In a speech given at the NSW Law Society at the end of January 2012 Chief Justice Bathurst of the NSW Supreme Court said there is a crisis of confidence in the justice system.
If he wants to know a major reason for the crisis in confidence he need look no further than his own court, the NSW Supreme Court, and his predecessor, Chief Justice Spigelman, who resigned in disgrace on the 31st May 2011. Mr Spigelman still needs to answer some serious questions about his own criminal conduct and the corruption within the court, but more on that later.
CJ Bathurst’s reasoning seems to be that the lack of confidence is everyone elses fault except the judges. My argument is it is mostly to do with the criminal and corrupt conduct of judges and magistrates which CJ Bathurst conveniently overlooks completely.
From my reading of his speech his solution is for lawyers to hit the propaganda trail and get out there and start preaching.
CJ Bathurst said in relation to Australia “Only 35 per cent of us have confidence in our criminal justice system”.
His speech to a large degree dealt with juries and the benefits of having juries. But he made a number of statements that dealt with the broader issue of the publics confidence in the judicial system which is what I will focus on.
Below are some extracts from his speech which are in Italic and with their page numbering from his speech and with my comments below. (Click here to read the full speech) (It is 20 pages but uses a very large font so is a quick read).
COMMUNITY PARTICIPATION IN CRIMINAL JUSTICE
OPENING OF LAW TERM DINNER 2012
LAW SOCIETY OF NEW SOUTH WALES
ADDRESS BY THE HONOURABLE T F BATHURST
CHIEF JUSTICE OF NEW SOUTH WALES
SYDNEY, 30 JANUARY 2012
Page 3
“Members of the lay community participate in criminal justice as a matter of course: as witnesses, complainants, accused and remanded. But in these roles they act as individuals. Their experiences and actions are not reflections of the collective social consciousness. When I speak of the community as a participant in the criminal justice system, therefore, I am referring to two roles in particular. First, to the active role of the jury – to assemble as a tribunal of 12 and pronounce judgment as a unanimous or near unanimous whole, on an individual accused of breaching our legal codes. Second, I refer to the passive role the community plays as an observer of the legal system, whose trust is essential to its legitimacy.”
“My concern is that the criminal justice system is currently experiencing a crisis of confidence. Community trust in the criminal justice system is eroding. Much of this distrust is fuelled by misinformation that is propagated by sections of the media who prefer to inflame rather than inform, and by politics that encourages fear mongering rather than educated debate.”
Well we can blame the politicians, the media and everyone else (which I quite often do), but the bottom line is if you are looking for someone to blame it is ultimately the judges and magistrates themselves. Too many are corrupt and there are plenty of examples on this site of that with many more to come.
Page 4
“In an international survey of public confidence in national criminal justice systems, Australia ranked 27th… of 36 countries. Only 35 per cent of us have confidence in our criminal justice system. And while nearly three quarters of us trust in the police, less than one third trust in the courts. Our confidence has also steadily declined over the last 15 years.”
“We are not alone in these low numbers. The people of Estonia, Croatia, Russia and Slovakia all report a similar lack of confidence in their criminal justice systems. However in the jurisdictions we are used to being compared with, such as the United Kingdom, Canada and Ireland, public confidence is much higher. At least 50 per cent of people in those countries have a high level of trust in their criminal justice systems. It may provide some consolation, if not a great deal, that we at least outrank the United States.”
That’s right we are right down there with the likes Russia and Croatia. But hey, we do outrank the US, how good is that. Not very good at all really. Who can forget the “kickback scandal involving two elected judges who essentially jailed kids for cash. Many of the children had appeared before judges without a lawyer” in 2009. Former Luzerne County Senior Judge Michael Conahan and Luzerne County President Judge Mark Ciavarella “secretly received more than $2.6 million, prosecutors said” They both pleaded guilty. (Click here to read the full story)
Then there is the classic story of the US judge, former Oklahoma district judge Donald Thompson, that in 2006 received four years jail for exposing himself in court while on the bench. This is what it says on the USA Today site “A former judge convicted of exposing himself while presiding over jury trials by using a sexual device under his robe was sentenced Friday to four years in prison” (Click here to read the full story) So I would not be bragging about a better rating than the US.
