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Savings for justice

By Evan Whitton - posted Wednesday, 4 December 2013

The new Treasurer, Joe Hockey, is desperate to save some money. One way is to stop buying aeroplanes that will never fire a shot in anger, and submarines that can be heard miles away. That would save the better part of $100 billion.

Another way is to change to a cheaper legal system, e.g. the inquisitorial (investigative) system we already use – not very well – for inquiries into the truth: inquests, Royal Commissions, standing commissions on corruption.

In the French version of that system, trials run by trained judges mostly take a day or so. In the (taxpayer-funded) adversary system which operates in England and its former colonies, judges are not trained as judges, and trials run by lawyers can take weeks or months.


The French system is more accurate and fairer. The innocent are rarely charged, and 95% of guilty defendants are convicted. In our system, at least one prisoner in a hundred is innocent, and more than 50% of guilty defendants get off.

But could Mr Hockey persuade his Cabinet colleagues to change to a better and cheaper justice system? Two things may be relevant:

  • Lawyers are convinced – against all the evidence – that the adversary system is incomparably the best ever devised.
  • Lawyers are 0.2% of the population, but 59% (11 of 19) of the Cabinet.

The lawyer-politicians (in order of their place in the Cabinet) are: Tony Abbott, Julie Bishop, Eric Abetz, George (Soapy) Brandis, Joe Hockey, Christopher Pyne, Kevin Andrews, Malcolm Turnbull, David Johnston, Greg Hunt, Matthias Corman.

Brandis is first law officer. Lawyers down on their luck and with mouths to feed will hope he can persuade Hockey and the others to find more money for legal aid, perhaps including civil litigation.

Legal aid is a tricky area.It was invented by England's Attorney-General, Sir Hartley Shawcross (1902-2003), in 1949. An English lawyer, Arthur Marriott QC, told a Sydney audience in 2005: "Perhaps the main impact of the [Legal Aid] Act was the extraordinary growth in the numbers of practising lawyers."

A US lawyer, Alan Dershowitz, said: "The American criminal justice system is corrupt to its core … The corruption lies … in its processes …" Part of the corruption is that rules which conceal significant evidence bias the system in favour of criminals.


Dershowitz also said that all defence lawyers, prosecutors and judges know that "almost all" accused are guilty. So a defence lawyer knows that her client is almost certainly guilty, but legal ethics require her to get the best possible result for the client, i.e. to try to get him off.

That may or may not be acceptable when the client is paying. It cannot be acceptable for legal aid lawyers to use taxpayers' money to in effect pervert justice. The only proper advice they can give guilty clients is to plead guilty and get the discount for saving taxpayers the cost of a trial.

Rhonda Buckley, 51, a grandmother, was strangled in Newcastle on Tuesday, September 25, 2001. Next day, her lover, Lyle Simpson, 47, tried to kill himself. DNA tests showed his semen was on her body. He was charged with murder.

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About the Author

Evan Whitton is a former reporter who became a legal historian after seeing how two systems dealt with the same criminal, Queensland police chief Sir (as he then was) Terry Lewis.

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