Anacharsis, a Scythian prince of the sixth century BC, said:
“Written laws are like spiders’ webs; they will catch, it is true, the weak and the poor, but would be torn in pieces by the rich and powerful.”
All legal systems are organised along those lines. The tricky bit is to get the weak and the poor to tolerate that, especially if they are rather numerous.
The best technique is to create a mountain of reasonable laws on one side, and a mountain of Machiavellian legal procedures on the other, and then use the latter to overwhelm the former, whenever required.
Alternative procedures are created too. In Australia we have two procedural regimes for interrogating prospective defendants.
A: You do not have to say anything, but … anything you do say may be given in evidence.
B: You do have to answer questions, but … anything you do say may not be given in evidence.
On the night of October 13-14, 2004, NSW Supreme Court Justice Jeff Shaw was involved in an accident while driving under the influence of alcohol. He was taken to a hospital, and a sample of his blood was taken by a Dr Hill. The sample was divided into two, by being put into two vials. A quadruplicate form was then partly filled out: top copy white, then blue, yellow and pink.
What was then meant to occur, in due course, was that one vial of the blood (the patient sample) would be given to Shaw, together with the pink copy, while the other vial (the police sample) together with the other three copies of the form would be put into a plastic “biohazard bag” and deposited in a locked box at the hospital belonging to the police.
It seems that the police sample and its three forms were placed in a biohazard bag on a cannulation trolley beside Justice Shaw’s bed, pending being put in the police box.
The bag then disappeared off the trolley. Around that time Shaw disappeared from the hospital too, although he did come back. The bag never got to the police box.
On November 3, 2004 the NSW Police Integrity Commission got involved and started investigating. The police had neither vial. Everyone knew Shaw had one, and it was considered, presumably, unlikely that he would have got rid of it. The whole idea of two vials is that suspects can get their blood sample independently analysed, if they want.
Things got to the stage where Shaw considered it appropriate to supply a vial to the police, and he asked his wife to do this. She did hand in one vial, on November 5, 2004, but also included all four copies of the form.
If Shaw had the police copies of the forms, perhaps he had been in possession of both vials. The second vial was handed over by Mrs Shaw on November 13, 2004.
Quite early on, the judge was charged with driving while four times over the alcohol limit. The DPP dropped that charge when Shaw offered to plead guilty to driving while simply over the limit, which carries lower maximum penalties. Detailed reasons for doing this “deal” have not been disclosed.
The most serious allegations centred around what happened to the police sample. In December 2006 the PIC issued a report. It said that in the commission’s opinion there is sufficient circumstantial evidence to support a view that:
- Shaw removed the bag containing the police sample and its paperwork from the cannulation trolley shortly after Dr Hill had divided the blood into vials;
- Shaw concealed the bag and took it from the hospital to his chambers (seen here on CCTV footage);
- The only reason Mrs Shaw was asked by her husband to come forward with the second vial on November 13, 2004 was that, by handing over all the paperwork associated with both vials on November 5, she had inadvertently signalled that he had at all relevant times been in possession of both of them.
The PIC concluded that, “consideration should be given to the prosecution of Mr Shaw for a specified criminal offence namely, doing an act with intent to pervert the course of justice”.
Now it was back to the NSW DPP, Nicholas Cowdery (pic). Earlier this month he decided not to prosecute Jeff Shaw for that offence.
The PIC’s report is a model of clarity. The DPP’s report is a model of invisibility. The overall effect is remarkable. Everything that points to his guilt has been put into the public arena in meticulous detail, whereas stuff that points to his innocence (presumably) is kept secret.
The NSW Attorney General, John Hatzistergos, has asked to see the DPP’s report. The DPP has refused to hand it over. According to the AG, the DPP claimed it was legally privileged.
Privilege belongs to clients, not lawyers. Who is the client here? I would have thought it was the PIC, which sought the advice. Could the PIC decide to publish the DPP’s report? Would different legal reasons (for secrecy) then be put forward?
One can hazard a fair guess at the DPP’s reasons. The PIC has been legislatively saddled with procedure B (see above). Shaw had to give evidence to the PIC, but then, having produced anything incriminating, it could not be used against him in any court. The PIC legislation says:
“An answer made, or document or other thing produced, by a witness at a hearing before the commission is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings.”
In 2001 the DPP said in a talk to the NSW bar practice course:
“While the office of DPP is publicly accountable, there are circumstances where it is inappropriate to display publicly or to individuals the reasoning process behind certain decisions. This is not because of any desire for secrecy.”
If accountability had just flown in the window, it flew straight out again. In the same speech he said:
“There is no doubt that the [decision to prosecute] process should be as transparent as possible, consistently with principle and with the preservation of the respective rights of all involved. It should be remembered, however, that such decisions are not reviewable by the courts.”
There is no court procedure available to review a DPP’s refusal to prosecute. When no reasons are supplied either, a most dangerous state of affairs is created.
Neither the first plea bargain nor the refusal to prosecute for perverting justice has been explained to the public. One of the most direct routes to a police state or anarchy is lots of crime coupled with lots of refusals to prosecute.
When reasons don’t have to be given, in cases where there is clearly a lot of evidence the other way, there is no accountability at all.