Australia’s Court System #
The entire Administration of Justice is the responsibility of the Attorney-General and overseen by Parliament. It comprises all the agencies to provide the citizens the protection and security of the laws passed by our elected representatives, from security guards, prison guards, police, prosecutors, attorneys to judges. Any failure at any level is the responsibility of the government of the day.
Prison guards, police or lawyers who abuse their privilege need to be curbed with deterring consequences. They are commissioned by the people of Australia and servants to the public. Any and all breaches of duty have disastrous, deleterious effects on citizens’ respect, confidence and trust in the entire Justice system.
What I find startling is how the Australian system has fluctuated between extreme highs and lows. The system appears to have internal resilience; the capacity to self-correct.
Questionable Judicial tactics #
In a free society any person is not only entitled to criticise the conduct of the courts or of a judge; we have a fiduciary duty. The courts cannot be, and are not, immune from criticism which may extend to robust observations of a particular decision or how it was determined. Judges are neither omniscient, omnipotent or infallible.
The courts originated in medieval times where judges derived their singular privileged status of supreme prerogatives over the ignorant masses.
Presently universal education has produced outsiders with vastly more expertise than many judges. Judges must defer to them. The Kathleen Folbrigg case is a prime example.
In any democratic system, the courts must always be the trusted ultimate arbiters, which is why they hold such an eminent position in society. Once they betray that trust, they shred their own respect, authority, and legitimacy.
Trust detriment, through poor decision making, reflects organisational cultures that do not focus on public interests. Such cultures promote short-term, small time power assertions, over longer-term public faith. Senior leaders, lacking willingness to tackle the cultural and systemic problems, undermine public faith, contributing to a lack of public confidence and trust in the entire system.
Albert Camus admires intelligence, but distinguishes between “intelligent intelligence” and “stupid intelligence”.
Intelligence is stupid when it is uses eristic or legalistic tricks. Intelligent intelligence is ethically serious – but not necessarily earnest.
Judicial attitudes suffer paradigm shifts, insidiously detrimental to society; sophisms - subtle, tricky, superficially plausible, but generally fallacious methods of reasoning, become tacitly accepted. The concentrated power invested in whimsical decision making, spells hubris, fomenting skewed judgments.
Australia’s pendulum swings freely back and forth. We have had some high peaks followed by low troughs. The extravagances of the nadir Barwick years were followed by many outstanding exemplars of honourable judges.
“Justice should Never Sleep”, But it does tend to doze off from time to time.
Good Judges #
The following is my potted history of justice in Australia.
For fuller portraits of Australian judges see:
https://nebo-lit.com/topic-areas/Justice/australian-judges.html
Outstanding Judges include David Collins, the first Judge Advocate who, anticipating the French Revolution, treated convicts as equal under the law.
Fortunately, within twenty years, English hierarchical order was restored with the appointment of the Bent brothers, (by name and deed) who relegated the convicts back to where they belonged and favoured the free settlers, begetting the Rum Corps and a bunyip aristocracy who believed they were exempt from the law.
In 1822, the pendulum swung back with the arrival of a progressive Francis Forbes, (1784–1841). Living during the times of the American and French Revolutions, he ‘acquired political opinions of the freest tendency’. He was committed to provide for the better administration of justice in New South Wales and Van Diemen’s Land and for the more effectual government thereof.
While Forbes maintained cordial relations with Governor Brisbane, and later, Governor Bourke, following disputes with John Macarthur and Samuel Marsden, he clashed frequently with the imperious Governor Darling over freedom of the press, the appointment of former convicts as jurors and the allocation of land to immigrants.
Forbes is also credited with establishing a public free Grammar School, and the in 1830 he laid the foundation stone of the Sydney College. Forbes was chairman of both.
Governors Brisbane and Bourke wrote glowing tributes to Forbes.
John Hubert Plunkett, an Irish Catholic prosecutor who successfully brought the murderers of the 1838 Myall Creek massacre to justice despite the resistance and hostility of the media supporting the budding bunyip aristocracy of landowners.
Situations deteriorated as expansionist settlers merely covered their tracks more successfully and squattors ignored laws restricting claims outside the nineteen counties.
