begins his conclusion with these words ‘The media’s intervention in the legal system should be a matter of real concern…..’  And that’s from a man writing in a paper which is leading the charge to get the conviction of this priest overturned.

The prejudice of Mr Henderson shows not just a lack of compassion.  It looks downright cruel.  As far as I can see, there is not one word about the ordeal of the victims.  Rather, Mr Henderson is concerned about the damage to the reputation of the prisoner.  Yes, it is frightful – but Pell has brought almost all that damage upon his own head.  What about the damage to the lives of the victims?  One boy went to find Christ and met rape, heroin, and death.  OK, let’s focus on the reputation of the man found to have been the cause of the ruin and the end of that life.

It’s as if those in the Church have learned nothing.  In the last generation or so, there has been a sea change across the western world in our attitude to crimes committed by people in power against those in their charge.  We now encourage them to come forward and we seek to support and protect them when they have the courage to do so.  We are seeking to prevent people in power ducking for cover under cover of legalism, sophistry, or, heaven help us, a power pack demonstration in place of sworn evidence.

Mr Henderson wants none of it.  He doubtless thinks that Becket was properly made a saint for keeping his priests immune from royal justice.  Indeed, on a bad day, some of the supporters of the prisoner George Pell might remind us of Donald Trump launching into Robert Mueller for conducting a witch hunt.  It could be straight out of Kafka.  The Castle has a line: ‘One of the operating principles of the authorities is that the possibility of error is simply not taken into account.’

I am sorry that this note is so long, but the issues are serious and difficult.  I have tried to stay objective, but I fear that the anger that you will have detected has got the better of me.  The phrase ‘speaking truth to power’ has become a cliché.  But now we have to accept that power speaking to falsehood has become a tawdry fact of life.

If you want to know my view, it is this.  The cardinal played his hand and lost.  Call the next case in the list.  We have spent far too much time on this case already.

Geoffrey Gibson

5 March, 2018.

HERE AND THERE – FAILED JUSTICE

 

An English barrister wrote a book called The Secret Barrister.  It is about the failings of the English justice system.  It is extremely well written by someone who obviously knows his or her way around – and by someone who can see both sides of a question and be dispassionate even where a want of passion may sound criminally cold.  The book is alarming and should be read not just by Australian criminal lawyers but by any Australian having any interest in criminal justice.

I am not sure how much of the book applies to us, but a lot of it looks very like some of the nonsense I had to put up with when I stopped doing crime – by which I mean stuff you could go to jail for, as opposed to the white collar stuff that has largely been quarantined in a no-fly zone – forty years ago.

I shall not review the book, but make two general comments and refer to three specific points.

First, as I follow the author, most of the decline has been caused by government cuts in spending and by a part of the press that is at best ignorant and at worst vicious.  The sad truth looks to be that there are no votes in courts or jails, and therefore our short-sighted governments just cave in to what is banally called ‘populism’ and we the punters get what we deserve.

If this is right – and I think it is – this is just another structural fault in our democracy – one among a growing and worrying number.  If those standing up for victims get a full whiff of any of this, they know that they will hardly have scratched the surface.  On the other hand, they may see why some older lawyers have worried about the venom – and that is what it is – of the backlash.

Secondly, the book is an entire monument to the old and simple truth that you can have all the gorgeous declarations of rights and pious statements about the progress of mankind – they all mean nothing if the system does not work on the shop floor.  Robespierre, Stalin and Hitler were as generous as all get out on promises, and brutal and lethal on their feet.

Magna Cara is routinely violated.  The author says that ‘one bald statistic stands out above all: only 55% per cent of people who have been a victim or a witness in criminal proceedings would be prepared to go through it again.’  Allowing for some fuzziness in the question, this finding suggests that the system is wholly unfit for purpose.  Part of the problem comes from adjournments and understaffed courts jamming lists to force people to settle.  I experienced this in all courts in the 70’s and nothing is better calculated to destroy faith in the system.  Justice is not just delayed – it is denied.  My impression is that the lack of faith may be greater here because I suspect we have a higher rate of successful appeals from conviction.  Whatever may be the cause, an experienced lawyer would caution any member of their family wanting to go to law over sexual assault to think long and very hard before taking a step that might involve them in misery for a very long time and perhaps all for nothing.

Then came the backlash.  Not enough attention had been paid to or protection afforded to the victims.  This was notorious around the world in complaints against churches.  So, the English police changed tack – violently.  One resolution said that it was policy ‘to accept allegations made by the victim in the first place as being truthful’.  Another said: ‘The presumption that the victim should always be believed should be institutionalised.’  This passes belief.  There is a fundamental error in the nature of the place of ‘truth’ in our process, and we have the moral equivalent of an AFL umpire going into a Grand Final between the Eagles and Collingwood wearing black and white.  (And, yes, I can recall a barrister being done for contempt for making just that analogy.)  Some nut hypnotised the English police into believing some conspiracy involving most of the government – when it blew up, the inquiry unearthed the heresy.

