Juries over Judges #
When the very institutions, commissioned by the people, of the people and for people, betray the people, we know that democracy is under assault, descending into the authoritarianism of bulwark state power. The real risk of Judges over ruling a jury decision is our loss of the High Court’s sense of public accountability usurping the power of the people. Conversely, Juries can be easy prey for unscrupulous advocates using eristic, rhetorical or misleading theatrics.
The earliest literary reference to juries is likely in 458 B.C., when Aeschylus produced the Oresteia, the greatest tragic drama in human history. It is a window into the evolution of Athenian justice, the principles underlying its law, and the threats to justice inherent in human passions. Athene, the goddess of Wisdom attempts to cauterise the relentless cycle of revenge. She does so by summoning an impartial jury of twelve Athenian citizens to hear the reasons of the case for and against Orestes. When the jury ends in a tie, Athene casts the deciding vote for compassion and mercy and healing rather than continued violence.
The Magna Carta, 1215, established a basic, yet unprecedented, idea: that every free man is subject to the law, including the King, the basis for the right to justice and due process for all.
“No free man shall be seized or imprisoned, or stripped of his rights or possessions . . . except by the lawful judgment of his equals or by the law of the land,” Article 39.
Any attempt to thwart the will of the people can be seen as a threat to democracy.
Homer refers to “warping a noble nature to ignoble ends”. David Hume predicted: “The corruption of the best things gives rise to the worst.”
Peter McLellan may have reset the culture of our Justice System by assimilating past trauma into Australia’s national psyche, making it acceptable to listen to the victims and believe the hurt, anger and pain of the powerless, only, in my opinion, to have all that public goodwill imperilled by the reactive, anachronistic culture of a recent legal decision by the Australian High Court to overturn a well informed and conscientious Jury decision.
To be fair, the Court did not declare Pell to be innocent, as many of his cheerleaders asserted, it merely determined insufficient evidence to reach a conclusive verdict.
So many extraordinary good judges’ esteem has been eroded by the few who protect their precious Judicial prerogatives, delivered with the towering condescension of an inscrutable deity, against sound grounded principles. Arrogated presumptions of inerrancy can blind smug, superior professions with a sense of unfounded interpretive superiority and immunity; all judges are subject to the same epistemology, using sound forensics and credible empirical methods.
Democracy and Institutions #
Democracy relies on the capacity, competence, integrity and trustworthiness of its institutions and their leaders to discriminate between credible assertions and self-serving lies, while respecting the sovereign will of the people. Most Judges are appointed purposely by current politicians, where politics can trump merit.
According to Felicity Gerry, Professor and Queen’s Counsel, Deakin University, Community engagement in justice is vital as jury service is an exercise in democracy. In cases where the public has a vested interest and the verdict could lead to a life-changing punishment, it is vital the community decides on a person’s guilt or innocence – and not a privileged professional.
She quotes Lord Devlin, a British judge well known for his stance against what he saw as injustice in the legal system, once said:
a jury cannot fight tyranny outside the law, but it ensures that within the law, liberty cannot be crushed.
Juries can be subject to judicial manipulation. When a certain amount of jury nullification goes on, sub rosa, it should be brought out into the open. The trial of the Chicago seven is just one instance.
And Sir Edward Bindloss::
jurors serve a political function: they are lay people who administer the law as a direct act of citizen engagement.
Some, Judges, however, once appointed, like Lady Macbeth, assume, “none can hold us to account”. It is little wonder, most western nations suffer from a trust deficit in our democratic institutions. Yet some Superior courts in many countries, like Custard’s last stand, make futile attempts to protect their vaunted unassailable privileges from populous sovereignty. American, English, Canadian and Australia’s higher court systems spring to mind.
John Mortimer’s play, A Voyage Round My Father, depicts “the law” as:
"…thegreat stone column of authority which has been dragged by an adulterous careless, negligent and half-criminal humanity down the ages".
Geoffrey Robertson calls it The Justice Game.
I would call it an intellectual game of Blind Man’s Bluff or Pin the Tail on the Donkey, where Judges use blinkers and even blindfolds to guess their infallible determinations.
Recent Australian High and Federal Court decisions appear to have become a way of “conducting politics of privilege by another means”. Too many partisan decisions of the privileged, by the privileged, for the privileged, erode our respect, confidence and trust in what should be our most prestigious institution.
