… in relation to sex abuse of children. Recommendation: Submitter: Evan Whitton … I read History at Queensland University and became a reporter/legal historian. So far as I know, no one else has traced the history and practice of two almost totally different justice systems, the adversary system used in England and its former colonies, and the inquisitorial system used in France and elsewhere. The text of my book on the systems, Our Corrupt Legal System, can be found at netk.net.au/whittonhome.asp, a section of a website run by legal academic Dr Robert Moles. The Preface is a 1600-word summary. China Fangzheng Press has contracted to translate and republish the book in mainland China. Sources not given below are in the book. Notes. Sent Tuesday 29 March 2016. Much of the following also applies to cases involving rape of girls and women.
Composition of the Commission.
Criminal justice defined.
The adversary system.
The French inquisitorial system.
Seven ways the adversary system protects child sex abusers: legal ethics, committal hearings, cross-examination, “right” of silence, concealing patterns of abuse, judges can conceal any evidence, jury formula.
Incidental note on George Pell.
Composition of the Commission
Sir Ludovic Kennedy said justice is too important to be left to judges; the French believe the commonsense of ordinary people helps judges to avoid error: jurors sit with judges on French courts, including appeal courts, and can outvote them. That balance is reflected in the Commission’s composition. If members do not agree, Ms Milroy and Messrs Atkinson and Murray can outvote Justices McClellan and Coate.
Criminal justice defined
Former Justice Russell Fox researched procedures in the two systems for 11 years after he retired from the Australian Federal Court. He concluded that justice means fairness, and fairness and morality require a search for the truth, otherwise the wrong side may win, and that the public knows that “justice marches with the truth”.
The adversary system
• As the name implies, the adversary system is a contest/game; the object is to win, not to find the truth.
• Significant evidence is concealed.
• Trial lawyers control the process and can use sophistry – a technique of lying via false arguments, shifting the goalposts, asking the same question in decreasing circles until the witness has to say yes when she wants to say no etc. – to confuse witnesses and judges.
• Paid by the day, lawyers have an incentive to prolong the process; trials can take weeks or months. (Yale law professor Fred Rodell said the system is a racket. If that were the case, taxpayers who fund the system might expect trial lawyers to give them a fair share of the proceeds.)
• Untrained judges are largely passive, but do try to stay awake.
• Jurors are isolated; do not understand beyond reasonable doubt; and do not give reasons for their verdicts.
• The conviction rate for the few rapists who actually stand trial is 25%. It is unlikely to be higher for the few child sexual abusers who get to trial. Meanwhile, at least 1% (5% in the US) of people in prison are innocent.
The French inquisitorial system
• The system seeks the truth; evidence is not concealed.
• Trained judges control the process.
• Judges use a series of filters to ensure that the innocent are rarely charged, let alone convicted.
• On a fixed wage, judges have no incentive to prolong the process; most hearings (trials) take a day or so.
• Judges do not let lawyers pollute the truth with sophistry.
• Jurors sit with judges and can outvote them.
• Their formula for conviction is: Are we intimately (thoroughly) convinced?
• Judges and jurors give reasons for verdicts.
• About 95% of guilty defendants are convicted.
I suspect most lawyers and judges don’t know when the adversary system began, or much about the French system. Nor would taxpayers. A brief chronology may help. Both systems are the products of accidents of history.
43 AD+. As part of Roman Empire, England uses an inquisitorial system.
476+. After the collapse of the Empire, West Europe and England change to a non-truth accusatorial (prove it) system, trial by ordeal, verdict by unknown god.
c. 1090. Accident of history. William II puts every English public office on sale; investors extort bribes from people who deal with the offices. The system of trickle-down extortion continues for more than two centuries.
1166. English (accusatorial) common law begins. Extorting judges and their lawyer-bagmen form a cartel. Judges on fixed wage (plus graft) lack incentive to prolong process; most procedures take a few hours.
1215+. Accident of history involving Pope Innocent III results in European courts reverting to inquisitorial system, but for the next five centuries judges wrongly believe that torture is a reliable way of finding the truth.
1219. English judges reject the truth-seeking system; persist with accusatorial system. Excuse: Wogs begin at Calais.
c. 1350. Lawyers become “dominant interest” in Parliament. They still are, e.g. 0.2% of the population; 60% of US Senate. It seems a tacit cross-party “Lawyer Party” has existed for some 666 years to keep truth out of the system. It follows that if at least three Commissioners are of a mind to recommend a special inquisitorial court for child sex-abusers, you will have to do so in terms which Parliament cannot ignore. If the public want justice to march with truth, they will eventually have to Vote 1: Anyone but a lawyer.
