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Evan Whitton
13 December, 2005  
Bring on the Cour d'Assises

How fitting that Evan Whitton, in his final column for the year, should re-emphasise that the common law is a “load of money-making rubbish”. Which leads him to think that if the common lawyers are opposed to majority verdicts in criminal cases, then the change must be needed


Power often finds deception, self-deception, rationalizations and lies more useful for its purposes than truth and rationality ...”

Thus Professor Bent Flyvbjerg (pron. Floovjurg), of Aalborg University, Denmark, in Rationality and Power: Democracy in Practice (University of Chicago Press, 1998).

Step forward G. Walker Bush. He isn’t even a lawyer, but that old joke is made for him: we know he’s lying because his lips keep moving.

Confirmation, if such is necessary, comes from a Google search for “serial liars”. The first entry (of some 360,000) names George, Dick, Donald, Condi, and Colin. (Also ran, i.e. at second and third, is a book about the law.)

Those charmers got the accolade in a congressional report listing 237 “misleading statements” they had made. And that was only to March 2004.

Perhaps some genius in the Canberra press gallery will favour his customers with a list drawn from our great practitioners of the art of serial lying.

It should be emphasised, however, that Professor Flyvbjerg kindly went on to note that lying, deception etc “does not necessarily imply dishonesty”. He said:

“It is not unusual to find individuals, organizations, and whole societies actually believing their own rationalizations.”

imageWhich brings us, however circuitously, to the point. The common law is of course a load of money-making rubbish, and demonstrably so, but a few million lawyers and judges, daily injected with the precious rationalising fluid from syringes the size of those old Fly-Tox devices, may actually believe it is a good – better, best – system.

And if a system is near perfect, why change it in any major way? It would never occur to a Law Unreform Commission (LUC) to question the very basis of the common law, that plainly defective relic of the Dark Ages, the accusatorial system (see Justinian, November 30, 2004).

The defect is encapsulated in a chat between a celebrated pot, “Sir” J. Bjelke-Petersen, and an equally famous kettle, R. James Hinze. Accused by Joh of blackness, i.e. extorting bribes, amiable rogue Russ merely replied: “Prove it.”

Rational minds in Europe jettisoned the accusatorial approach eight centuries ago, but hits from the Fly-Tox apparatus tend to result in invincible ignorance of their system. How many common lawyers, for example, could correctly answer this multiple-choice question?

In France, the Cour d’Assises consists of three judges and nine jurors sitting together. They hear criminal cases carrying penalties of five years or more. Verdicts can be?:

a. 12-0
b. 11-1
c. 10-2
d. 9-3
e. 8-4
f. 7-5

imageThe correct answer is 8-4, but that need not alarm; the French system is more accurate than the common law in protecting the innocent and putting the guilty away.

The NSW first law officer, R. John Debus (Labor), pic, was thus doing nothing particularly startling when he announced on November 9 that a Bill allowing 11-1 verdicts in all criminal trials would be introduced in 2006.

He had the support of the head of the Dizzo, the Hon R. Oliver Blanch, the DPP, N. Richard Cowdery QC, and the shadow Attorney, A. Arnold Tink (LLB ANU), but the legal trade appears to be largely united against the plan.

How would Professor Flyvbjerg categorise that? At the least, I suppose we can speculate that if common lawyers are opposed to change, that is prima facie evidence that change is needed.