Sir Redmund Barry, another Irish immigrant who brought enlightened decision making to the profession. Barry became unofficial standing counsel for the Aboriginals. He laboured as hard and as earnestly upon their cases, often capital matters, as he did upon his other briefs, though he rarely, if ever, received a fee for such services.
His interest in the Aboriginals was general and lasted all his life.
He presided over the trials of most of the Eureka rebels in 1855. No charge of bias or harshness can be urged against him here, and all the accused were acquitted.
His outstanding contributions to civic institutions in Melbourne grant him an enduring legacy.
Sir Owen Dixon, commemorated for sterling uprightness in jurisprudence.
Garfield Barwick’s leap frogging from barrister to cabinet minister, to Chief Justice was overtly political. While tacitly accepted, his tawdry engagement in the dismissal of Gough Whitlam cost him the support of most puisne judges and the direct opposition of Lionel Murphy and Sir Ninian Stephen. His reputation is unlikely to recover.
Evan Whitton, who has been reporting on corruption for more than thirty years, received the Walkley Award for National Journalism five times and was Journalist of the Year 1983 for “courage and innovation” in reporting a corruption inquiry. He was editor of The National Times, Chief Reporter and European Correspondent for The Sydney Morning Herald and Reader in Journalism at the University of Queensland. He is now a columnist on the online legal journal Justinian www.justinian.com.au
A fearless crime reporter, Whitton saw June 25^(th) 1969 as the high point in the rise of organised crime in Australia. Leonard McPherson, a well know colourful identity was fined a nominal $100.00 for consorting by Judge Murray Farquahar on dubious evidence given by Sergeant Frank Charlton.
From that day until the mid 1980’s, black and white hats, including the Premier, Robert Askin, the Police Commissioner, Norman Allen and Fred Hanson, intermingled freely with the stench of corruption like a rotting carcass in a stagnant pool rising to the top, rolling over and slipping below the surface again. (Evan Whitton)
Underworld figures have operated with impunity both in Melbourne, Brisbane and Sydney for years. We also have evidence that politicians have been compromised, yet we simply put up with it. How and why did things change?
Whitton inspired a number of other bright brains into legal journalism to expose incipient, incestuous and insidious corruption, including Richard Ackland, David Marr, Kat McClymont and Joanne McCarthy. Many would - be prominent politicians have ended up in jail.
The rebound to a more just society was remarkable. Progress was made in many areas to create a better society for all. Australia led the way in reforms in judicial oversight, National Crime Commission, drink driving, smoking bans …
The reaction to the corruption of the judiciary in the 1980’s, began when Clarrie Briese stood up for integrity. Many other judges followed his exemplary lead.
Frank Costigan’s royal commission into the activities of the Federated Ship Painters and Dockers Union set a renewed standard for probity, including the elite, through persistence.
Other judges instrumental in conducting fearless corruption inquiries include: The Honourable Justices: Sir Lawrence Street, Ian Temby, Tony Fitzgerald, James Wood, Peter McClelland AM, Kenneth Hayne….
Other High Court Judges have broken rank and spoken out about the politicisation and the closed culture within the Judiciary, including Justice Dyson Heydon and Michael Kirby.
Justice Mary Gaudron the youngest female appointee to the High Court, made significant contributions towards fostering a more progressive climate towards a just society. She is perhaps best remembered for the Mabo case, where in joint judgment with Justice William Deane, she said that Australia’s past treatment of Indigenous Australians was “the darkest aspect of the history of this nation”. (Wikipedia)
Sir Ronald Wilson, president of the AHRC, the centre of the first wave of the history and culture wars. He had been a conservative High Court judge, but went on to become co-commissioner of the Stolen Generations inquiry and Deaths in Custody.
“He began calling the Stolen children policy genocide, and was criticised roundly for it.”
Gerard Brennan, former chief Justice of Australia is clear on how the misconduct in mishandling evidence materially undermines public respect, impairing the institutional integrity of the relevant court.
Axiomatically, the legitimacy of the exercise of judicial power depends on its officers being above criticism… The power and the prerogative of a court to perform this function rest upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is a state interest of the highest order.
