This is the 26tth extract from Evan Whitton’s Our Corrupt Legal System, available free at netk.net.au/whittonhome.asp
The story so far
English common law began as an extortion racket in 1166, and has perverted justice ever since. Extorting judges and their lawyer-bagmen formed a cartel to increase profits.
Judges have never been trained as judges; they are lawyers trained in sophistry, a method of lying, one day and judges the next. A US lawyer, Alan Dershowitz, said: ‘… lying, distortion, and other forms of intellectual dishonesty are endemic among judges.’
European courts adopted a truth-seeking after a conference in 1215. English judges formally rejected the system in 1219.
European judges perverted justice for five centuries; they believed, like George W. Bush and Barack Obama, that torture is a reliable way of finding the truth.
In common law countries, lawyer-politicians in have been able to block change since they became the “dominant interest” in Parliament about 1350. Vote 1: Anyone but a lawyer.
The adversary system is a different kind of racket. Lawyers versed in sophistry gather and present evidence, question witnesses, and can spin the process out. The civil version dates from 1460; the criminal version from 1695.
Legal academics joined the cartel after a serial liar, Billy Blackstone, began the first law school at Oxford in 1758.
Napoleon began to reform the truth-seeking system in 1800. Versions of his system are used in Europe, South America, Japan, South Korea, China.
In the past two centuries, common law judges have created a number of truth-defeating devices which bias the law in favour of criminals and plaintiffs in civil cases such as libel and negligence. The bias necessarily tends to pervert justice.
Tax evasion rulings by judicial criminals such as Sir Garfield Barwick have stolen billions from the Tax Office and pay-as-you-earn taxpayers.
24 truth-defeating devices
*19. Concealing any or all evidence (Christie)
The Christie discretion is a piece of metaphysical claptrap expounded by British judges in R v Christie (Court of Appeal, 1914). They included Lord Reading, who escaped justice for insider trading in the Marconi scandal of 1913.
Dr John Forbes said in Evidence in Queensland (The Law Book Company, 1992) that the ‘Christie discretion may contain ‘a large subjective element’ [R v Sang, 1980]; that its operation may sometimes be ‘whimsical or idiosyncratic’ [Selvey v DPP, 1970]; and that: ‘If there ever was such a thing as judicial corruption, it might well reside in the expanding and almost inscrutable discretions which can alter the whole course of a criminal inquiry.’
Professor Julius Stone and former Justice W.A.N. Wells said in Evidence: Its History and Policies that evidence concealed by the Christie discretion ‘must be of comparatively little probative weight, [and] this slight relevance must be accompanied by a great potentiality for prejudice’.
Judges should thus first decide that the evidence points only slightly towards guilt, and only then consider whether it is highly prejudicial. In practice, however, they may first note that the evidence is likely to cause a guilty verdict, and then decide it is only slightly probative.
David Rose (In the Name of the Law: The Collapse of Criminal Justice, Jonathan Cape 1996) quotes a detective: ‘ … as far as I can see, prejudicial means evidence that proves he did it.’
Even if the judge is plainly wrong when he says evidence is only slightly probative, he cannot be reversed because his opinion concerns facts and appeal courts deal only with law.
That means judges can never be wrong on facts, but Judge Brian Boulton, of the Queensland District Court, revealed in 1992 that the head of his court, Judge John Helman, had admitted that there might be ‘chaos’ if different judges applied the discretion to the same evidence.
It was evidence concealed via the Christie discretion that first prompted me to look into the West’s two systems. In 1987-88, I reported an 18-month inquiry into the truth of corruption in Queensland for The Sydney Morning Herald and The (Brisbane) Sun.
The inquiry, chaired by the Hon Gerald Fitzgerald QC, used the investigative system: evidence was not concealed; suspects had to give evidence. That system revealed beyond the slightest doubt that the Police Commissioner, Sir Terence Lewis (b. 1929), was a major organised criminal: he franchised organised crime and extorted bribes from franchisees, including Sydney yachtsman Jack Rooklyn. Lewis obviously lied in giving evidence.
Lewis was tried for corruption in the District Court under the adversary system in 1991. Judge Anthony Healy presided. The Crown prudently retained the leader of the criminal bar, Bob Mulholland QC, to prosecute. John Jerrard appeared for Lewis.
Jerrard may have achieved what defence lawyers fear above all; asking one question too many. He asked it of Jack Herbert (1924-2004), Lewis’s bagman.
Herbert was born in London; served in the RAF; joined the Metropolitan Police (Scotland Yard) in 1946; and migrated to Australia in 1947. He was a uniformed cop until he got into plain clothes in the Queensland Licensing Branch in 1959, and was there corrupted. With the mind of a bookkeeper, Herbert became the bagman for the Branch’s extortions from illegal liquor sellers (sly-groggers) and bookmakers.
Lewis had been a bagman for a corrupt Commissioner (1957-69), Frank Bischof (1904-79). In 1965, Herbert began to pay Lewis a small share of Licensing Branch bribes. When Herbert apologised for the paltry sums, Lewis graciously said: ‘Little fish are sweet.’
