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Evan Whitton
14 June, 2006  
Marathon Man

Atticus Finch persuaded hordes of young idealists as to the nobility of adversarial lawyering, including Ronnie Sackville – but nobility can be an impediment … Plus, a little something for the NSW Law Society’s Pauline Wright to ponder

Anyone who still holds the charming view that the lawyer-run adversary system is not a business should climb up King Street, Sydney, have a nice lunch at Merrony’s, stagger up to Phillip Street, lurch into court 21A on the Federal side, and observe through field glasses the serried ranks of lawyers, one gently droning, in Seven Network Ltd v News Ltd.

A civil hearing in the judge-run investigative system takes a total of about one day; C7, as it is called, passed the century on Tuesday May 30.

The case began in 2002 and is said to have already cost shareholders in Seven (K. Matthew Stokes, 65, executive chairman) $100 million. Lawyers for companies on the other side, mainly Rupie’s News Ltd, Jamie’s Publishing and Broadcasting Ltd, the public’s Telstra, and Singapore’s Optus, have presumably trousered a similar sum.

It is not the first mammoth case the trial judge, Ronald Sackville, 63, LLB Hons (Melb), LLM (Yale), has had to endure. British Telecom Australasia v The State of NSW and Telstra began in 1995, but was in discovery mode in 1998, and the lawyers had garnered $19 million from that procedure alone.

imageAlarmed at the cost, Ronnie said he wanted to see the principals. Eventually, the Hon Trev Morling, 71, mediated a settlement in a week in Singapore – where else? – in February 1999. Mediation was tried in C7 in January but didn’t work.

Understandably, Ronnie may be getting a little light-headed. He grumped on Friday May 26 that even then the issues were not in manageable form, but when lawyers achieved the ton, he let them scoff a banana cake and a chocolate cake – presumably one crumb each – in his sacred court, and he admitted in these pages – On the Couch, June 5 – that his favourite film is To Kill a Mocking Bird (G. Peck 1962).

That agreeable film is sinister in the sense that it persuaded hordes of young idealists that adversarial lawyering is a noble occupation. It can of course be that, and we may be sure that Ronnie and the serried are all Atticus Finch reborn, but many learn too late, after buying the Maserati and the mansion on the never-never has locked them in, that nobility can be an impediment.

imageRonnie presumably saw the Bird when he was an impressionable 19. He may have missed Anatomy of a Murder (J. Stewart, 1959), which showed that the system can be a game played by the ignoble and corrupt, e.g. the late pederast, J. (Flogger) Marsden.

* * *

As we know, Flogger said he was obliged by “the ethics of his profession” (or business) to fabricate a defence to rape charges laid against his client, I. Milat, later shown to be a mass raper/murderer – Justinian May 31.

That may help with answers to these questions. Is it likely that a suspect who had a genuine alibi would tell detectives? And if he didn’t tell them, but claimed an alibi after he talked to a lawyer, is the alibi likely to be a fabrication?

In the real world, the answers must be Yes to both, but when the NSW Police Association’s Peter Remfrey suggested that courts should be able to take appropriate inferences from the second, the chairlady of the NSW Law Society’s criminal law committee, Pauline Wright, jumped on him with the full force of her stiletto heels.

imageLa Wright (pic) said (SMH Monday 22 May): “It’s a blatant push for more powers for the police and to make their jobs easier without having regard to the important principles of the criminal justice system, such as the right to silence.”

Oh dear. I hope any little testiness in what follows will be seen as no less justified than Ronnie Sackville’s in C7 and British Telecom.

How often does it have to be said that the “right” derives from a lie uttered by the first – and probably the worst, and certainly the most dangerous – common-law academic, William Blackstone?

How long must victims of crime and police wait before those who purport to administer justice put an end to the perversions resulting from Blackstone’s lie?

After all, it is 18 months since the issue was agitated here (January 11, 2005); five years since McHuge J said (Azzopardi v The Queen, May 3, 2001) that academics have been “dead wrong” about the “right”; and 22 years since Marks J. (Vic) exposed the earlier and different lie that Blackstone used to concoct his. To summarise:

From the fourth century AD, canon law said if you are naughty you don’t have to rush out and accuse yourself, but when sprung you must explain, if you can. Justice Sir James Dyer said it was canon law that you don’t have to accuse yourself, full stop.

Dyer’s lie was so obvious that subsequent accused could not and did not claim a “right” of silence, but ex-barrister Blackstone falsely asserted in his Commentaries (1765-69) that it was the common law that you don’t have to accuse yourself.

imageBlackstone’s lie was nice for criminals and for his former colleagues who were then on the way to “capturing” the criminal process and thus inventing the criminal adversary system.

How nice? In 1997, UNSW law lecturer Dave Dixon said about half those who stayed silent were convicted, and Alun Jones QC (seen here courtesy of a courtroom sketch artist) has said: “I am told that over half of all defendants in America decline to give evidence.”

The figures suggest that a quarter of the 99 per cent of accused who are guilty get off solely because of the “right” to silence.

Ms Wright might care to ponder this. The adversary system now affects 1.6 billion. In the past 200 years, how many millions of victims have been denied justice by Blackstone’s lie?

And Mr Remfrey might care to get rough estimates of the annual number and cost of criminal investigations that were a waste of time and money because of the lie.