Tasmanian Times

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“How do those judges sleep at night?”

This is the 28th extract from Our Corrupt Legal System, by Evan Whitton (@EvanWhitton1) available free at netk.net.au/whittonhome.asp

The story so far.

Justice means fairness, and fairness requires a search for the truth, otherwise the wrong side may win. The common law in England and its colonies has perverted justice for 8½ centuries.

The system began as an extortion racket in 1166. Extorting judges and their lawyer-bagmen formed a cartel. Members of the cartel entirely “devoured” a deceased estate originally worth $1.5 billion of our money between 1798 and 1915,

Judges have never been trained as judges; they are lawyers trained in sophistry, a method of lying, one day and judges the next. US lawyer Alan Dershowitz said: ‘… lying, distortion, and other forms of intellectual dishonesty are endemic among judges.’

European courts adopted a truth-seeking (inquisitorial) system after a conference in 1215. A handful of 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 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 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, and China, and for inquiries in common law countries, including Australia.

Common law judges did the opposite. Since 1800, they have invented a number of truth-defeating devices which bias the law and pervert justice in favour of criminals. Justice is also perverted by a bias in favour of plaintiffs in libel and negligence cases.

Judicial sophistry in tax evasion rulings has stolen billions from the Tax Office and pay-as-you-earn taxpayers.

Wilful blindness has been a crime since 1861. In a second submission to the Productivity Commission ( http://netk.net.au/whitton/whitton4.pdf ), I explore a question: are judges and lawyers guilty of wilful blindness about the defects in the system?

24 truth-defeating devices

21. Inscrutable jurors

Professor John Langbein quotes a German legal maxim, Ohne Begrundung kein Urtre, without a statement of reasons, there can be no valid judgment. If so, no common law jury verdict is valid; jurors have never had to give reasons.

The jury system has been open to confusion and corruption since it was invented in 1166, e.g. O.J. Simpson and a man tried for heifer-rustling at Dubbo, Australia, in the 19th century. Barrister Aubrey Gillespie-Jones reported the verdict in The Lawyer Who Laughed (Century Hutchinson, 1978):

Judge’s associate: Do you find the accused guilty or not guilty of cattle-stealing?
Foreman: Not guilty, if he returns the cows.
Judge: You swore you would try the issue between our Sovereign Lady the Queen and the accused and find a true verdict according to the evidence. Go out and reconsider your verdict …
Associate. Have you decided on your verdict?
Foreman: Yes, we have. We find the accused not guilty, and he doesn’t have to return the cows.

Professor Mark Findlay, of Sydney University, did a study of jurors for the Australian Institute of Judicial Administration. In Jury Management in NSW (1994), he reported that he had access to a diary kept by a woman juror during a long trial. She noted:

On the first day, a majority decided that the accused must be guilty because he wore an earring; he looked too glitzy; he was ugly and hence probably bad; and his lawyer looked positively evil. During the trial the majority, led by a handsome banker, ‘only listened to evidence or argument which reinforced their conclusion of guilt’.

The woman was bullied and ostracised, described as a ‘pinko lezzo’, and threatened with being put on a hit list if she went against a guilty verdict.

The verdict was eventually decided by a golf appointment. On the last day, the banker, expecting an early result, arranged to play golf, but ‘when it became clear that [the woman and another juror] were not going to go along with a guilty verdict’, he ‘changed his mind and was followed by the rest’.

22. Reasonable doubt

Along with the right of silence, the formula for the standard of proof, beyond reasonable doubt, is the most effective device for getting criminals off.

Anyone can have a doubt; ‘reasonable’ has as many meanings as there are jurors; in some countries judges are not allowed to tell them that the formula simply means the same as the French formula, conviction intime: are we intimately (thoroughly) convinced?

As might be expected, the negative common law formula did not obtain until after lawyers had taken over the criminal process. Professor John Langbein wrote in The Historical Origins of the Privilege Against Self-Incrimination:

… the precise doctrinal formulation of the beyond-a-reasonable-doubt standard of proof in Anglo-American criminal procedure occurred at the end of the 18th century as part of the elaboration of the adversary system of criminal procedure. [Professor John] Beattie points to formulations of the standard of proof used in jury instructions of the 1780s that were still well short of beyond reasonable doubt.

