Our sainted proprietor detonated a brilliant insight in the SMH of July 4.
He said – I’m paraphrasing – there is the real world, and there is a parallel universe, the Alice in Wonderland world of the common law.
The parallel world exists because truth means reality and the common law has never given a fig for truth.
The European investigative (inquisitorial) system is interested in truth, and hence is part of the real world.
Robbo dips a toe in the real world
The ICTY (International Criminal Tribunal for the former Yugoslavia) absurdly uses a bastard form of the real and unreal systems.
As noted here on March 20, 2006, the ICTY website says it ...
“has created an independent system of law, comprising of elements from adversarial and inquisitory criminal procedure traditions … It has established a unique legal aid system, and groomed a group of defence attorneys highly qualified to represent accused in war crimes proceedings.”
Chalk and cheese don’t work, and neither did the trial of Slobodan Milosevic.
It ended only with his death in March 2006, no doubt to the dismay of the highly qualified lawyers whose snouts had been in the trough for five years.
Happy days are here again in the form of the Serbian psychiatrist, poet, politician, and herbalist, Radovan Karadzic, 63.
His trial is expected to last for 10 years.
However, Geoffrey Robertson QC, 61, (BA, LLB (Syd), BCL (Oxon) – pic – is willing to dip a toe into the pellucid waters of the real world.
Robbo says in The Independent of August 1 that if Karadzic “decides to ignore the case against him and to disrupt the proceedings … it may be necessary to abandon the Anglo-American model of adversarial trial and shift instead to the European inquisitorial process”.
If that distinguished lawyer can entertain the notion that truth should be the basis of justice, can our new CJ be far behind?
Bob French has an off day
The Hon Edward Gough Whitlam QC (b. 1916) sternly said in 1993:
“For the first time in my lifetime, the High Court has in Sir Anthony Mason [b. 1925, CJ 1987-95] a chief justice who is adequate in both national and international terms.”
That took in a fair amount of territory: Sir Samuel Griffith (1903-19), Sir Adrian Knox (1919-30), Sir Isaac Isaacs (1930-31), Sir Frank Gavan Duffy (1931-35), Sir John Latham (1935-52). Sir Owen Dixon (1952-64), Sir Garfield Barwick (1964-81), Sir Harry Gibbs (1981-87).
Sir Anthony (seen here in 1951) was followed by Sir Ged Brennan (1995-98) and Murray Gleeson (1998-2008). Now we have Bob French (b. March 19, 1947), BSc, LLB (WA) Federal Court 1986-2008).
Those who expect nothing will never be disappointed. We can’t expect much from a judge who has spent most of his working life in the parallel universe.
However, there seems to be an encouraging view that, more than most, French J could sometimes find a way to come down on the side of fairness and justice rather than law.
We can thus hope he just had an off day when he was in the 2-1 majority in the Tampa (September 2001) case, which did Jackie no harm at all at the election two months later.
Another winner from the Flamsteed stable: What English captain toured Australia but never played in a Test match?
Find the answer at the end of the piece.
Bob and Abe (and Kerry)
The leader-writer at Crikey made a fair point on July 28. He/she wrote:
“The extent to which Abe Saffron was intertwined with Sydney’s political and business elites reflects how systematically corrupt NSW was in the 1960s and 1970s … Billions of dollars made from the illicit drug trade are being recycled into the legitimate economy as investments and loans …
“With our present defamation laws, however, we’ll probably have to wait generations to find out which pillars of various establishments were corrupt in 2008.”
Organised criminals like Saffron (1919-2006) and Sir Bob Askin (1907-81, NSW Premier 1965-75) love libel law because organised criminals invented it, and judges say they can’t change it because of the rule of precedent.
Libel law goes back to King (1272-1307) Edward (Longshanks) I (seen here), who adhered to a practice established by King (1087-1100) William II. That is, he systematically extorted bribes from people who wanted a job, e.g. as a judge, which neatly enabled them to extort from the hoi polloi.
Wholesale extortion causes extortees to mutter. In 1275, Eddie had to invent a law to stop people muttering about him and other organised criminals, and in the 18th century, corrupt judges had to firm up the law to stop a new institution, journalism, muttering about them and corrupt politicians.