Appearance, no less than the reality, of independence is essential. The judiciary, … has public confidence as its necessary but sufficient power base. It has not got, nor does it need, the power of the purse or the power of the sword to make the rule of law effective, provided the people whom we serve have confidence in the exercise of the power of judgment. ‘Judicial Independence’ (Speech, Australian Judicial Conference, 2 November 1996)
Geoffrey Giudice, known as the ‘bosses man’ who helped make Australia’s Fair Work Commission fair.
“He brought to his professional life a mixture of humility, sophisticated intelligence, integrity, personal likeability, a preparedness to work, and a suppleness of thinking that enabled him to adjust to change,” said lawyer Michael Tehan at his funeral.
Peter McClellan, a Royal Commisioner for the Maralinga nuclear tests by Britain, and recently the Institutional abuse of children - a giant.
Justice Michael Wigney
All judges have a primary and fundamental duty to the profession and a core ethical responsibility to the community, to foster our continuing respect for justice.
The former Australian High Court justice Michael Kirby broached the great unmentionable of judicial bullying, when he recommended that protocols be developed to deal with judges who bully counsel.
‘‘In serious and repeated cases, bullying by judicial officers should be recognised as an abuse of public office warranting commencement of proceedings for the removal of the offender from judicial office,’’.
In August 2023 Justice Michael Wigney showed us that some courts can correct the system.
Australian Judge Salvatore Vasta is a thug and bully who runs his court rooms in line with the Spanish Inquisition, or if you want to be kinder, like the Star Chamber. He brooks no challenges to his absolute authority in his chambers.
What is amazing, because it happens so rarely, is that the Australian system of justice, on its own, has pulled Vasta into line.
The full bench of the federal court described the inferior court judge’s actions as a:
“gross and obvious irregularity of procedure”, with “serious and fundamental errors”, exceeded his jurisdiction, and was not entitled to the protection of judicial immunity."
Vasta has form, jailing anyone for contempt of court, merely for questioning his authority.
In ruling that Judge Vasta derserved no immunity, so was personally liable to pay $50,000 in damages to his victim, Justice Michael Wigney of the Federal Court has assured his entry into the Australian Hall of Fame for all Judges worthy of the honour.
Lawyers #
European Justice has primordial origins stemming from the need to resolve inter and intra family disputes that can tear society apart. Legal systems in England and Europe in the Dark and early Middle Ages believed in the Judgment of God, i.e. that the facts were gathered and the verdict delivered by an inscrutable deity. The procedure was accusatorial: one person accused another; the trial took various forms, including trial by ordeal and the judicial duel, or trial by single combat (trial by battle), in which an armed champion could stand in for accuser and accused. Now it depended on who could afford the superior warrior.
Duels were fought under the assumption God would reward right over wrong.
Lawyers purport that they are there to represent clients unable to understand the archaic arcane mindsets of the legal system.
Outstanding lawyers contribute positively towards a harmonious, fair and just society.
More @: https://nebo-lit.com/topic-areas/Justice/lawyers.html#google_vignette
Erosion of standards #
Jeannie Suk Gersen writes;
“rights can unfold and expand, however, they can also retract and constrict in breathtaking ways, pursuing a particular strain of logic one case at a time."
There appears a phenomenon that some present day Judges have become so removed from their formative roots that they are wholly innocent of any knowledge of what Justice is all about.
Legal trickery
For too long, the law has used the alleged backwardness of the public to justify their entitlement of superior insights. Since universal education, many professions have surpassed the scientific methodology of the legal/judicial procedures or due process. Scientists, philosophers, historians and other scholars would be ashamed to make some of the privileged leaps of faith made by some courts.
The Anglocentric justice systems suffer from a sclerotic culture emptied of its essential identity, its central ideas, its core values, its founding principles and its primary purpose of protecting the weak from the powerful in order to provide for the common good. They simply have lost the plot, and in their blind folly have little chance of finding their true selves again.
Many apologists for the legal industry desperately need remedial lessons in semantics.
All we ask of a legal system is that they help light our path to truth. Instead we are given the strong impression that most prefer to spread shadow - doubt, simply to provide more work and income for themselves and their industry.
Called the burden of proof, it transmogrified into absolute proof – an impossibility. Cardinal Pell relied on it to deny countless accusations against the priests under his watch and his own multiple allegations. After two years of legal wrangling, he was sent to jail, only for the High Court of Australia to give him the benefit of doubt. Immediately his cheer squad claimed his innocence.