In 1998, the New Zealand Law Reform Commission published a study of 312 jurors who sat on 48 cases ranging from attempted burglary to murder. The study confirmed that the formula baffles jurors. The Commission reported:

… many jurors, and the jury as a whole, were uncertain what ‘beyond reasonable doubt’ meant. They generally thought in terms of percentages, and debated and disagreed with each other about the percentage required for ‘beyond reasonable doubt’, variously interpreting it as 100 per cent, 95 per cent, 75 per cent, and even 50 per cent. Occasionally this produced profound misunderstandings about the standard of proof.

In the Hannes case mentioned below, the defence was that a Mr X, rather than Hannes, performed a certain action, and that, although Mr X was not produced, the prosecution could not prove beyond reasonable doubt that he did not exist.

It might be thought that the jurors’ common sense would find such a defence laughable, but they deliberated for five days and then asked Judge Cecily Backhouse to explain reasonable doubt. She told them:

The Crown must satisfy you of the guilt of the accused by establishing each of the essential ingredients of the charges to that standard, that is, beyond a reasonable doubt … the accused is entitled to any reasonable doubt in your minds and the accused does not have to prove he is innocent … the accused is presumed to be innocent until the Crown has established that guilt.

In short, reasonable doubt means reasonable doubt or, as Miss Gertrude Stein (1874-1946) put it, a rose is a rose is a rose. One day, a jury foreman will politely say: ‘I’ll put the question again, judge.’ Dr John Forbes wrote in Evidence Law in Queensland (7th edition, Lawbook Co, 2008):

The beginners’ handbook (Bench Book) for Queensland judges – the existence of which is now officially, if somewhat coyly, acknowledged – recommends this circumlocution: ‘A reasonable doubt is such a doubt as you … consider to be reasonable … It is therefore for you, and each of you, to say whether you have a doubt which you consider reasonable. If, at the end of your deliberations, you, as reasonable persons, are in doubt about the guilt of the accused, the charge has not been proved beyond reasonable doubt.

Dr Forbes commented:

Mesmeric repetition of the mantra as insurance against an appeal, or by a defender striving for a doubt, reasonable or unreasonable, may be taken by jurors unaccustomed or averse to responsibility, as invitations to acquit. It is then a short step to the comforting thought: ‘I have just been described as a reasonable person. I think I have a doubt. Therefore it is reasonable.’

Justice Robin Millhouse, of the South Australian Supreme Court, said in 1999:

Very few people who’ve come up in the criminal courts when I’ve been trying them have not been guilty, but a lot of them have got off because jurors’ common sense falters in the face of warnings about reasonable doubt. I’ve often felt my heart sink when I know a bloke’s probably guilty, to have to give all these warnings and I’m afraid the jury will heed them. And they often do.

Justice Christopher Wright, of the Tasmanian Supreme Court, said in 2000: “Too often unsure jurors will shelter behind the standard of proof beyond reasonable doubt, making it the safe option … I am fully convinced that juries return a wrong verdict in about 25% of all cases.”

Angelo Cusumano was murdered during an armed holdup of his Sydney store. Two men pleaded not guilty. A third man, Aaron Robinson, pleaded guilty to murder and told police that one of the others had given him ammunition for the murder weapon.

However, Robinson refused to give evidence against the other two, and his statement about the loaded gun was concealed as hearsay. The prosecution thus could not prove that the other two knew the weapon was loaded. When they were found not guilty in 1998, a juror apologised to the victim’s widow.

Learning of the apology, a radio broadcaster, John Laws, asked the juror on air why she apologised. She said:

To me there was absolutely no doubt. To one other juror there was absolutely no doubt. People confessed on the jury that in their hearts they felt – but that it hadn’t been proven … I said … please let us bring in an undecided verdict, and they said, absolutely not, it hadn’t been proven … And I fought for three days … but I was too weak … My heart goes out to Mrs Cusumano and those children.

It is not a crime in the US to ask a juror what happened. It is in NSW. Laws was charged, convicted, and given a suspended sentence of 15 months.