Libel law is still rigged in favour of organised crims and other plaintiffs by a reversal of the onus – the complainer does not have to prove his case – and by obviously false presumptions, e.g. a rude remark is presumed to be untrue.
Askin and his Police Commissioner (1962-72) Norm Allan (1909-1977) were thus able to extort with impunity from Saffron and other crims, including illegal casino operators Perce Galea and George Walker (born Ziziros).
Saffron’s son Alan, 59, says in his biography of his father (seen here together), Gentle Satan (Penguin, 2008), that in the late 1960s Abe, as bagman for other crims, was paying Askin and Allan sums varying from $5,000 (c. $70,000 today) to $10,000 (c. $140,000).
Saffron Jnr says Abe did a bit of loan-sharking at high interest rates to such dubious types as Kerry Packer, Sir Peter Abeles, Sir Paul Strasser, and brassiere king Frank Theeman.
Abe operated in every state, except Tasmania and the Northern Territory.
His son was prepared to name several living former politicians and police who were on Abe’s payroll, but libel law saved the corrupt from being held up to public gaze.
Bob French is an indefatigable giver of legal papers. It’s time he said something informed about libel law.
The parallel mind
Back in 1993, The Sun-Herald, amused by a claim that Bob Askin was not bent, collated a mountain of old and new evidence, direct, circumstantial and second-hand, which demonstrated beyond a peradventure that he was a seriously organised criminal.
Inquests and inquiries are supposed to operate in the real world. The organ asked a former coroner, Kevin Waller, to act as a Commission of Inquiry and report on what a reasonable person, using his commonsense and knowledge of the way of the world, would make of the evidence.
Mr. Waller reported:
“As a lawyer I cannot escape the constraints of my profession … one cannot be comfortably satisfied that he was the infamous bribe-taker he has been painted.”
That suggested two things:
With the best will in the world, it is hard for common lawyers, including judges, to escape into the real world.
Commissions of inquiry and inquests should be bookended by real-world people to tell the lawyer in the middle what the facts mean.
Any thoughts, Bob?
Dreary current affairs
For no good reason, television current affairs programmes, e.g. The 7.30 Report, tend to be pretty dreary.
They don’t have to be. The Daily Show with Jon Stewart is full of jokes and tells us all we need to know about that bizarre phenomenon, US politics.
The ultra sharp Stewart, 45, was born John Stuart Leibowitz, but changed his name, he says, because it sounded “too Hollywood”.
Happily, The Daily Show can now be seen on Channel 113 at a fairly reasonable hour, 6.30 pm EST.
20 questions for Richter QC
In February 2007, Robert Richter QC (b. Feb 1946, BA, LLB [Hons.] Melb) fearlessly accused AG (as he then was) P. Ruddock of being a liar and a hypocrite on the matter of Gitmo prisoner David Hicks, and challenged him to sue.
As noted, libel law is heavily rigged in favour of plaintiffs, but it appears that Mr Ruddock has gracefully declined the invitation.
Now, the Fin magga for August has 20 questions for Mr Richter (pic). In answer to a question on who influenced him, he says:
“The late Dr Bertram Wainer taught me that a brilliant and courageous client in search of justice for others can prevail. It is because of him that I got into criminal law.”
Dr Wainer forced two police corruption inquiries: Kaye 1970 and Beach 1975-76. (See Justinian, November 2, 2005.)
Melbourne detectives did not unduly trouble the Mob until quite recently, but some played hard against Dr Wainer and Mr Richter.
During the Beach inquiry, Mr Richter believed he “was under threat”.
“I was afraid that I would be framed up so as to eliminate me from representing Dr Wainer.”
Three detectives went to prison as a result of the Kaye inquiry, and Beach QC found there was “credible evidence” against 55 cops.
Since the parallel universe convicts something under half of the 99 of 100 accused who are guilty, about 25 of the 55 might have been expected to go down. In fact, the number convicted was zero.
Mr Richter’s view of the reason for that curious statistical anomaly would be interesting.
Here is a question for Mr Richter, Ian Barking QC and other giants of the criminal Bar (and perhaps French CJ).
Given that one accused in 100 is innocent, do you agree or disagree with the observation by US lawyer Maurice Nadjari:
“You can’t make a living defending innocent men.”
* * *
Answer to Rugby quiz: Captain Cook.
(That’s enough Rugby quiz – Ed.)