1460. Cartel. Control of civil law begins to pass from judges to lawyers with incentive to prolong process, thus starting adversary system.
c. 1560. First mention of new trial by ordeal: cross-examination.
c. 1650. Cartel. The Chancellor, a politician-judge (probably Bulstrode Whitelocke), says lawyers’ fees in will cases are to be paid by deceased estates, not by clients; Chancellors then prolong will cases for decades.
c. 1654. Bulstrode Whitelocke defeats bill to exclude lawyers from Parliament.
1695. Criminal adversary system nominally begins.
1795. Cartel. Criminal lawyers in 36.6% of trials; for next two centuries judges conceal evidence to help them get work.
1798. Will case Jennnens v Jennens (model for Jarndyce v Jarndyce) begins. Estate worth c. $1.5 billion million today; 32 criminal Chancellors keep it going until remnant finally “devoured” in 1915.
1800. Accident of history. Fluke of timing at Battle of Chicken Marengo gives Napoleon time to begin work on what he came to see as his monument: reform and codification of the inquisitorial system.
1805. If Admiral Villeneuve had followed Napoleon’s instructions, Australia would probably have an inquisitorial system.
7 ways the adversary system protects child sex abusers
Legal ethics. Ethics devised by lawyers require them to get the best result for clients; if guilty, the best result is to get them off, by lying if necessary.
US law professor Monroe Freedman wrote: “… there are circumstances in which a lawyer can ethically make a false statement of fact to a tribunal … and can ethically engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” The American Bar Association gave Freedman its highest award for his work on ethics.
Committal hearings. There are no jurors. De Caaroline Taylor. author of Court-Licensed Abuse, said: “A standard tactic … is to attack complainants with such ferocity at a committal hearing that they are too afraid to go to trial.”
Cross-examination. US law professor James Elkins said the adversary system has a philosophy of cruelty. Trial lawyers claim they are ethically obliged to cross-examine child victims brutally.
Four Corners ran a segment, Double Jeopardy, about sex crimes against children on19 July 1999. Reporter Peter George quoted judges, lawyers and police who said they would not allow their children to go through the ordeal of cross-examination.
The programme re-enacted the committal hearing of a case in which a Queensland mother said her best friend’s husband anally penetrated her son, aged seven. Barrister Russell Clutterbuck cross-examined him for five hours, with breaks to stem the sobbing. After questioning the child about oral sex, Clutterbuck went on:
You didn’t tell the other policewoman the first time, did you? – No.
No. That’s because it didn’t happen, isn’t it, John? – It did happen …
Well why are you crying if the story is true, John? – Cos you said it isn’t. …
John, you know what telling lies means, don’t you? And that’s what you’re doing today, isn’t it? – I’m not telling lies …
See, I can stand here all afternoon and ask you all sorts of questions and until you tell me the truth I won’t stop …
The trial verdict was not guilty.
The full horror is at: www.abc.net.au/4corners/stories/s39718.htm
Note. Rape victims have vomited on the witness box when lawyers have cross-examined them about their sex life to suggest to jurors that they consented.
Abusers can avoid answering questions. The rule against self-incrimination is the product of a lie by the first legal academic, William Blackstone, (1723-80); he falsely asserted it was the law of England. The “right” of silence is said to get off about half of those who hide behind it, some 25% of the total. Millions have thus escaped justice because judges perpetuate Blackstone’s lie.
Crime patterns concealed. A rule which conceals evidence of a suspect’s previous crimes derives from an 1894 remark by Farrer Herschell, one of the Chancellors who kept Jennens v Jennens going for 117 years. The rule against “similar facts” gives jurors the false impression the suspect is a first offender; it is then his word against the victim’s, and the jury formula (see below) favours suspects. The rule has thus enabled millions of repeat offenders, including child sex abusers, to escape justice.
Judges can conceal any evidence. In 1914, a court headed by Lord Reading, an inside trader in Marconi shares, devised an arcane rule which helps corrupt judges and confuses honest judges: a discretion to conceal evidence if the judge thinks it only slightly points to guilt but is highly likely to “prejudice” jurors against the accused. An English detective said: “ … as far as I can see, prejudicial means evidence that proves he did it.” OCLS has startling examples.
Beyond reasonable doubt. The formula is negative. Jurors do not understand it, and Australian judges are not allowed to tell them it means: Are you sure? The formula for French judges and jurors is positive: Are we intimately (thoroughly) convinced? A Tasmanian judge, Christopher Wright, said he was “fully convinced” that beyond reasonable doubt” produced “a wrong verdict in about 25% of cases.
Incidental note on Cardinal George Pell
A line of rulings from Regina v Sleep (1861) indicate that wilful blindness to crime is a crime. Margaret Heffernan, author of Wilful Blindness, wrote: “If there is knowledge that you could have had and should have had but chose not to have, you are still responsible.”
That suggests it is open to Commissioners to find that Pell was wilfully blind to crimes of sexual abuse against children. Pell is outside the jurisdiction, and may judge it prudent to remain so.