In the US there is an organisation called Judicial Watch which has the motto “Because no one is above the law” that is dedicated at least in part to exposing and bringing to account corrupt judges. “Judicial Watch seeks to ensure high ethical standards in the judiciary through monitoring activities and the use of the judicial ethics process to hold judges to account.” (Click here to read more)
Page 5
“Surveys show that most people in New South Wales trust that the rights of the accused are respected, that the accused are treated fairly, and that we effectively bring wrongdoers to justice. Why then is there so little confidence in the criminal justice system as a whole? It is because of a misguided perception that the legal community is soft on crime and out of touch with community expectations.” (Bold added in the speech by CJ Bathurst)
What rot, blaming the publics perception on the soft on crime issue and judges being out of touch would only be a minor issue. It is the clear and blatant corruption in the courts that is the main reason people have no confidence in the courts.
Page 8
“Therefore, public confidence in our courts and criminal justice system is not only necessary to the maintenance of the rule of law, but to the quality and perception of our governance structures.”
“In the popular consciousness, criminal justice often represents the entire legal system. Faith in it is likely to be determinative of faith in the whole.”
I totally agree with the part “necessary to the maintenance of the rule of law, but to the quality and perception of our governance structures.”
But the next paragraph is wrong, people look at the entire legal system when determining whether or not they have confidence in the courts and criminal justice just happens to fall within that. It is not the other way around as CJ Bathurst suggests.
Page 9
For the majority, at least, increased confidence will come from better information. There is little we can do about talkback radio and tabloid journalists trading on the demand for shock and scandal, but there are things we can do as members of the legal community to improve the public’s knowledge.
“First, we can participate in the debates about crime and sentencing reform that occur at all levels of society.”
“we should not forget that the discussions occurring in classrooms, on editorials and blogs, and even over talkback radio, are just as important in shaping public opinion and confidence in our justice system. Reasonable minds will differ as to the reforms we need, but we will remain true to our profession by participating in these debates and insuring they are kept informed and accurate.”
I am more than happy to debate anyone anytime including Chief Justice Bathurst. I wonder if I will have any takers. The real “shock and scandal” is coming from the courts themselves, not the media.
Page 19
“Many other suggestions of ways to improve the jury process and confidence in the criminal justice system have been made, and should be investigated. I suggest that the proposals most likely to succeed are those that trust in people – in the members of the community and the jury – to be intelligent, diligent and fair. It is our responsibility to improve their chances by enlivening debate, and insuring that the information we distribute is accurate, relevant and accessible. Otherwise, we have little right to expect trust in a system that excludes the voice of the community it is meant to represent and protect.”
That is the problem, the voice of the people is excluded. Can anyone tell me on what basis Chief Justice Bathurst and the rest of the judges in this country were appointed? No. Because it is all done behind closed doors. The vast majority are mates of the governing political party of the day.
And who investigates complaints about judges. With the exception of NSW and now Victoria there is no independent bodies to investigate complaints. It is my understanding in Victoria the complaints are going to be heard behind closed doors which is a joke. And where has the NSW Judicial Commission been with the corrupt deals that NSW Supreme Court has been signing off on between the NSW Crime Commission and criminals. These deals have been found to be illegal. The NSW Judicial Commission should be holding an open and public enquiry which they are not.
Back to former Chief Justice Spigelman, I did a post on him on the 12/3/11 and he announced 6 days later on the 18/3/11 that he would be resigning on the 31th of May 2012. No reason was given.
But if you want a reason read two previous posts, one on Spigelman and one of his dodgy judgements (Click here to read the full post)
And another where the criminal conduct of the registrar’s office is raised where I said in a previous post:
“How the deal generally worked is that the NSW Crime Commission would do deals with the criminals to forfeit some of their proceeds of crime. The deal is meant to go before a Judge at the NSW Supreme Court to approve and make sure it is above-board. But this was being circumvented and it would be signed off by a dodgy Registrar at the court. This is so that a Judge would not have to get their hands dirty as they would be required to give and publish reasons for their decision.”
“One of the things being missed is the role of the courts, the Registrar and the former Chief Justice, James Spigelman. Not only would the NSW Crime Commission have known that having a court registrar sign off on the deals was illegal but Chief Justice Spigelman and the court would have known as well. If the registrar was signing off on the deal he/she would had to have received Chief Justice Spigelman’s approval one would have thought. The other option is that the registrar or registrar’s are corrupt.”
“But given Spigelman’s dodgy history and it would have to be odds on that he was up to his neck in it.” (Click here to read the full post).
I wonder what Linda Murph, CEO & Principal Registrar of the NSW Supreme Court (the lady standing in the photo) has told CJ Bathurst about corruption in the NSW Supreme Court. She obviously knows plenty given that the dodgy deals with the NSW Crime Commission would have been her responsiblity.