A Melbourne lawyer kindly added to the sum of my knowledge on what he called ‘the elephant in the room’. In Justinian (15 July 2008), I reported that, in a message to the proprietor, the lawyer noted a case in which ‘the obviously bloody-minded jury’, having been given ‘the required but totally unhelpful non-direction on the standard of proof … responded with a question: “Reasonable doubt – 70 to 80%?”’ The lawyer said the judge and a majority of counsel:

… agreed that the judge would repeat the standard direction (with the jury no doubt wondering what on earth did this idiot have for breakfast or lunch depending on when the redirection was given) but on no account mention the ‘P’ word lest the silly sods get the idea that such a test is permissible in some way.

He added: ‘Mr Whitton might be interested to know, if he doesn’t already, that our trial directions are now publicly available on the web – see them at the Judicial College of Victoria website …’ Thus encouraged, I found that the trial directions (Bench Notes to the Victorian Criminal Charge Book) state:

Although in England the term “beyond reasonable doubt” is seen to be synonymous with the term ‘sure’ (see e.g., R v Hepworth and Fearnley [1955] 2 QB 600; R v Onufrejczyk [1955] 1 QB 388), this is not the case in Australia (Thomas v R [1960] 102 CLR 584; Dawson v R [1961] 106 CLR 1; R v Punj [2002] QCA 333).’

A little more research caused me to exclaim: Eddie freaking McTiernan! I noted in Justinian: “That means that Britain, home of the common law, now allows judges to tell jurors what the elephant means, but the colony has obstinately persisted in error for 48 years.

“The date of Thomas v R, 1960, means the guilty men were on the High Court run by the fraudulent Sir Owen Dixon. The lead judgment purported to have been written by Justice Sir Eddie McTiernan (1892-1990, Labor MP 1929-30, High Court 1930-76). That raised two questions:

“Why would any future judge take the slightest notice of that ancient Labor Party hack and world champion judicial limpet?

“And how many Australian murderers, rapists and organised criminals have escaped justice since 1960, when Eddie shut the door on an explanation of the formula?”

23. Double jeopardy

Perhaps the feeblest excuse for the corrupt system is that common lawyers cannot think straight. Double jeopardy said wrong not guilty verdicts are never wrong.

This shining example of bottomless stupidity persisted in England for 839 years, and was then abolished by Parliament, not judges.

Double jeopardy is the product of the false notion that being tried twice is the same as being punished twice. The error, deliberate or otherwise, derives from 1164. Henry II wanted his courts to re-try ‘criminous clerks’ who had already been found guilty and punished by church courts, but Archbishop Thomas (a) Becket (1118?-70) insisted that persons should not be punished twice for the same offence. Further quarrels between Henry and ‘this turbulent priest’ led to Becket’s murder in Canterbury cathedral.

It seems fair that those found guilty (autrefois convict) and punished should not to be retried for the same offence, but judges purported to also believe that those found not guilty (autrefois acquit) should not be retried.

William Blackstone parroted that ancient confusion in his Commentaries: ‘ … no man is to be brought into jeopardy of his life, more than once, for the same offence’, and he was fatally echoed in the US Constitutions’ Fifth Amendment in 1791: ‘ … nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.’

The other 23 anti-truth devices get more than half the guilty criminals off, but justice thus perverted must stay perverted forever, even when the judge wrongly concealed evidence e.g. Elliot, and when new and compelling evidence emerges, e.g. DNA evidence.

Britain finally and retrospectively abolished double jeopardy for those acquitted of major crimes as from Monday 4 April, 2005. The National Crime Faculty then calculated that 35 persons acquitted of murder could be re-investigated and new charges brought. The Bar Council and civil liberties groups opposed the legislation, but a Home Office spokesman stated the obvious:

It is important that the public should have full confidence in the ability of the criminal justice system to deliver justice. This can be undermined if it is not possible to convict offenders for very serious crimes where there is strong and viable evidence of their guilt.

DNA testing, which became available only in 1986, can deliver justice for innocent prisoners. The New York Times reported on 19 June 2009 that since 1992 DNA testing had exonerated 238 people in the US, some on Death Row.

However, the Fifth Amendment means that the US is constitutionally unable to abolish double jeopardy and to use DNA to retry criminals, including rapists and murderers.

Truth-seeking systems allow not guilty verdicts to be appealed and, if necessary, retried.