There were many tools of persuasion that epitomize the inherent mindset of an archaic - past its use by date - adversarial system.
One piece of tactical wisdom most people have heard parroted at some point is about defining the battleground. If you can set the terrain on which the argument is fought, goes the theory, then you will win. It’s all in how you frame the language and the parameters.
It is the deceit of words and sleight of hand which may not involve any deliberate falsehood, but inferentially manipulates our perceptions, what Wittengenstein calls the bewitchment of our intelligence by means of legal inflected language and eristic argument.
Judges and Barristers can perform convoluted and unseemly sets of linguistic gymnastics to justify their determinations. The key to a complex argument, is not open to any spin you choose to put on it, or dogmatic assertions delivered with bluster, bombast or pomposity; but quiet authority, authenticity – assured by logic and the testing of fact.
We recognise that there can never be a wholly true representation of reality as it is at the mercy of perception, perspective, time, memory and language.
Coronial Inquiries a.k.a. Inquests: #
Sir Ronald Wilson Stolen Generations inquiry and Deaths in Custody. “He began calling the Stolen children policy genocide, and was criticised roundly for it.” He produced the Human Rights Commission’s report on the stolen generation, Bringing Them Home.
Indigenous deaths in custody worsened every year since the end of 1991 royal commission totalling more than 500.
And we pride ourselves for not being racist.
All suspicious deaths need to be investigated. It is the quality of investigations and implementation of recommendations that determine the effectiveness of these inquiries.
Recommendations often gather dust or are merely accepted in principle, but not in reality.
Mulrunji inquest #
One of the most outrageous travesties of justice was the black death in custody of Mulrunji Doomadgee, on Palm Island in 2006.
National Indigenous Times editor Chris Graham writes: (May 2009)
What’s not being contested is that Mulrunji Doomadgee, a man with no prior history with Palm island police, had simply chipped a black police liaison officer for assisting in the arrest of an Aboriginal person. He was warned to move on, and did so, but for reasons known only to Hurley, he decided to go and arrest Mulrunji anyway.
Within an hour Mulrunji was dead.
What’s not being contested is that the injuries inflicted on the deceased were staggering – Mulrunji’s liver was “almost cleaved in two”, his spleen had been ruptured, his portal vein was torn, four of his ribs were broken, and he suffered a number of abrasions to his scalp.
What’s not being contested is that while Mulrunji lay dying in the watch house, writhing and screaming in pain, no-one came to his aide. He died on the floor of a police cell while another Aboriginal man (who has since taken his own life) tried to comfort and console him as he bled to death from massive internal injuries.
What’s not being contested is that Hurley didn’t even have the courage to tell the family their husband, father, son was deceased – when they arrived at the police station later in the day to visit, he told them Mulrunji was sleeping, and to come back later.
What’s not being contested is that three days before the resumption of the inquest in 2006, Mulrunji’s son Eric hung himself from a tree on Palm Island.
What’s not being contested is that Queensland Police conducted a woeful police investigation into the death; that Hurley drank beers with investigating police (including an officer from the Ethical Standards Command, there to ensure everything was “above board”) only a few hours after the death; that police neglected to mention to the pathologist conducting the autopsy that there was an allegation of assault of Mulrunji by Hurley from an Aboriginal witness in the watch house at the time; that Hurley had run over an Aboriginal woman in a police vehicle six months earlier; that the only people ever punished after the death in custody have been Aboriginal people, with dozens jailed over the uprising that followed Mulrunji’s death.
What’s not being contested is that numerous Aboriginal people were tasered during the arrests following the uprising, while police including at least one of those accused of engaging in a cover-up of the death were awarded bravery medals for their service on Palm during the uprising. The extent of their injuries was a bruised hip.
What’s not being contested is that Chris Hurley successfully obtained a $100,000 ex-gratia payment from Queensland Police to compensate him for his losses in the uprising.
What’s not being contested is that he was also allowed to take leave with full pay for months while awaiting trial for manslaughter (he was acquitted). He has since been moved to the Gold Coast and the last I heard was serving as an Acting Inspector (a promotion in rank).
And ultimately, of course, what’s not being contested is that Chris Hurley killed Mulrunji.
