Yes, the law can be an ass
A good book review by John Silvester and Andrew Rule The Age September 18, 2010
IT is an often-repeated truth that journalists sit somewhere between dung beetles and vampire bats in the pecking order of life.
Cynical old hacks on travel junkets will write that a fly-blown hotel in Bongo Congo is the new honeymoon hotspot in exchange for beer nuts and access to an airline executive lounge.
Subeditors usually have criminal records and cannot be trusted to enter public spaces during daylight hours. They are kept in darkened rooms where they are fed swill laced with animal tranquillisers in return for writing pun headlines (see above).
Photographers have pupils the size of pinheads, wear jeans made by prison inmates and appear to live on a diet of adrenaline, sugary drinks and salt-and-vinegar crisps. They all drive cars very fast and several actually have licences.
And yet there is a handful in the trade who can be considered craftsmen; journalists such as Les Carlyon, Harry Gordon and Evan Whitton have been the moral compass for those who have followed for decades.
Whitton is a self-declared reptile of the press who learnt his trade at the now-defunct Melbourne Truth. He wrote consumer affairs stories and dabbled, as he put it, in crafting ”soft porn” for the masses.
Someone had to do it.
While the more respectable daily papers ignored or lampooned corruption whistleblower Dr Bertram Wainer, Whitton helped find him forums to air his revelations that some of the state’s best-known detectives accepted bribes from abortionists.
Wainer’s campaigns resulted in not one but two royal commissions on police, the Kaye inquiry (1970) and the Beach inquiry (1975-76).
Whitton has spent 30 years covering crime, corruption and courts, using a keen eye, an inquisitive mind and rare research talents to produce unique essays that shine lights into dark places. His opinions are backed by facts, and the former journalist of the year has concluded our court system is irreparably broken.
Even more startlingly, he has discovered there is something morally lower than a working hack from the press: criminal lawyers. It would appear he believes such creatures think that Integrity is a small island in the South Pacific and Scruples a board game played following after-dinner mints.
He argues in his new book Our Corrupt Legal System, Why Everyone is a Victim (Except Rich Criminals) that the British adversarial system has failed and we should move to the European inquisitorial model.
He says the European system is cleaner and less open to abuse than our present process, which is unnecessarily complicated and designed not to discover but to hide the truth. He believes lawyers, judges and politicians (many of them former lawyers) are wedded to a process that is too expensive and fails too often.
He writes that the European model empowers judges to find evidence and discourages lawyers from concealing it. Trials are quicker and more just.
There are certain undeniable facts that show our trial process is in desperate need of review. Suspects can be jailed for more than a year before trial, evidence that is beyond dispute can be concealed from juries and witnesses can be forced to relive their nightmares through marathon cross-examinations.
Sometimes, image is more important than reality. Suspects are taught how to act and behave inside court. Tattooed arms are covered with business shirts, while tatts on the hands are concealed with Band-Aids and make-up.
One notorious killer arrived in a suit and wearing librarian-style glasses despite having perfect vision. The lenses were clear glass.
A bikie appeared in a collar and tie and listened in silence as his brief told the judge his client was now reformed. It was only after he was freed on a suspended sentence that he removed his shirt on the steps of the court to show he was still wearing a Hells Angels T-shirt.
An Asian gangster needed an interpreter in court because he could not understand English. This surprised the detective who had extradited him from Britain and sat next to the suspect as he laughed at old Benny Hill skits on the plane’s comedy channel.
”The adversary system is biased against people in business, industry, medicine and the media and in favour of criminals,” Whitton writes. ”The bias makes business for trial lawyers and the rule of law a joke in the worst possible taste.”
Lawyers work for their clients and routinely ignore facts that do not suit their arguments, he says. ”Controlling evidence enables them to omit the damaging bits; spin out the pre-trial and trial process; procure enough pelf to retire comfortably, if they choose, to the social status of untrained, uninformed and passive judge.
”Judges, of course, do the decent thing: they try to stay awake.”
He quotes an Andrew Denton interview with Sydney lawyer and sometime media observer Stuart Littlemore, QC, on Channel Seven as proof that justice runs a distant second to self-interest.
Littlemore: I mean, you really feel you’ve done something when you’ve got the guilty off. Anyone can get an innocent person off; I mean they shouldn’t be on trial. But the guilty – that’s the challenge.”
Denton: Don’t you in some sense share in their guilt?
Littlemore: Not at all.
Lawyer John Marsden wrote in his biography I Am What I Am how he twisted a sex victim’s words in the witness box until ”crying and under stress, she ended up agreeing – and in that moment I knew we had won … I am not proud of my conduct that day, but … I had to act according to the ethics of my profession … I had a job to do and I did it.”
His client was Ivan Milat, who would later rape and murder seven backpackers.
Whitton says it is not only defence lawyers who conspire and conceal – prosecutors can be just as bad. (The exception would be the dashing and debonair Director of Public Prosecutions Jeremy Rapke, QC, or any of his team with the power to launch contempt proceedings – which could end with your columnists sharing prison accommodation with Turkish drug dealers.)
Prosecutors, Whitton concludes, ”must know the system is unfairly rigged against victims, detectives, jurors, the community and themselves … and some try to balance defence lawyers’ dirty tricks with their own. The win-at all-costs culture thus gets the worst of both worlds. Criminals get off and the innocent – particularly the poor and those whose colour is different from those in the majority – go to prison.”
Only lawyers profit, according to the veteran observer: ”The system is immoral because, apart from everything else, it does not search for the truth.”
Whitton raises plenty of food for thought. Pass the beer nuts.