The author gives a very helpful comparison of the inquisitorial system.  For all its faults, and they are grievous, he prefers ours.  Why?  At bottom, we don’t trust government to do the right thing in things that count for us personally.

The chapter on sentencing is headed ‘The Big Sentencing Con.’ And con it is.  In the 1980’s I acted for banks who got sued by farmers whose farms were on the line because their bank manager had put them into foreign currency loans (Swiss Francs) that had gone bad and left them broke.  You did not need honours in jurisprudence to know which side was the less likely to lose that sort of case, but I wondered about the juristic basis of the claim.  The late Neil McPhee told me had been involved in a number of high finance cases, and that he was satisfied by the experts that there was no rational basis for predicting fluctuations in the money markets.  He said that he thought the banks were exposed because they were making public statements that could only be premised on the proposition that we could predict fluctuations in money markets.

His insight looks appropriate to our law on sentencing.  The Holy Grail is: What good does it do to lock people up?  What does punishment mean or achieve?  No one has even got close to a coherent answer that I am aware of.  Those in the know speak of ‘warehousing’ – so does the author.  The inarticulate premise is – ‘we will lock the bugger up to keep us safe and shut up the politicians and the press, and then wait for the next serve when they get out – most likely worse than when they went in.’  Warehousing is to the judiciary what kicking the can down the road is to the executive.

Then the appellate courts compound the fallacy.  By saying that four is better than six, or vice versa, they are postulating that some identifiable science underpins the whole process.  That science had not been discovered when I did Criminology in 1965, and I am not aware of its later appearance.  Nor does it help that many of the appellate judges have never set foot in a criminal court, and not one – or scarcely any – has ever met the kind of customer our Queen confronts in her courts.

According to the author, 354 prisoners died in custody in 2016.  119 were suicides.

Prisoners are largely drawn from the most damaged and dysfunctional nooks of society.  The majority have the literary skills of an eleven-year-old.  An estimated 20-30 per cent have learning difficulties….Over half of women prisoners and over a quarter of men report being abused as children.  Mental health problems exhibiting symptoms of psychosis are reported by 26% of female prisoners and 16% of men, compared to 4% of the general population.  Drug and alcohol abuse feature for the majority and 15% are homeless.  And how are these complex factors addressed?

Apparently, by judges’ composing long and boring tracts that no sane person would ever want to read that if anything just make the law more complex, and therefore worse, and that just make life so much harder for the real judges who have to try to apply these laws – and which leave about half of us swearing never to go near a court again.

The author states the issue this way.

Sentencing of offenders amounts to a giant confidence trick on the general public.  The law – decades of on-the-hoof populist legislating – is impossible to understand.  Sentences passed are often entirely out of kilter with public expectations, and the same criminal behaviour can be dealt with entirely differently in alike cases.  Worst of all, there is an inherent dishonesty arising out of a lack of clarity as to what those setting policy want to achieve.

That accords with my understanding here.  The point is serious – the legal word for ‘confidence trick’ is fraud.  That is not the word we expect to find to describe a court of law.  Nor do we expect to see the word dishonesty characterising the heart of our system to punish crime.  What we have seen is the parliament, executive and judiciary complicit for years in creating a huge minefield to perplex trial judges and prosecutors and vex and amaze litigants, victims, and witnesses – and the whole dreadful rubric is built on sand.  (And that’s the polite way to put it.)

Politicians have a lot to answer for.  So does Rupert Murdoch, whose minions spin their tripe for gelt.  (Someone should remind Mr Bolt, and his like, that the slammer is far more expensive than Eton or Geelong Grammar; and it would improve his credibility, among other things, if he spent a weekend or two in one.)  But overall, the problem is down to us as lawyers, and this book throws a steady light on our failings.

There is one light spot.  In a Crown Court in August 2016, her Honour Judge Patricia Lynch, QC, gave the prisoner eighteen months for racist abuse.  The prisoner told her Honour she was ‘a bit of a cunt.’  Her Honour was evidently less sensitive than our County Court judge who was compared to a Collingwood supporter.  She replied: ‘You are a bit of a cunt yourself.’  Atta girl, Ma’am – both barrels and in terms that the bastard can understand.  After that, the conversation went down in tone.  The bad news is that there was a regulatory inquiry.  The good news is that her Honour was cleared – after saying sorry.  The JCIO [the Thought Police] statement said: ‘Although the lord chancellor and the lord chief justice considered HHJ Lynch’s remarks to be inappropriate, they did not find that they amounted to misconduct or warranted any disciplinary sanction. [They] were of the view that the matter should be dealt with by informal advice.’  It’s just another piece in that ghastly Orwellian mosaic; no breach of the law but she gets a backhander just in case – this is known as the James Comey swipe.

As the author reminds us, Dostoevsky said that you can judge the degree of civilisation in a society by the way it treats its prisoners.  We do not even come close.