A Queensland Labor government, under Peter Beattie lacked the courage to take on the Police Union, rather eventually paid out compensation of $ 30,000,000 to the residents of Palm Island.
Julieka Ivanna Dhu #
Julieka Ivanna Dhu was a 22-year-old Australian Aboriginal woman who died in police custody in South Hedland, Western Australia, in 2014. On 2 August that year, police responded to a report that Dhu’s partner had violated an apprehended violence order.
When Coroner Ros Fogliani handed down her findings in the inquest into the death of Yamatji woman Ms Dhu, she released nearly three minutes of the footage of Ms Dhu’s final moments. Activists described Ms Dhu, like John Pat before her, as being dragged “like a dead kangaroo” from her cell, down the corridor, to the hospital.
Language is important.
Fogliani described those who carried Ms Dhu as “inhumane” and “unprofessional”. CCTV vision of Ms Dhu being carried and dropped was “profoundly disturbing”. The coroner considered the matter “unfortunate” some 25 times. It was “regrettable” 11 times. “Sad”, 12 times.
The commonly used misnomer “unfortunately” to ameliorate a systemic failure is dishonest. This blames Fortuna, who is an unlikely suspect. Generally the fault is a deliberate inertia or policy decision made by a nameless and faceless bureaucrat.
Assessments like those delivered by Fogliani, addressing the conduct of third parties in deaths inside, are rare.
More commonly, coroners blame ephemeral things like “disadvantage”. Even more commonly, they blame the deceased. Those who have died inside were “arrogant”, “verbally aggressive”, “difficult”, “drunk”, “brain damaged”, “impulsive”.
What about the criminal chargeble negligence of authority figures who should be better trained? They have an absolute duty of care owed to the people in their custody.
Outside of its pithiness and dehumanisation, the language coroners come to use about deaths inside is crucial. While coroners can’t impose any legal liability for the cases before them, they can and do use condemnatory language to express a sense of culpability – just like you and I might. That becomes important for advocates who seek justice for their loved ones.
For some reason, however, Julieka’s suffering has elicited less of our collective outrage and concern than the suffering of the animals in a Four Corners report.
Far less.
David Dungay #
David Dungay’s inquest resumed at the NSW Coroner’s Court, more than six months after the initial hearing began. Dungay, 26, died on December 29, 2015, in Sydney’s Long Bay Prison Hospital after being forcibly moved to an observation cell, restrained face down and sedated.
Darwin’s Don Dale Youth Detention Centre #
The torture of children at Darwin’s Don Dale Youth Detention Centre is not a practice that any reasonable mind could vindicate. After Four Corners showed pictures of young people shakled in spit hoods, the ensuing Investigation came up with a series of recommendations. The government claimed they had agreed to all, but evidence indicated that this was true in principle, but not in practice. The Minister claimed that some were just not possible!
Aunty Tanya Day’s #
In December 2017, Aunty Tanya Day’s death in custody occurred after the Yorta Yorta grandmother was kicked off a train from Echuca to Melbourne by a V/Line staff member, who said she was intoxicated and unruly. At Castlemaine, Aunty Tanya was arrested and taken into police custody, where she sustained a brain injury. She died in hospital 17 days later.
Lawyers are asking for a coroner to consider whether systemic racism played a part in her death. No one entered her cell for about four hours, with CCTV showing Ms Day hitting her head in the cell on five occasions.
Veronica Nelson #
Veronica Nelson, a Yorta Yorta, Gunditjmara, Dja Dja Wurrung and Wiradjuri woman died in custody while on remand for shoplifting offences on 2 January 2020 as due to Police errors, no legal representation and strict Victorian bail laws. The remand form presented completed by senior constable Rebecca Gauci, was “riddled with mistakes”.
Another anaemic conclusion, where no was held to account due to lack of evidence. Pathetic!
Radicalisation #
The Lindt Café Siege, resulted in the death of two innocent bystanders and a desperate Iranian.
It turns out that Man Haron Monis was merely a disturbed criminal from Iran, living in Sydney since 1996, driven to a desperate cause by his treatment by the justice system, not connected to any terrorist group and therefore a homegrown nutter.
