In an Independent Australia exclusive, five time Walkley Award winning journalist Evan Whitton explains why our legal system is fabulous — for lawyers and rich criminals.
Taxpayers pay the wages of judges, police, prosecutors, legal aid lawyers etc. They are entitled to know that a truth-seeking system, as in France, would cost less and deliver more justice than the adversary system which England bequeathed to its colonies, e.g. Ireland, India, the US, Australia. Thus:
In France, trained judges question witnesses and have no incentive to prolong the process. Most trials take a day or so.
In the adversary system, lawyers question witnesses, and at $10+ a minute, have an incentive to spin the process out. Trials can take months. Untrained judges do the decent thing: they try to stay awake.
Justice Russell Fox researched the law for 11 years after he retired from the Federal Court. He concluded that justice means fairness; fairness to everyone [including victims and taxpayers] requires a search for the truth; truth means reality; and the search for truth gives a system its morality, otherwise the winner is likely to be the one with more money and cleverer lawyers.
The adversary system does not seek the truth, and hence fails all Justice Fox’s tests: it is unfair, unreal, immoral, and unjust.
In France, evidence is not concealed, and judges do not let lawyers pollute the truth with sophistry, i.e. false insinuations, false statements, false arguments etc. 95% of guilty defendants are convicted. The innocent are rarely charged.
In the adversary system, six rules which conceal significant evidence from jurors make it difficult to charge, let alone convict, serial rapists and white collar criminals, e.g. tax evaders, inside traders, price-fixers.
The rules and defence lawyers’ sophistry get more than 50% of guilty defendants off, but at least 1% of people in prison are innocent. On the civil side, negligence law is unfair to doctors and industrialists; libel law outside the US is unfair to citizens; it makes it difficult to report how they are being done down by rogues.
Judge Russell Fox says the public knows that “justice marches with the truth”. Informed taxpayers will thus support change to a truth-seeking system. Six times as many (trained) judges (and fewer lawyers) will be required, but it will still be cheaper.
Any parrot-house of sophistry deployed to resist the change can be safely ignored: lawyers are .02% of the population.
(Evan Whitton is the author of 'Our Corrupt Legal System: Why Everyone Is a Victim (Except Rich Criminals)’ Paperback: The Book Depository, Amazon; ebook: books.google.com.au/ebooks. Managing editor, and law school dropout, David Donovan will be reviewing this important book for Independent Australia in coming weeks.)