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Categories: Chief Justice Jim Spigelman, Chief Justice Tom Bathurst
The major problem with the Jury system is the system, essentially it starts with “the accused is entitled to presumption of innocents” this is after the police have investigated and charged the defendant, the DPS has approved the process then the judge or magistrate decides what the jury can and can`t know regarding the accused and the case. Then if there is a guilty verdict the accused can appeal both sentence and verdict.
What`s the point Juries are irrelevant.
A 2010 UNSW Faculty of Law Report titled: “Civil litigation in New South Wales:Empirical and Analytical Comparison with Germany” by Annette Marfording and Ann Eyland, exposes the many problems with CIVIL Litigation in NSW (which applies to all states). These include lawyers lying to the court, lawyers pleadings being misleading and lawyers draging out court cases for the benefit of their guilty rich clients and so they get paid more.
Pre trial mangement is left to the court registrars who don’t care how long a trial takes.Lawyers also lie to registrars. Paperwork, produced by our lawyers who are paid outrageous amounts for this, in Australian courts is three times as much as in Germany. Judges get paid 3 times as much in NSW as in Germany. In Germany there are only solicitors who go to court, not solicitors AND barristers, as in Australia, who are BOTH paid far more than in Germany.
The end result is Australian court cases take 3 times as long and cost ten times as much as in Germany.
Judge Bathurst would have, no doubt, read this report but would not want to see his wage reduced and disrupt the gold mine our system affords his lawyers friends, so he chooses to ignore it. Nothing has been done to address the numerous problems identified in this report.
I also believe our system favours the very wealthy, as they are the only ones who can afford our horrendously expensive and inefficient legal system. The public sees time and time again people like Alan Bond go before the court and say he “dosent recall” anything and is basically let off with a minor rubuke. He who can afford to pay their lawyer’s outrageous bills wins (see Evan Whittons: “Our Corrupt Legal System- Why Everyone is a Victim [Except Rich Criminals]). I think this is the major reason the public has no confidence in our legal system.
Lawyers do not want to reform our system because they are getting rich as a result of it. Politicians do not want to reform it because most of them are ex-lawyers.
We need to compare like with like. The German legal system is based on a Civil code, whilst Australia has a Common Law grounding. Common Law is adversarial in nature which starts from a position of innocence until proven guilty and the judiciary is expected to be impartial. Civil Law is codified and lets the judges decide what to do with an offender; it is an inquisitorial system that does not assume anything; guilt or innocence, or use juries representative of society. The judiciary are active participants in the investigation of crimes and the interpretation of sentences. Under the Common Law tradition judges are beholden to legal precedent, judicial restraint and proportionality; they are required to follow previous decisions in similar cases, with similar outcomes. Civil Law has no such requirement. Two similar cases can be adjudicated with vastly different outcomes. Which system is more arbitrary? Certainly not Common Law.
Furthermore Australia’s justice system has a separation of powers between the legislature, executive and judiciary. Each serves as a foil to the actions of the others. Without this Australians would not be examining, debating or complaining about the legal system. They would be rioting, demonstrating and taking up arms against a regime that dictated how each member would live, similar to those countries in the Middle East are experiencing now. Enjoy your freedom of speech. The judiciary supplies if for you, defends it and yet are crucified for their efforts.
The abstract to this report states: “The comparative analysis has identified key factors that are conducive to reducing complexity, delay , and litigation costs in New South Wales, and key factors that are conducive to reducing complexity,delay and litigation costs in Germany. The identification of these factors informs recommendations for civil justice reforms in New South Wales that are designed to reduce the time taken for civil
dispute resolution, reduce litigation costs and enhance access to justice. The analysis and the recommendations made may also be of interest and relevance to other Australian jurisdictions”.
Because the systems are different does not mean we cant learn from the German system. A key change that should be made to our system (and this is obvious from the report) is that judges should be made responsible for the amount of time that a trial takes. At the moment this is left in the hands of the parties lawyers and the report identifies that they lie to court registrars (who don’t care how long a case takes) resulting in delays and extra costs in cases and, surprise, surprise, more income for lawyers (p243). I presume lawyers wouldn’t be willing to lie to judges and, in any event, judges are more able to assess if their submissions are valid or only attempts to delay cases and thus bleed the opposing side dry of funds and stamina. German cases take an average of about 11 months compared to 37 months in NSW (p 494) and cost about one tenth of the cost.