Solon, Plato and Shakespeare also recognised the danger of the self - absorbed law being used by the powerful, as trickery, to consolidate their advantage over the weak. Highly contentious arbitrary decisions invite a high degree of cynical attention, resulting in disillusionment of the citizens. In a democracy, the sovereign will of the well informed citizen, should reign supreme.
While judicial review is, indeed, a vital cornerstone of our legal system and a fundamental protection for citizens against obvious injustices, several recent cases present questionable judgments, undermining their own credibility, questioning their legitimacy, shredding their authority. Fortunately, the majority of lower Judges are still highly regarded.
In a democracy, the last thing we want is to put our future in the hands of an unelected mob of lawyers, promoted by politicians, who have managed to climb the slippery pole of success and scrambled their way to the top of the hierarchical legal pyramid. Perhaps Evan Whitton was right when he “claimed 99% of lawyers/Judges give the rest a bad name”. Of course that is a gross exaggeration, it only takes a few at the top to do it.
Lord Acton warned “absolute power corrupts absolutely. Great men are almost always bad men. There is no worse heresy than the fact that the office sanctifies the holder of it."
Nietzsche’s dictum that ‘All things are subject to interpretation; whichever interpretation prevails at a given time is a function of power and not truth’ could be a justification for Judges overturning Jury decisions.
Judges and indeed most of the legal system, continue a 19th century infantilisation of the community, on the basis that criminal justice is beyond layman’s comprehension. Jurors with minds of their own, must be rigidly shielded from inadmissable information and guided in their duties by the priest-like ritualists of the legal system which disparages full knowledge.
The legal world remains the only investigative field where less information is assumed more reliable that getting the full picture. Judicial process likes to play a game of Blind Man’s Bluff, where deliberately blindfold your self and guess your verdicts.
You can’t judge on the basis of limited or restricted knowledge - or as Justice Mary Gaudron claimed: any lack of understanding results in jurisdictional error. Judges should be extremely wary of suppressing vital evidence. It seems there are some things the legal industry cannot or simply does not wish to understand.
Science is a badge of our sophistication, while all other methods are a reminder of our primitivism. Yet some, in the judiciary, entrenched in a Medieval mindset, tenaciously cling to their vaunted discretionary prerogatives of arbitrary justice and legal posturing.
To make sense, or derive meaning, honest investigations, require perspective, context and patternicity. Only in legal procedures, have lawyers managed to eliminate these, in order to control information, manipulating perception and skewing determinations through legalisms. Einstein suggested “we cannot hope to solve problems with the kind of thinking that created the problems”.
The biblical exhortation, “Judge not for you yourself will be judged," was reinforced by Jeremy Bentham’s rationale of accountability: “Publicity is the very soul of justice. It keeps the judge, while trying, under trial.”
Perhaps Superior Judges suffer from the Dunning-Kruger effect, a cognitive bias in which professions suffer from illusory superiority of perspicuity, mistakenly rating their ability much higher than average. This bias is attributed to a metacognitive inability of people in hermetic echo chambers to recognise their own fallibility; “the miscalibration of the incompetent stems from an error about arrogated presumption, whereas the miscalibration of the highly competent stems from a feeling of humility, deference and equality”. Justice Peter McLellan displayed plenty of the latter.
I quote psychologist David Dunning:
In many areas of life, incompetent people cannot recognise just how incompetent they are … For poor performers to recognise their ineptitude would require them to possess the very expertise they lack … The incompetent are often blessed with an inappropriate confidence, buoyed by something that feels to them like knowledge.”
In contrast, competent people can suffer from the Imposter Syndrome, a feeling of inadequacy, of not having done enough to achieve perfection.
In a robust democracy, a properly convened adequately instructed and fully informed Jury of citizens, is preferable to politically appointed, unaccountable, activist judges securely ensconsed in their privileged, out of touch, ivory towers. Yet the legal industry displays a patronising lack of faith in juries, cocooning them from any information either side feel might adversely influence them.
The defining characteristic in a full democracy - one where the people had the final say, not bureaucrats and definitely not political appointees, who presume the right to reinterpret and impose their own reality - is “power to the people.
To quote Janet Albrechtsen,”
First there was the ‘Divine Right of Kings’. Now we have the totalitarian usurpers pushing their utopian morass; called the, ‘Divine Right of Judges’”.
Ancient Wisdom #
Greek myths offer at least two instances where the gods defer to humans in judging disputes. When Hera’s Golden Apple is stolen by Discord, (aka, Eris) the goddess of strife or mischief, to offer it to the fairest, igniting the Trojan War, Zeus had enough nous not to get involved in the beauty contest. He had a Trojan shepherd, called Paris, adjudicate, avoiding animus from the losers.
