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Evan Whitton
26 June, 2007  
A big heap of crap

Peter Hayes, whatever exotic cocktails he used to relieve stress, understood that pleadings “are a big heap of crap” ... Untrained judges have allowed mendacity in pleadings for 547 years … Criminal justice means rapists have a one-in-100 chance of going to prison … But, Sir Hugh Laddie has a remedy

The adversarial imperative to win, by lying if necessary, and guilt therefrom, may lead to stress, and the medications of choice can be many and varied, including booze.

imagePeter Hayes QC, 54, of Melbourne’s Owie Dixon Chambers, took on board an exotic cocktail of horse, snow and filles de nuit in Adelaide’s Stamford Plaza hotel on the night of Thursday May 10, and he succumbed 11 days later.

When the cause of his demise emerged on May 28, Jackie’s solicitor general, D. Bennet, 65 (pic), gallantly said:

“Barristers as a group would use illegal drugs less than the general community because they are likely to be concerned about breaking the law.”

That is really sweet of him, but it may just be that barristers’ ethical duty to daily deceive judges, witnesses and jurors convinces some that they can get away with anything, including never paying tax.

imageWhatever might be thought of Hayes’s (pic) choice of stress-relief, he understood the procedure that 15th century barristers used as the wedge to invent the corrupt civil adversary system. In a 1998 paper for the Law Institute of Victoria, he said:

“I think that pleadings are a big heap of crap, essentially … the rules – call it anal retentiveness … are nonsense, are all an impediment these days to justice.”

One impediment to justice is that, in what is fondly called the Rolls Royce of legal systems, untrained judges have allowed mendacity in pleadings for 547 years.

Does that mean judges are not concerned about being lied to? Or that, even on $3,000 a week, they have lacked the intellectual equipment to stop it?

I imagine the man on the Clapham omnibus, however poorly paid, would resent being lied to like that, and that it would take him five minutes to figure out a way to end it.

Which suggests we have the wrong judges or the wrong system, or both.

The Laddie Remedy

As Dickens knew, and Tulkinghorn has lately reminded us, trial lawyers control the adversary process and spin it out to feed their greed.

The UK ace on intellectual property law, Sir Hugh Laddie QC (b. April 15, 1946), a former Justice of the High Court, reflected on the length and cost of civil litigation in Legal Week on May 26, 2006. He wrote:

“Go back to the drawing board and consider the possibility that the adversarial system is past its sell-by date.”

Legal Week then polled senior partners at 100 law firms, and on June 8, 2006 reported that a remarkable 40 per cent agreed that the adversary system is “past its sell-by date”. The other 60 per cent agreed that it is “an essential pillar of British justice”, or perhaps their bank balances.

imageOn May 22, 2007, Sir Hugh Laddie (pic), now Professor of IP Law at University College London, noted in The Times that a small to medium patent case costs three to 10 times more in England than in Germany or the Netherlands.

Professor Laddie obviously knew that judges who control the European process have no reason to spin the proceedings out. His next step was logical, and may be termed the Laddie Remedy. He wrote:

“Perhaps it is time to do the unthinkable and start making our system much more like that used by our continental colleagues.”

That is of course not unthinkable at all. For one thing, the continental system is already used, however well or badly, every day of the week by coroners, royal commissioners, permanent commissioners on corruption, and by staff on the UK Criminal Cases Review Commission.

And for another, there is the judgment of Dr Robert Moles, (LL.B [Hons] Queen’s University Belfast 1978, PhD Edinburgh University 1985) who is now the authority on perversions of justice in South Australia and elsewhere.

Dr Moles wrote last month:

“Mr Whitton’s remedy might look extreme now, but in a year or two it will represent the conventional wisdom.”

It seems that those who despair of getting justice in our courts can at least look forward to hearing the one-bell toll for the adversary system.

Rape sell-by date

The splash in Rupie’s Sydney Daily Telegraph on Monday May, 28, was:

It’s time to end rape nightmare.

Rape is the sort of crime which incurs a prison sentence of up to 35 years, but reporters Janet Fife-Yeomans and Lisa Davies said 70-90 per cent of rapes are not reported; 80 per cent of those reported are not prosecuted; and of the accused nearly 75 per cent are found not guilty.

Let’s say 80 per cent are not reported. Of 100 rapes, the figures mean that 20 are reported, four are prosecuted, and one results in a guilty verdict.

It should be obvious that such a criminal system is past its sell-by date. The Laddie Remedy beckons. But what does it entail? Here is a bit of Continental Law 101 that common law schools somehow forget to teach.

Unlike the adversary system, the continental system accepts:

  • Justice means a fair go all round, for accused, victim and public.
  • Having trained judges search for the truth is the way to achieve a fair-go all round.

    Pre-trial: A trained judge supervises the investigation. Fairness to suspects involves a series of filters to weed out dubious accusations.

    Trial: The trained presiding judge questions accused and complainant; does not hide evidence, e.g. that the accused has convictions for rape; and does not allow defence barristers to use cross-examination to butcher victims and pollute the truth.

    Changing to a similar system will sharply increase the rates of reporting, prosecuting and convicting rapers, and will deter some. Until then, serial rapers will know that the splash in the Telegraph means:

    Keep on raping: you have one chance in 100 of going to prison


Reader Comments

Posted by: Anonymous
Date: June 29, 2007, 4:20 am

God, Whitton, you are a bore about these things. Saw your book remaindered at Marrickville Metro recently.