To my knowledge nothing has been done to address the recommendations in this report and I would suggest that this is because our lawyers are making too much money from our system and they will “vigorously oppose” (as they love to say) any change. Our judges have come up through the ranks of lawyers and know what a gravy train litigation is and are not going to ruin it for their lawyer mates. In Germany judges graduate from university and don’t have this obvious conflict of interest – this is another obvious change we should be making. There are many recommendations that would vastly improve our hideously unjust system (because it is unaffordable to 95% of the population) that only really benefits lawyers.
It is positive the new NSW Chief Justice says that trial by jury be retained, but our judicial officers seem generally blind-by-choice to the notion that the corruption of the justice system is systemic and lies in the adversary system. Much has been written on this system in Australia which condemns it. A system not designed to find the truth cannot but deliver systemic abuse of litigants and accused. We look in vain for a single judicial officer to take up this cause. Any why should they?
Lawyers they were when they profitted from it and lawyers they remain albeit in coloured robes. A trong system of investigative justice, trained judges and magistrates and active juries – is the ‘reform’ needed.
Are we all equal before the law – that is I’m not a jurist nor a politician just an ordinary citizen
Do I have equal rights with jurists and politicians
Warwick Hughes has a post on his website
http://www.warwickhughes.com/blog/?p=1336 about the Heiner Affair:
Piers Akerman has just written an article reviewing the 22 year old Heiner Affair which originated when documents relating to child abuse were shredded by the Goss Queensland Labor Govt in 1990. The documents related to an inquiry into the former John Oxley Youth Detention Centre headed by former magistrate Noel Heiner in 1989. One of the victims who was pack raped while in Qld Govt care was recently paid $120,000 and is said to be travelling to Canberra to make her case known.
As Piers Akerman explains – a 2,800 page audit document pulling together the whole saga and composed by Sydney QC David Rofe was emailed to all Senators on Australia day last month. Some leading figures in powerful positions now are involved.
The Parliamentary Standing Committee on Legal and Constitutional Affairs in 2004 posted documents on the subject – look for Volume 2. That committee no longer exists.
Anybody concerned could write to their Senators and ask what they intend doing.
I’ve written a comment there:
Warwick thank you for posting on this sad matter
In my view members of the executive are not above the law
The most informative site on this affair is the Heiner website http://www.heineraffair.info/
Start with the categories on the left hand side – the first category is ‘what is heiner about’
Chris Barrett writing in the Brisbane Times in April 2009 puts the history succinctly
The Heiner affair is the long-running controversy surrounding the Goss cabinet’s 1990 shredding of documents relating to child abuse – including the rape of a 14-year-old Aboriginal girl – after it aborted an inquiry into the former John Oxley Youth Detention Centre.
The documents had been compiled during an inquiry headed by former magistrate Noel Heiner that was set up in the final days of the Queensland Cooper conservative government in 1989.
The complaint to the Parliamentary Crime and Misconduct Committee (PCMC) was lodged by former union official Kevin Lindeberg in February 2008 and concerned the handling of the Heiner affair by the main corruption watchdog, the Crime and Misconduct Commission (CMC) and its predecessor body, the Criminal Justice Commission (CJC).
Attached to the application for review was a nine-volume audit produced by Sydney QC David Rofe that contains details of 68 alleged prima facie charges that he believes could be brought against public officials past and present.
They include Prime Minister Kevin Rudd – Mr Goss’s former chief-of-staff – the Governor-General Quentin Bryce, who took no action after requesting and receiving a report on the affair from then Premier Peter Beattie in 2003, and six serving Queensland judicial officers.
The review application to the PCMC also included a statement of concern sent to Mr Beattie in 2007 from legal heavyweights, including the former Chief Justice of Western Australia David Malcolm.
The former Chief Justice of Australia, the late Sir Harry Gibbs, had previously aired his concerns at the destruction of documents.
Most recently, Premier Anna Bligh received a letter from Buckingham Palace, dated November 26, 2008, noting the Queen’s request for “consideration” to be given to matters raised in letters to Her Majesty by Mr Lindeberg.
