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Evan Whitton
19 September, 2005  
A good dose of derision

If it’s quite acceptable for barristers to use derision to obscure the truth in adversarial proceedings, why can’t it be used to extract the truth in commissions of inquiry? At last, someone sticks up for Lord Eldon’s skilful application of scorn


Bob (The Undertaker) Mulholland LLB (Qld), LLM (Lon), QC is a persuasive advocate. Against all odds he convinced a jury in 1991 that “Sir” Terence Lewis was hugely bent, and got him sent down for 14 years.

imageAnd now, in a breathtaking coup on behalf of Dr Darren Keating, director of medical services at Bundaberg Base Hospital, Bob has persuaded Justice M. Patrick Moynihan (pictured) to defenestrate an inquiry into the truth of certain surgical events at the hospital.

There had been some tut-tutting that the commissioner, A.J. Hunter Morris QC, questioned witnesses himself, and Bob had complained that he questioned Keating in a “scornful” manner. Marty Moynihan said he terminated the inquiry because A.J. had exhibited apprehended – not real bias.

AJ, whose Lex Scripta website has the words of Sir W. Schwenck Gilbert’s law songs, will be pondering the lines from Trial by Jury:

For now I’m a judge!/And a good judge, too!/Though all my law be fudge/Yet I’ll never, never budge ...

The defenestration was nice for Dr Keating and his former subordinate, Dr (Death) Jayant Patel, perhaps less so for baffled rellies of dead patients and punters who put up $5 million for the inquiry.

A few observations from your equally bemused correspondent.

Conduct of inquiries. I.D. Francis Callinan J (as he now is) knows about inquiries. As adviser to the heroic police minister, Bill Gunn, he was pivotal to the success of the 1987-89 Fitzgerald inquiry.

He also analysed three inquiries, National Hotel, Withers, and Fitzgerald, at a 1988 barristers’ conference in Hobart. He told them that section 17 of Queensland’s Commissions of Inquiry Act stated that an inquiry:

“Shall not be bound by the rules or practice of any court or tribunal as to procedure or evidence, but may conduct its proceedings and inform itself on any matter in such manner as it thinks proper.”

But, he noted sadly:

“Many lawyers do not readily translate from the courtroom to the inquiry room, and in saying this I intend to include judges.”

I interpret that to mean that the anti-truth adversary system, aka the Willys Overland Whippet of legal systems, is so ingrained in some judges that they can’t help trying to impose its loopiness on a pro-truth inquiry.
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Questioning. At a properly conducted inquiry, as in France and Germany, there is no counsel assisting; the presiding judge has the obligation of finding the truth, and so questions witnesses.

Even in our bastard form, questioning is usually a vaudeville act: counsel assisting softens up the suspect; the commissioner glides in for the kill, e.g. D. Paton Drummond/G. Edward Fitzgerald/J. Vincent Agius/J.R. Thomson Wood.

Scorn, derision etc. In the anti-truth system, a barrister is ethically obliged to use scorn to obscure the truth, but in a pro-truth system it is apparently wrong for a barrister to use scorn in pursuit of truth. How loopy is that?

But if derision is a symptom of apprehended bias, on whose neck might not the great axe fall? Even Fitzgerald’s? With cocks crowing all over the hearing room, “Sir” T. Lewis nine times denied he had given false evidence in Justice (as he then was) Angelo Vasta’s libel action. Fitzgerald scoffed: “You mean you can’t bring yourself to say it.”

imageAnd the funeral director himself poured – and rightly poured – a little scorn on “Sir” J. Bjelke-Petersen (seen here). When he refused to accept responsibility for endemic corruption, Bob put in the slipper: “You may not want to; you may have to.”

Appearance of bias. Like, so what, Marty? Apprehended bias may be a bit infra dig at a jury trial, but at an inquiry there is no jury to be prejudiced.

The common law has of course always loopily held that appearance is more important than truth. Libel law, for example, insists that a scoundrel’s reputation is more important than his actions.

No appeal? Bob cannot be blamed for putting up flimsy arguments. That is what lawyers do. Nor can Marty be blamed for, as I believe, getting it wrong. That is what judges do.

But what if Smart State Premier P. Douglas Beattie BA LLB (Qld), MA (QUT) does not appeal? Unless the decision is overturned, it will stand as a precedent with the capacity to cripple future inquiries, including his Crime and Misconduct Commission.

Even as we speak, Lewis is surely cranking up an appeal to get his conviction quashed on the ground that Fitzgerald’s scorn “tainted” the evidence Bob used to convict him.

The obvious choice to carry that argument is the great mortician himself, but he has taken a brief as counsel assisting CMC boss Bob Needham, who had a big hand in sinking Lewis: he persuaded his bagperson, Jack Herbert, to come back from London and give evidence against him.

Needham and Mulholland are inquiring into alleged – gasp! – corruption in the Gold Coast City Council.

Hold the derision, Bobbies.