What was it that radicalised him to the extent he was prepared to resort to terrorist tactics?
Monis had been dropped from the ASIO watch-list, apparently because the agency decided he was not a serious risk. Those who knew him well, agree.
In December 1913, a Magistrate, Darryl Pearce, said about an accessory to murder charge, “the case against him was “weak” and that he did not represent a threat to the public”, granting bail for Monis and his accomplice, Amirah Droudis, a judgment seemingly sound but uninformed.
Police originally resisted bail - refused - when he was charged in April, 2014, with sexually assaulting one woman in 2002. But magistrate Joan Baptie granted bail in May, noting he had no convictions for violence. And police say they acted on the advice of the Director of Public Prosecutions when they decided there was no point opposing bail in October, 1914, when Monis was charged with the sexual assault of six more women.
One serious question must be whether the nature of Monis’ offences in effect took him off the radar - that violence against women did not register with security bureaucrats and counter-terrorism AFP officers as predisposing Monis to “real” violence of the kind they focus on. If Monis was “just” an accused rapist involved with the murder of his former partner, did that blind agencies to his potential threat? (Bernard Keane – Crikey.com)
After the siege, Public sentiment was enraged with threats of violence to the Judges resulting in bail for his partner in crime, Amirah Droudis, being revoked within the week, following an acknowledgement “there had been some failings in the system”. The irony is that she likely never was, or will be a threat to the community, but the revocation of bail assuages public sentiment.
Manus’s original lawyer, Manny Conditsis contends it is vital to understand what possessed Monis.
“You have to walk in his shoes a little bit; not in sympathy, but to comprehend what happened. It’s very hard if you try to bring a Western understanding to what this guy did.”
Monis had fled a corrupt Iranian regime in 1996, forced to leave his then wife and children behind, “where people would lose their heads and hands if they didn’t do what they were told”. (That same regime told Australia that it wanted Monis returned to face charges over a $200,000 fraud, but Australia has no extradition treaty with Iran.) Monis had been through the rigours of the refugee process and was found to be genuine.
Before he was bailed on the accessory to murder charges, in December 2013, Monis alleged prison officers bashed him and threw excrement on the wall and floor of his cell and made him stand in or around it. “They told him it was because he had written the letters to the families of their ‘brothers’,” says Manny Conditsis, who saw him the next day.
“It was the only time I’ve seen him break down and cry. He cried like a baby. He was a broken person when I saw him, I can tell you that.”
With the multiple charges against him, Monis knew it was highly likely he would be going back to prison - and for a long time.
This may have driven him to desperate measures, turning him into a home grown terrorist. Has there been any attempt to identify the prison officers to hold them to account? What efforts have been put in place to train prison officers in more responsible procedures?
Eventually it emerged that the bullet that killed one of the hostages, Katrina Dawson, actually came from ricocheted police fire.
This raises another worrying factor; claims made by a number of high status Muslim leaders who knew Manus, offering their negotiating services which the police declined. This may yet prove to be a questionable decision – another failure of the system? Hopefully the various investigations will be rigorous, thorough and credible.
The alleged abuse by prison officers needs to be interrogated and if established, punitive action could deter such summary justice.
It is also imperative that incidences like this are not used by governments or media to foment fear for political gain or sell more papers. I am hoping for some grounded findings from the vast amount of money being spent on the investigation.
Case studies: #
I became deeply disturbed by what I consider the petty punitiveness of a recent Victorian County court’s mindset where a court sent a seventy-year-old, decent, upright, citizen, to an over-crowded jail system, criminalising a tragic accident. All of society would benefit more by community service orders for non threatening offences.
Most literature advocates for justice tempered by mercy.
Retributive punishments are the product of pusillanimous minds pandering to the lowest of denominators. That politicians indulge to curry populism is of concern, but judges should be capable of rising above such bases impulses.
We need to explore the complex moral terrain of forgiveness, rather than vengeance, which too often serves to pander to basic instincts of revenge rather than as an instrument of healing or justice. Though forgiveness is often linked with reconciliation or the abatement of anger, forgiveness is simply the refusal of retaliatory violence through practices of penitence and grief. It is an act of mourning irrevocable wrong, of refusing the false promises of violent redemption, and of living in and with the losses we cannot recover.
