So What Have We Learnt?

So what have we learned? Has justice been served or, in other words was the trial fair? Fairness and legal procedure are not always coterminous. The loudest voices concern themselves exclusively with fairness for an accused – perhaps properly so.

But does anyone ask is it fair for the victim? While an accused can sit comfortably behind his well paid mouthpiece and do and say nothing for the duration of the trial, the victim often stands alone in the witness box in his or her own private hell for days. How do you think you would perform in that inferno?

Is it fair for Witness J that the prosecutor apparently omitted to put the obvious questions to the ‘opportunity witnesses’, giving the High Court the very crack in the case that the defence were unable to produce? Is it Witness J’s fault that this elementary error was made and is it fair that the case should be decided not upon anything Witness J said or did but rather on the competence of counsel putting his case?

Of course the voices have already begun shrieking – ‘it’s the prosecution’s case, they have to prove it beyond reasonable doubt, don’t ask the accused to help them prove the case against him. The massive resources of the State are behind the prosecution against this single man.’

But ask yourself which would you rather have on your team – a comparatively lowly paid and over worked government lawyer presenting your case or two of the most expensive counsel in Australia backed by the inestimable wealth of the largest real estate group on the planet, the Catholic Church? So spare me the crocodile tears.

Our system has become dominated by an overbearing interest in pedantry and form. It has forgotten, if indeed it ever knew, that what we are desperately seeking when we don our wigs and gowns is TRUTH – what actually happened here? While to many non-lawyers justice means truth, to too many lawyers justice means process – because that is what the system demands.

Upon the rigid processes are heaped the many ethical restrictions and duties upon all practicing lawyers such as a duty never to deceive the court and a duty to strive to achieve the best result for his or her client. But these duties are themselves an obstruction to justice and obstruct the seeking of truth. If the client in a civil case is in the wrong, then the best result is to win the case. If he committed a crime then the best result is to get him acquitted. Both results deceive the court and pervert both justice and the search for truth.

We have to re-align our aim in the hunt for truth, particularly when it comes to vulnerable women and children and in rape and other sexually violent offences, for they are the victims who suffer the most when the process starts and the truth disappears in a fog of legal sophistry and cunning.

There is work to be done but do we have the courage to do it?

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