In 1976, the Premier, Sir Johannes Bjelke-Petersen (1911-2005), also an organised criminal, made Lewis his police chief. In 1980, Herbert, now out of the force, became Lewis’s bagman. They used codes to discuss extortees, and meeting places to share the proceeds. Lewis kept the codes in notebooks.
When the Fitzgerald inquiry began in 1987, Herbert, advised by Jack Rooklyn, fled to England, but was sprung by the Met and brought back to Australia in an Air Force plane on a promise of immunity if he told the truth about corruption.
Herbert was the leading witness against Lewis at his corruption trial under the adversary system in 1991. Lewis refused to give evidence. Judge Healy concealed a deal of evidence via the Christie discretion.
He said: ‘ … some of the evidence identified by Mr Mulholland as corroborative [of Herbert’s evidence] appears to me to be of little probative value but of the kind that would be highly prejudicial to the accused if I admit it.’ Some evidence thus concealed:
• Lewis’s diary entries, which Mulholland said he could prove were concoctions, purporting to show he was a successful punter in a period, 1979-1987, when it was alleged he was corrupt.
• His false sworn denial in 1980 that he had ever had anything to do with the organised criminal, Jack Rooklyn.
• His transfer to Lady Lewis of his interest in their mansion when he learned that Assistant Commissioner Graeme Parker had ‘rolled over’ and was confessing to corruption.
• His false sworn claim that he made the transfer to protect the mansion from creditors at a time when he had no credit problems.
• A tape of telephone calls between Herbert and a Barry MacNamara in which they fret that Lewis stiffed them and an accountant, John Garde, of their share of a $25,000 bribe Herbert arranged for Rooklyn to pay to Lewis.
Of the $25,000, Lewis was to get $15,000. The other three were to split $10,000, but Lewis gave Herbert only $9000.
MacNamara says on the tape: ‘Oh, I think it is a sh*tty trick, you know, I really do … And to think, for a f*ckin’ sh*tty thousand dollars … I think it’s a very bad act.’
Later, MacNamara says Garde ‘took it badly … he’s going to give that bloke [Lewis] a grand light this month’.
Herbert cautioned: ‘Terry loves this stuff … he might be a bit upset if I did it back to him’.
Judge Healy told Jerrard:
I have come to the conclusion that this tape is not capable of corroborating Herbert … I do not think it is part of the res gestae [the material facts of a case as opposed to hearsay]. Therefore I exclude it. But if I am wrong about that, the conversation tends to suggest, and this is Herbert’s evidence, that your client is a person who is capable of ratting on his friends. That’s not part of the indictment either. It would be very prejudicial to him to let it in, so I am excluding it.
That Christie ruling meant that the judge took the view that the tape only slightly tended to prove Lewis’s guilt.
The jurors heard only a fraction of the material uncovered by Fitzgerald. It is understood that they initially believed that Herbert had vilely traduced an honest cop in order to grain immunity, but that the following passage concerning the ‘little fish’ bribes caused them to look at Sir Terence with new eyes:
Jerrard: What did he promise to do?
Herbert: It’s not what he promised. It’s what I had in my mind – and other members of the Licensing Branch – what he could do.
What was that? – He was very, very friendly with Mr Bischof. It was well known in circles that Mr Bischof was a grafter, the same as myself, and back in those days – whilst I’m called the bagman now – the accused was well known in police circles as the Commissioner’s bagman.
That’s a very easy allegation, that one, isn’t it? – You asked me. I’ve told you. I didn’t want to mention it, but if I didn’t mention it to you, I’m not telling the truth, of which I’m sworn to ….
If you are raised in Queensland, it was practically taught in schools, this allegation? – Yes, it was widely known,
Healy let the Lewis-Herbert codes in. Mulholland told the jury they were the smoking gun, but Healy said Herbert’s evidence was worthless, and that ‘there is no evidence which is capable of corroborating [it]’.
The appeal court later said Healy was wrong, that the codes did corroborate Herbert, but there would have been no appeal if the jury had found Lewis not guilty. Healy concluded: ‘You may convict on the uncorroborated evidence of [Herbert], but it would be dangerous to do so.’
Had the jurors heard all the evidence exposed by the investigative system, I imagine they would have found Lewis guilty without leaving the box. They did find him guilty, but it took five days. Healy promptly gave him the max, 14 years.
I took the view that, however inconvenient, it was a good result for Sir Terence: anyone can get a knighthood, but Her Majesty soon admitted him to an exclusive club; he was only the 14th knight to be stripped of his knighthood since the 14th century.
In 1995, the Australian and NSW Evidence Act(s) narrowed the probative-prejudicial gap to almost zero. Section 137 of the NSW version states:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
The effect was shown after Rhonda Buckley, 51, a grandmother, was strangled in Newcastle, NSW, on Tuesday, September 25, 2001. Next day, her lover, Lyle Simpson, 47, attempted to kill himself. DNA tests showed that Simpson’s semen was on her body.
At Simpson’s murder trial in March 2005, his legal aid lawyer, Joanne Harris, persuaded Justice Anthony Whealy to conceal his suicide attempt because it might cause him ‘unfair prejudice’. DPP Nicholas Cowdery QC decided not to proceed. Simpson walked.