Eris, (Eristic reasoning – Casuistry, Sophistry, Specious or Lawyer logic) is present in political debates, in court rooms and wherever people are talking, not to discover truth, but to win with whatever it takes.** Socrates** considered the debate in such settings unedifying, pointless and unworthy—in a word, “eristic”.
Plato argued that “justice is internal to the soul, requiring not laws, but discrimination and virtue”, however the reality as Hilary Mantel writes, “much of jurisprudence is an elaborate bluff and legal language is cognate with magic”.
In The Oresteia,** Aeschylus dramatises the supremacy of the common man. Agamemnon’s sacrifice of Iphigenia, unleashes an endless cycle of family blood vengeance.
With Apollo’s help, Orestes ends up in Athens where Athene, the goddess of Wisdom, attempts to cauterise the relentless cycle of revenge by summoning an impartial jury of twelve Athenian citizens to hear the reasons of the case for and against Orestes. When the jury ends in a tie, Athena casts the deciding vote for compassion, mercy and healing, breaking the relentless cycle of retributive violence.
If Athene, the goddess of wisdom and Apollo, the harsh law giver, relied on peer justice, why would any Judge today feel a superior entitlement and have the sheer temerity to audaciously overrule any reasonable, unanimous decision of a fully informed Jury? Even Solomon, in his own wisdom, recognised his own limitations in adjudicating disputes.
Overturning a Jury’s Verdict #
Overturning a jury’s verdict looks, to my mind, in this age of the universal education, like towering condescension; seeming rather presumptuous. Judges and Lawyers used to be eminently more educated and better informed than society, but today their status in society has diminished because of the rise of a variety of other equally educated professions. The Law has lost its lustrous sheen, released from its elitist ivory tower, brought down to the level of the rest of us mortals.
Richard Ackland cites a 1994 case, where Gerard Brennan Chief Justice of the High Court, in giving a minority judgement in the case M v The Queen, carefully considered the role of the appellate court in reviewing jury decisions.
“the jury have advantages in the finding of facts which are denied to an appellate court”. An assessment of evidence by an appellate court is a poor substitute for the assessment made by the jury. And that is so for a very basic reason: our belief in the validity of the life experience of juries.
When, as in this case, a finding of guilt or innocence depends on nothing but a contest between a child and her father as to what happened between them in the absence of others, I am unable to substitute any view that I might form for the view formed by the jury. Indeed, I echo the frequent observation of trial judges that the responsibility rests with the jury and not with me.”
We need judges who graciously acknowledge that all power in an egalitarian democracy is defined by its limitations. The best judges are aware of this and and like good parents, teachers and doctors have learned that respect and authority are earned, rather than invested; legitimised by serving the greater community with humility, dignity and real authority. Children, of exemplary parents and teachers, who have devolved their power, allowing children to make their own mistakes, respect and model themselves accordingly.
I am continually amazed by the high regard I have for parents, teachers and especially doctors who have mastered this concept. Many outstanding Judges are also cognizant of it, while others have yet to learn this elementary lesson.
Justice is core to our identity, but some modern-day Judges seem vainly to still consider themselves as superior exceptions to our country’s egalitarian values, resulting in a lowering of confidence in institutions. Many Judges abuse their perceived positions of privilege and power by pretending to be intellectual gods, with extraordinary acumen or perceptions, denied the rest of society. This is delusional. They have to make decisions based on the same criteria most of us do using all the evidence. Any judgement that fails the basic pub test is not worth a crock of Taurus excreta; exalting pride and privilege above principle.
Vital to any vibrant democracy is trust; faith in the “fairness and how our legislative and judicial branch can continue to be respected,” Ms. Murkowski, the lone Republican to break with her party in voting to block Brett Kavanaugh’s confirmation.
The whole purpose of the court system is to show extraordinary disinterest; acting in the interest of the common good. Any other agenda smacks of self-interest and vanity, justified by mumbo jumbo.
Judges have extraordinary privilege and power that calls for an extraordinary level of responsibility, accountability, and transparency. Integrity and disinterest are key to ensuring that, in all cases, the dishonest do not benefit at the expense of the honest, the powerful over the weak or the rich over the poor, is absolutely critical. If Solon was aware of that simple principle 2700 years ago, why is it so difficult to comprehend today?
