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Evan Whitton
23 June, 2008  
The absurdity system

Sinking the slipper … The circularity of “reasonable doubt” ... And three procedural reforms guaranteed to improve public approbation for the law


The Oz’s Mr Tony Koch reported on May 17 that the Queensland DPP’s budget is less than a third of the legal aid supplied by state and federal sources.

That is, the DPP gets about $30 million a year to try to put at least a few criminals in prison, but defence lawyers get $101.3 million a year to keep them out.

Is that an official admission that the absurdity, i.e. adversary, system is a get-the-criminals-off game?

The second law of journalism?

imageIt was reported on June 12 that Mrs Belinda Bosca, (LLB Syd), 45, MP (pic), fullback for Umina Eagles ladies’ soccer team, was rubbed out for two matches for kicking a recumbent opponent, Ms Amy Parslow.

That inevitably reminded me that Billy Williams, Rat of Tobruk and my nominal editor at The Whore of La Trobe Street, (K.R. Murodch Esq. Prop.), wrote a piece giving it to some poor sod.

“Jesus, Bill,” I said, “why did you do that?”

“Never kick a man until he is down,” he replied, at once oracular and with a twinkle, “the slipper has less distance to travel.”

A rose is a rose is a rose

To Rubyos, in ultra-weird King Street, Newtown, Sydney, to let some literary lunchers (Peking duck with rice flour pancakes, pepper blackened prawns on raisin and pinenut tabouli, braised New Zealand white rabbit tarts, etcetera, etcetera) in on a little secret: what judges and lawyers don’t know.

An eminent retired beak snorted in disbelief when I mentioned that judges are not allowed to tell jurors what beyond reasonable doubt means. He is probably not alone. So here is Dr John Forbes 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’.”

imageIn short, reasonable doubt means reasonable doubt. Miss Gertrude Stein (1874-1946, pic) would be pleased, but one of these days a jury foreman is going to jump up and shout: “I’ll put the question again, judge!”

Dr Forbes comments:

“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’.”

If a trial judge dared tell jurors the truth, i.e. that reasonable doubt equates to the French formula, are you thoroughly convinced? he would probably be overturned on appeal, and trial lawyers would incidentally enjoy the cash flow of another trial.

How to reduce public contempt

A litany of bizarre events, including retrials because of a kipping judge and jurors playing Sudoku, can only hold up the absurdity system to more hatred, ridicule and contempt.
Having, as we all must, a tender care for the good opinion of the law, this column can offer three minor procedural reforms guaranteed to improve public approbation.

A tiny point of resistance may be that all three derive from the feared French system.

First, jurors will sit on the bench with the judge. They can keep each other awake and work out the verdict together.

Second, the judge will produce only enough evidence to “manifest the truth”. This will reduce ennui and cost. For example, the ever-intriguing case of Simon Gautier Hannes, and how the despised froggy ones would have dealt with it.

imageMr Hannes (pic) was a director of Macquarie Corporate Finance, a division of Macquarie Bank Ltd. He earned about $2 million a year in salary and bonuses.

In 1996 Macquarie was advising TNT on a friendly takeover bid by a Dutch company, KPN. Mr Hannes’ actions in September may recall the proverbial haemorrhoid-afflicted elephant trudging through snow.

On September 9, he went to 15 banks. The reporting threshold for cash transactions is $10,000. At some banks, he withdrew cash from his own accounts for less than $10,000; at others he got bank cheques each worth about $9,000. He put the total, about $90,000, into a new account in the name of M. Booth at stockbrokers Ord Minnett.

On September 17, a person claiming to be M. Booth instructed an Ord Minnett broker by telephone to invest the $90,000 in options over shares in TNT.

M. Booth made a paper profit of $2 million when KPN’s takeover bid for TNT became public on October 2.

Early in 1997, Hannes was charged with the crime of insider trading. There is said to be a lot of that about, but that the criminals can rarely be charged because the evidence is essentially circumstantial. If so, it is an affront to jurors’ common sense. Dr Forbes again:

“It is a common fallacy to suppose that circumstantial evidence is intrinsically inferior to direct evidence. Eyewitness identification is direct evidence, but it is notoriously prone to error, and direct evidence of many kinds may come from unreliable witnesses. On the other hand, fingerprint and DNA evidence is ‘only circumstantial’ [but if] a child suspected of stealing chocolates is found with chocolate on his hands and chocolate wrappers in his pocket, but stoutly denies responsibility, the direct evidence points to innocence, while the evidence of guilt is ‘only’ circumstantial. Which would the reader prefer?”

Or the jurors?

Mr Hannes’ basic defence was that he and a Mr X had set up an investment syndicate and Mr X had bought the TNT options without telling him, and that, although Hannes did not give evidence and did not produce Mr X, the crown could not prove beyond reasonable doubt that Mr X did not exist.

The unlettered might think that is a bit on the gossamer side, but it may have been touch and go. After scratching their heads for five days, the jurors asked the Dizzo judge to explain reasonable doubt, and were effectively told that a rose is a rose is a rose.

In all, Mr Hannes had a committal hearing, a 55-day trial over 10 months (guilty), a successful appeal, a 75-day re-trial over 11 months (guilty), and a failed appeal in 2006.

imageBron McKillop (pic), of Sydney U’s law school, is an authority on the French and German systems and author of Anatomy of a French Murder Case (Hawkins, 1997). I asked him how the French system would have dealt with Mr Hannes. This is his brisk assessment:

“The investigator (judge, prosecutor or police) would have interrogated Hannes and required ‘X’ and M. Booth to present themselves for interrogation, failing which the appropriate adverse inference would have been drawn by the investigator, and by the trial court. All the financial transactions would have been established in detail in the dossier. These matters would have been taken on board through the dossier at the trial, confirmed by oral evidence of the material witnesses and probably also through the interrogation of Hannes by the presiding judge. The trial would probably have lasted a day or so, a week tops, with Hannes almost certainly convicted.”

In short, the absurdity system took 130 + days over 10 yeas to get the same result as the investigative system got in a couple of days.

Third, criminal appeal courts will consist of judges and non-lawyers.

Bron McKillop has reported that since 2001 a jury verdict of guilty in France can be appealed to a jury court of appeal consisting of three judges and 12 lay jurors.

Mr McKillop’s account, Review of Convictions after Jury Trials: The New French Jury Court of Appeal, appeared in The Sydney Law Review (Lawbook Co., June 2006). He said of this infuriatingly logical development:

“This may seem strange to anglophones but it shows a faith in the jury court as the ultimate arbiter of guilt in serious criminal cases, without the control of judicial review.”