24. Judges second-guessing jurors

Justice Sir Gerard Brennan said in M v The Queen (Australian High Court, 1994):

… an assessment of evidence by an appellate court is a poor substitute for the assessment made by the jury. And that is so for a very basic reason: our belief in the validity of the life experience of juries.

Ordinary citizens also have a better sense of justice than judges, but appellate judges can overturn jurors because they think they know better. Dr John Forbes wrote in Evidence Law in Queensland (7th edition):

The [judges’] ‘unsafe and unsatisfactory’ formula, like discretionary exclusion, has returned many a burglar (and other suspects) to their friends and their relations … The ‘unsafe verdict’ is largely a post-1950 creation that enhances the power of judges to override a jury’s verdict of ‘guilty’ … Despite an official reluctance to admit that the appeal court ‘second guesses’ the jury, that is what happens.

In 1973, Deidre Kennedy, aged one year and five months, was abducted from her home in Ipswich, Queensland, clothed in stolen women’s underwear, bitten on the left thigh, raped, and strangled. Her body was thrown on to the roof of a public lavatory.

Raymond John Carroll was tried for the baby’s murder in 1985. The jury heard evidence that he repeatedly bit his own baby daughter on the thigh; that ondontological examination showed the bite marks on the baby’s thigh were his; that he stole women’s underwear; and that his alibi was false.

The jurors found that Carroll committed the murder, but appellate judges Sir Wally Campbell, Sir George Kneipp and Tom Shepherdson knew better. They said Justice (as he then was) Angelo Vasta was wrong to admit ‘prejudicial’ evidence that Carroll bit his own baby, and that the jurors should have had a reasonable doubt that he was guilty. They did not order a re-trial; they said Carroll was not guilty.

In 2000, Carroll was charged with perjury on the ground that he had falsely denied his guilt at the murder trial. New evidence confirmed that the teeth marks on Deidre Kennedy were his, and that he had confessed to the murder.

Carroll was found guilty and sent down for 2 years, but appellate judges Margaret McMurdo, Catherine Holmes and Glen Williams invoked double jeopardy to overturn the verdict: they said Carroll had effectively been tried twice for the same crime.

In December 2002, High Court judges Murray Gleeson CJ and Mary Gaudron, Michael McHugh, Bill Gummow, and Ken Hayne JJ agreed with McMurdo et al. McHugh huffed that the perjury prosecution was a ‘vexatious … abuse of process’.

Twenty-four jurors had thus been second-guessed by 11 appellate judges. Jurist Brett Dawson commented: ‘How do those judges sleep at night? The Carroll case is a model for judicial disintegration of the social fabric.’

It has been reported that Raymond John Carroll has made a point of appearing at the checkout of an Ipswich Woolworths store manned by the mother of the baby bitten, raped and strangled in 1973.

Next: How common lawyers slide round the problem that truth does not matter

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3 Comments

3 Comments

  1. A.K.

    November 26, 2013 at 12:18 pm

    They are also an integral aspect of the legal profession and law society, who write our laws, legislation, act a judge, jury, prosecutions and defence. Many lawyers act in defence and the next day as prosecutor, it’s very common to see prosecutors and defence lawyers socialising with each other during court breaks and lunches. Yet none are ever brought to task for their blatant conflicts of interest, bias and prejudices, which are innumerable.

    Another reason why we need referendum style governance and people controlled courts, using the internet. It would save our society hundreds of millions a year and bring back justice to the people, instead of extremely expensive no justice, under the control of an elitist non representative bunch of empty heads.

  2. john hayward

    November 25, 2013 at 10:30 pm

    Don’t be too hard on the judiciary.

    After all, they are drawn almost exclusively from a trade renowned in legend for its immunity to both conscience and altruism. And they are also appointed by politicians.

    With its offers of both high salary, power, and prestige, the bench is catnip to the last sort of people interested in social justice- conservatives.

    As authoritarians, they are obliged to spend much of their time reminding the public and police prosecutors just who’s boss. Give em a break.,

    John Hayward

  3. hugoagogo

    November 25, 2013 at 1:40 am

    I rarely get past the headline, so to misquote Leunig:

    Pauper: How do you sleep at night?

    Corpulent judge: “on a four poster kingsize bed with 1000 thread Egyptian cotton sheets and with a companion whose beauty would make you weep with desire”

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