According to the Mayo Clinic, forgiveness brings a kind of peace that allows you to focus on yourself and helps you go on with life. There are many benefits of forgiving someone. Letting go of grudges and bitterness can make way for improved health and peace of mind. Forgiveness can lead to:
- Healthier relationships.
- Improved mental health.
- Less anxiety, stress and hostility.
- Fewer symptoms of depression.
- Lower blood pressure.
- A stronger immune system.
- Improved heart health.
- Improved self-esteem.
Is prison ever the answer to anything - except to protect tyrants from dissenters, or people who pose an enduring threat to society?
We can all agree with Brendan Behan’s quip that:
no situation is so bad, that the intervention of the law could not make it worse.
Enlightened courts versed in restorative justice could have found a more satisfactory resolution for all. Rawls’ concept of reciprocity is much more healing than base revenge.
Populous politicians tend to pander on outdated legal fixations, while the judiciary has actually shown some great promise since Dickens’ times, but appear to be on a downward, regressive slope.
All institutions have a potential to be a force for good when they act in good faith and in the public interest. They also have the power to destroy people, and our trust in institutions, when they fail to balance that with empathy and a duty of care.
Judges project a perception of legal learnedness, but do they have any concept of Justice as espoused by Solon. Solomon, Plato, or Rawls?
Evan Whitton became understandably disillusioned by the western civilisation’s adversarial legal industry. A rickety old system is failing in England (Julian Assange) America’s Supreme court, Canada’s anaemic regulatory system and Australia’s pedantic legalistic one.
Whitton proposed root and branch reform of the “past-its-use-by-date”, adversarial system. He insisted all judges need to be trained and educated toward Justice.
We have a legal system and a justice system and never the twain shall meet.
Rebecca Folbigg #
After 22 years, it was the persistent, courageous gaggle of scientists that simply refused to accept the Court’s versions.
Wendy Bacon writing in The Saturday Paper concludes:
In announcing the pardon, Michael Daley said it was “confirmation that our judicial system is capable of delivering justice … I am glad that our legal system in NSW contains provisions that allow for continual pursuit of truth and justice”.
His reassuring comment mocks Folbigg’s 22-year journey from arrest to release.
Flaws in the judicial system were an impediment to justice from the beginning. Folbigg would never have won her freedom if not for extraordinarily staunch friends, a tireless legal team and dedicated experts. The enormity of the injustice is hard to grasp.
It’s time for all judges to forego their unentitled prerogatives of arbitrary determinations and begin to rely on all available evidence to reach intelligent verdicts that meet community standards to restore our confidence, respect, and, above all else, trust, in what should be our most prestigious and valued institution.
Brittany Higgins: #
The Brittany Higgins case demonstrates that the court of public opinion is more reliable and lucrative than our sluggish legalistic court system.
More than 220 rape cases in Canberra failed to make it to trial. Higgins’ case, aided by the media, hit a legal hurdle inexplicable to us mere mortals. Yet she appears to have hit the jackpot purportedly 2.4 million?
Albrechtsen has a long history of vendetta journalism practiced by News Corps.
I have followed her for at least 25 years. She is an articulate and formidable writer and had done some great work, but now appears to be totally committed to the subversive culture of News Corps.
The difference between her and a pit bull terrier is that the pit bull does eventually let go.
I have just used the same dirty tactics they use: ad hominem arguments.
News Corps is renown for attacking women; to pick a few — Gillian Triggs, Yassmin Abdel-Magied, Emma Alberichi, Margaret Simons, and men they don’t like - Paul Barry, Julian Disney, Tim Flannery (who are we missing?)
All arguments can be skewed by framing and highlighting favourable or unfavourable ones.
We need to get back to basics and the beginning. Yes there has been a lot of collateral damage - Fiona Brown is just one of many, but to blame the victim, Brittany Higgins is a long bow.
Scott Morrison has a long history of Denial, Defiance and Deflection. He is adept at finding others to blame. We have to remember this happened during the 2019 election campaigns, one of the most discreditable ones in history. Every attempt was made to cover it up.
The real victims in this saga include Shane Drumgold and anyone else involved in what Justice Lee aptly called an omnishambles.
When Brittany Higgins claimed she was raped in Parliament House in 2019, there were 220 allegations of rape in the ACT that police had not acted on.