Judges also have an undeniably difficult job. While the average Judge’s daily routine also is rather mundane (settling old scores), the job can be really demanding, as they have to be on top of broad, complex issues facing society today.
While Judges should not bow to “external pressure or lobbying”, yet they must be conscious of and meet reasonable community expectations for the common good. Judges have no special expertise in an increasingly complicated society, often lacking access to all the analytic, expert and research resources, or the benefit of full public consultation.
In jury cases, the judge presides over the selection of the panel and instructs it concerning pertinent law. The judge also may rule on motions made before or during a trial. In countries with a civil-law tradition, a more active role customarily has been assigned to the judge than in countries with a common-law tradition. In civil-law courts the procedure is inquisitorial—i.e., judges do most of the questioning of witnesses and have a responsibility to discover the facts. In common-law courts the procedure is adversarial—i.e., the lawyers for each side do most of the questioning of witnesses and the presentation of evidence, sometimes to exclude vital information and obscure the truth.
The problem is that all the Courts have, are two party’s conflicting stories. No time machines. No crystal balls. No ESP. That’s why an appeal court will usually only overturn a jury finding if it ignores strong, contrary evidence.
Making a decision about who to believe unavoidably involves subjectivity. In most cases, the evidence deserves assessment by a jury.
This is exactly what a jury is for. The jury system is designed to avoid credit assessments falling to individual subjectivities or any unconscious biases. Collectively, the jury can bring to bear the community’s views in a way that no individual can. As long as they are well informed, conscientious and properly guided, they are the best chance of getting it right.
A contrary, pragmatic consideration, was raised by the American comedian Norm Crosby: “When you go into court you are putting your fate into the hands of 12 people who weren’t smart enough to get out of jury duty.”
No system is absolutely fool proof, let alone idiot proof.
The quashing of George Pell’s convicton. #
Initially my sympathies were fully aligned with Cardinal Pell. I still believe that releasing him was the right action. My disappointment applies to how it was justified. This issue has polarised opinions, that no one can bridge. Each side is bunkered in their trenches and content with lobbing incendiary devices across “no man’s land”. Few are willing to shift position, regardless of how stark the evidence.
According to Rick Sarre -Adjunct Professor of Law and Criminal Justice, University of South Australia, there are two broad grounds of appeal against conviction. Each is found in both the common law and legislation that pertains to these matters.
The first, and far more common, is that there has been an error of law (or fact) in the way that the trial has been conducted, the way evidence has been wrongly admitted, or the way the judge has incorrectly summed up to the jury.
The less common basis of appeal is the verdict of the jury is unreasonable, or cannot be supported, given the evidence. The Pell appeal proceeded on this basis, and succeeded.*
Judges of the High Court have long wrestled with the difficulty of subverting the important role of the jury. Sarre then cites a 1997 opinion by then Chief Justice Gerard Brennan put the position thus:
the courts accept the jury as the possessor of both the skills and the advantages that are required to reach a proper verdict. In my respectful opinion, any contrary approach denies the importance of trial by jury and is inconsistent with the constitutional function which the jury performs.
Nevertheless, there may be exceptional cases where it appears that, despite its skills and advantages and the due observance of all relevant rules of law and procedure, the jury must have fallen into error.
In the Canadian province of Manitoba the credibility and respect for the court is seriously strained by courts overruling jury decisions with arrogated presumptions of solipsistic vanity, as Justice Karen Simonsen in the Candace Derksen Case doubtfully suggested the Legal industry had higher standards.
Recently in a similar Australian case, where a jury found the defendant guilty of murder, an appeal court arbitrarily downgraded it to one of manslaughter demonstrating a towering condescension towards Juries of ordinary Australians. Australians were so enraged, thousands marched on the street and the High court reinstated the original Jury decision. It is also uplifting when other Judicial systems display a capacity and willingness to self - correct as the recent South African court did in the Oscar Pestorios case.
Like the Geoffrey Rush case, where it was widely accepted that the court got the right result, but many questioned the process. Unfortunately, due to a deeply flawed, past its use-by-date, antiquated, adversarial court system, which requires Judges to deify one party while demonizing the other, no one wins - or more aptly - everyone loses -except of course the bank balances of all the legal eagles.
As Aeschylus pointed out: “Truth becomes the first casualty in (conflict) war”. Rather than conflict, the court system would be better off if it co-operated to establish all the facts to reflect reality.
