Evan Whitton …

… slept in courtrooms for 27 years. Now he asks, “Why is the justice system so weird?”
BILLY Flynn, the “sleazy Mick lawyer” in Chicago (above), reminded film critic Joel Siegel of an old joke: “It’s only the 99 percent of lawyers who give the rest a bad name.”

In fact, the unfortunate reputation comes largely from the 40 percent who do litigation work: most barristers and about 30 percent of solicitors.

Some occasionally feel ethically obliged to be, let us say, thrifty with the truth because of their “sacred duty” to get the best result for clients. Billy Flynn called it tap-dancing.

The other 60 percent can presumably lead wholly truthful lives in the law. Why they stoically endure opprobrium by association is one of life’s little mysteries.

The Reptiles of the Press, as they are known in England, suffer from a perception of thrift similar to that enjoyed by the herpetoids of the law, present company of course excepted.

Most journalists also risk charges of thrift by omission; they seem as incurious as legal academics about how and why the criminal process works the way it does.

On Fox News — surely Rupert’s parodic masterpiece — and CNN, for instance, “expert” reporters and lawyers interminably masticate bits of evidence from the latest celebrity trial, but give viewers no hint that the process itself is a problem.

Oddly, the public are far in front of the media. The [Sydney] Daily Telegraph reported in July 2004 that 92 percent of 7,000 readers believe the judicial system is unfair, and that 78 percent believe it favours criminals.

But I cannot point the finger at fellow reptiles. I first covered trials in 1964 in the wilds of Toowoomba, where a fabled magistrate, Dan Kearney, daily trumpeted: “I am going to rid this town of hoons.” We can still drink to that, not least in terms of the current British War Minister.

(Sir) Terence Lewis

I thereafter slept in those windowless courtrooms — like the ineffable Roderick P. Meagher and Lord King in the shamelessly corrupt Chancery Court — for 27 years before it occurred to me to ask why an alleged justice system is so weird, and then only because of a rare opportunity to observe at first hand how two legal systems dealt with the same organised criminal, Sir (as he then was) Terence Lewis, the Queensland police el jefe.

In 1988, the Hon. Gerald Fitzgerald QC used the truth-seeking investigative system to reveal beyond question that Terry had achieved level five, the highest, on the McCoy corruption scale: he franchised organised crime and extorted bribes from the franchisees, e.g. Sydney yachtsman Jack Rooklyn.

But at Terry’s trial in 1991 Judge Tony Healy felt obliged to conceal so much damning evidence that he had to tell the jury there was no reliable evidence [left], and that it would be dangerous to find him guilty.

Excuse me?

I eventually learned that supine English judges allowed the tap-dancers to take control of the criminal process early in the 19th century, and that since the herpetoid takeover at least 21 (and counting) great new anti-truth devices have been invented.

So much for the “how”; the public also want to know “why”; a NSW judge, John Dunford, recently said, “the community expects … the courts to ascertain the truth”.

They certainly do, judge, and if High Court judges feel powerless to abolish the devices, the immaculate 60 percent may care to add to their virtue by urging a distinguished former colleague to do it; after all, our dashing Prime Minister is implacably committed to the truth.

First published in Justinian, August 11, 2004