The ACT Director of Public Prosecutions, Shane Drumgold, appears the scapegoat of one of the most scandalous criminal cases in Australia. Drumgold accused the investigators of mishandling protected information and working against him to sabotage the prosecution – something they deny.
Drumgold suggested his relationship with police began to deteriorate after he instigated a review of low percentage of sexual assault allegations that proceed to charges and prosecution in the ACT.
A totally discredited, Justice Walter Sofronoff, investigating the entire SNAFU, acknowledged the Police made a lot of mistakes, including not being able to demonstrate a clear understanding of the threshold test for when a sexual assault charge should be laid.
There is a lot more damage to anyone remotely involved.
The inability of a degraded legal industry to satisfactorily resolve conflicts should be patently obvious. Look how they managed to stuff up the George Pell case. If that’s not an indictment of the entire system, what is? And we are supposed to have confidence in the system?
When the court system becomes a victim of mockery, it loses credibility in the eyes of our most respected citizens; we’re in trouble.
Allowing the Ben Robert-Smith defamation to proceed before any full investigation, appears Alice in Wonderlandish…
“Sentence First, Verdict Afterwards, followed by a trial”.
Jarryd Hayne: #
In the Jarryd Hayne case, the Office of the Director of Public Prosecutions confirmed in a statement that Hayne would not face trial for a fourth time.
“Having carefully considered the many competing factors that inform the assessment of the public interest in this case, the ODPP has determined not to proceed to a fourth trial against Mr Hayne,”.
“The decision was made in accordance with the Prosecution Guidelines.
“As the reasons for the decision are legally privileged, they will not be disclosed and the ODPP will not comment further.”
So much for open justice.
Rod Higgins: #
A Victorian magistrate in his sixties, Rod Higgins, left his wife to form a relationship with a young court assistant, attracting extensive media coverage which pushed her “over the top” by “salacious revelations of her private life” in the days leading up to her suspected suicide.
Mr Higgins – who has since retired as a magistrate – has shamelessly pocketed $180,000 from Ms Petrie’s life insurance and her superannuation.
It came despite Ms Petrie’s mother being nominated as the beneficiary of both funds.
The legal industry knows how to take care of its own, demonstrating its contempt for us and natural justice.
Then they expect us to respect and trust them?
How can we respect them if they show no self respect?
It is the cumulative failures that indicate the legal system has lost its way and appears no longer capable or competent in delivering Justice. The consequence is that, like Trump flicking the bird at the American Department of Justice, we lose our faith, confidence and trust in what is supposed to be the last guardrail of our democracy.
There is a disobliging view that those in the legal cartel are primarily interested in money, status and power; Judge Richard Posner, a US economist and appeal court judge, said this of the cartel in 1995:
”… self-interest has played as big a role in legal thought as in medical thought … The history of the legal profession is to a great extent, and despite noisy and incessant protestation and apologetics …. an intricately and ingeniously reticulated though, imperfect cartel.".
Charles Dickens observed in 1852: “The one great principle of English law is to make business for itself.” Judge Rothwax: ‘… we have a system that is run entirely by lawyers for their own interests and for their own benefit.’ Yale law professor Fred Rodell: ‘The legal trade is nothing but a high-class racket.’
The reputational damage to the courts can only be avoided, by appreciating the limits to their authority. Without responsible decision making, under independent external oversight, our lack of respect will eat away at the justice system’s prestige even more.
When the court system becomes a victim of mockery, it loses credibility in the eyes of our most respected citizens, we’re in trouble. The only thing we ask of our legal system, is that they stay true to our shared values.
One of the troubling things about court cases is the fact that so many ordinary decisions are manipulated by vested interests and opaque presumptions. Courts should respect experts, rather than giving greater weight to the airy claims of hucksters and grifters with their unfounded self-serving tosh.
Why are our elected representatives so spineless in curbing the impunity of judges? During the 1980’s and 90’s, several judges had to front parliaments to explain dubious decisions or questionable actions.
Why is that not happening anymore?
It remains up to each of us to support each other against governments and public servants, who flout timeless reasonable norms, demonstrating no intelligence, public interest or integrity.
There, but for fortune, go you or I.