In the Pell appeal there are many good reasons why he could be released, but it remains my considered contention, a unanimous decision by the High Court, due to an adversarial mindset, fell into jurisdictional error with fundamental flaws in their arguments.
I find the following adversarial reasoning unfathomable: “the jury, ought to have entertained a reasonable doubt as to Pell’s guilt. Based on “strong, credible and undispelled” alibi evidence.
With due respect, the jury did not need guidance from prosecutors or the Judge, in assessing or evaluating the evidence before it. It followed the precedence of the famous Lucius Cassius, a Roman judge, regarded as honest and wise, in the habit of asking, time and again, Cui Bono; ‘To whose benefit?'.* Years later, Mandy Rice Davies reinforced this truism with her immortal words: “(They) would say that, wouldn’t they?"
On the case at hand, the putative victim claims his motive came after attending the fifth suicide funeral of other victims. He was not seeking compensation. How do you dispel that?
The Chaser’s Charles Firth warns children to keep at least 1.5 metres from the released Cardinal Pell:
The warning came after the seven judges on the High Court found themselves to be better judges of the testimony of the victim they didn’t hear than the 12 jurors on the original case.
“If your child comes into contact with a George Pell, immediately seek expert advice so that you can be put through a lengthy but ultimately futile legal process.”
Victorian Premier Daniel Andrews posted the most apposite short statement to social media:
“I make no comment about today’s High Court decision”. “But I have a message for every single victim and survivor of child sex abuse: I see you. I hear you. I believe you”.
Perhaps the most telling indication of triumph, from the hard right, was the smug “the cat who ate the canary” look on Tony Abbott’s face as he told reporters in Sydney he didn’t want to comment other than saying “let the judgment speak for itself” This may explain the perception we have that the court system aligns with power; a rigged system of privilege, by the privileged, for the privileged. Pell’s phalanx of cheerleaders, powerfully based in the Murdoch media, always displayed a suspicious aura of confidence, that their politically appointed Judges, would fall into line.
There are at least three other appeals to Australian superior courts that give a strong impression they have aligned themselves with a powerful political establishment. One relates to the meaning of “personal correspondence” between Queen Elizabeth and John Kerr. Unless you agree with Humpty Dumpty, lexicographers give the provenance of language to its common usage, not the preserve of any Judge, regardless of how lofty, aloof or arrogant they can puff themselves up to be. Fortunately the High Court on May 28, 2020, redeemed itself by overturning this decision.
Others concern 87 complaints directed to our Australian Electoral Commission following the 2019 election. The fact that the AEC splurges thousands of our tax payer money to defend obviously shoddy electioneering ploys, fails to inspire much confidence in its regulatory rigor or its responsibility to the electorate. It demonstrates a contempt for the electorate. Most tyrants govern on the basis of rigged elections where “Scares sell, and calm sense does not,” or as Lynton Cosby noted “Fear beats hope every time”. Churchill was aware that “a lie gets half way around the world, before truth even gets its pants on”. Noam Chomsky claims, propaganda is to a democracy, what a bludgeon is to a dictatorship.
There is some sharp irony here. Ratbag politicians attract attention; rational ones get ignored. No wonder the qualities of our political leadership are so low.
If we can be so adamant that the source of Covid - 19 needs a full investigation, why don’t the many rorts of our own governing parties deserve full scrutiny?
Supporting the raids on media, especially the ABC, represent a further assault on democracy, as fierce and independent media is the lifeblood of any genuine democratic government.
Meanwhile, back at the ranch, according to the father of Pell’s victim:
“The County Court conducted a five-week trial and he was found guilty. The Victorian appeals court dismissed his appeal there, and he’s gone to the High Court and they’ve overturned the decision. I don’t think that’s justice. I think what they’ve done is they’ve done the legal fraternity an injustice in this country.”
Richard Ackland, suggests any perceived damage to the legal industry, as opposed to a justice system, is generally wholly and entirely self-inflicted. Why would any institution be so willing to put at risk its reputation, squander its standing, scuttle its diminishing credibility and undermine its legitimacy so cavalierly?
When citizens lose faith and trust in the Justice system, they revert to the survival instincts of vigilante retaliation, shredding the social fabric of any nation. There are many examples of this throughout the world. America’s gun violence is just one. Each year at least 50 white American policemen get shot in the back by disenchanted victims of injustice.
In the long haul, it is not a matter of right and left; simply the moral imperative of discriminating between right and wrong, sustaining public confidence, faith and trust in all our institutions’ integrity.