Warwick in his post refers to the 2,800 page document e mailed to Senators last weekend; I suspect this is the nine volume audit by Rofe QC referred to in the article above; I’ve written to Senator Boyce this week asking her for a copy of this document but no reply as yet
What’s at stake? As the article What’s the Heiner Affair About puts it:
the right to a fair trial without wilful interference by the State in the administration of justice in the form of destroying known relevant evidence held in its possession and control and known to be accessible pursuant to the rules of the Supreme Court of Queensland in discovery upon the commencement of judicial proceedings;
• equality before the law;
• the upholding of Parliamentary propriety and the doctrine of the separation of powers;
• the State not engaging in covering up crime, going to the offence of criminal paedophilia against a child held in the care and custody of the State;
• the lawful disbursement of public monies not to be used as “hush money” to cover up criminal conduct perpetrated by the State and/or its officials
The next category is Timeline of Events; the documents generated by the Heiner Inquiry and possibly documents from other quarters relevant to allegations concerning the inquiry, the Youth Detention Centre and others involved comprised over 100 hours of taped evidence and other material. This is the evidence which was shredded – the Timeline states that the Gosss cabinet ordered their destruction on 5 March 1990
THE GOSS CABINET, WITH FULL KNOWLEDGE THAT THE HEINER INQUIRY DOCUMENTS ARE REQUIRED BY MR COYNE (AND THE QTU AND QPOA) AND WHILE IN POSSESSION OF MR COYNE’S SOLICITORS NOTICE OF IMPENDING COURT PROCEEDINGS AGAINST THE CROWN IN WHICH THE DOCUMENTS ARE CRITICALLY RELEVANT EVIDENCE, ORDER THE DESTRUCTION OF THE MATERIAL TO STOP ITS USE IN LITIGATION. JUST PRIOR TO THE DECISION CABINET IS INFORMED THAT A SOLICITOR IS SEEKING PRODUCTION OF THE MATERIAL
At that time Kevin Rudd was chief of staff to the Qld Premier Goss
On 23 March 1990 the documents were destroyed
That time line was prepared using the source documents on http://www.gwb.com.au/gwb/news/goss/
As to the time line on the inquiries there was an initial inquiry by the Queensland Parliamentary Crime and Misconduct Committee and since then things have moved to the Federal arena.
Piers Ackerman writing on 27/9/2007 see http://www.gwb.com.au/gwb/news/goss/piers01.htm says Labor Senators twice blocked attempts by Queensland National Party Senator Barnaby Joyce to table the full 3000-page nine-volume Rofe report in federal parliament last week
As Piers says in his latest article
Last year the Senate Privileges Committee voted to bury the matter
and an attempt to have the matter debated in the Senate was stopped by the Labor Party and the Greens, with former Family First Senator Steven Fielding voting to stop the matter being raised (in this case he acted against his Party’s Policy.)
It is an important principle in our legal system that all citizens are equal before the law even members of the executive (government) and judges and that is what is at stake here
If you feel the same way please write to your Federal senator and express your concern and please leave a comment at Warwick’s blog and here
We also know Goss is or was a Lawyer. The trouble is our governments are full of Lawyers which leaves a lot to be desired.
It is a reality in this country, rather than a perception, that a person or entity has access to justice according to his/her/its ability to pay.
It is a reality in this country, rather than a perception, that some on the Bench dispense biased justice. Thousands of lives have been broken by the Family Court system alone.
It is a reality that victims of crime are further victimised by the excessive use of suppression orders, especially when the defendant is high profile or can afford expensive legal advice. This in particular, is a cruel injustice, using the privacy of children or elderly and infirm relatives as an excuse to hide the identity or details of a criminal act.
Confidence is eroding in the NSW courts – and that is a good thing. We are not all equal before the courts, the rich get better lawyers and get better results. Judges in NSW are not truly accountable in NSW – the judicial commission only investigates if there is no ground of appeal (fix it yourself at your own cost approach). In NSW you can’t even appeal “perverse” decisions in the civil jurisdiction, based on the Azzopardi v Tasman UEB Industries decision. Watch this clip (cut/paste URL) to understand how broken our court system is down under http://www.youtube.com/watch?v=iHFa30pD3N8
I have been told that fighting a case is costed so that any compensation recieved for damages, is stripped away . However there is one way of exacting retrebution on lawers and solicitors of questionable character. read of http://thadeus-sez.blogspot.com and the last duplicated entries.My advice as well as thad’s. Stay right away from this mob
Before reform on the Legal System can be attempted it is always advisable to identify what is actually wrong with it. Although I have been involved with the system twice and both times I could see that there was something seriously wrong with the system I did not have sufficient knowledge in that area to list those problems, however I did find two people with impeccable reputations who have identified these problems of which I totally agree with.
Firstly Who’s Evan Whitton?
Evan Whitton has been reporting on corruption for more than twenty years. Five times winner of the Walkley Award for National Journalism , in 1967, 1970, 1973, 1974 and 1975. He was named Journalist of the Year in 1983 for for his “courage and innovation” in reporting of the New South Wales Wran Royal Commission, and described the Queenlsand Fitzgerald inquiry as ‘The biggest and most important story I ever worked on; the experience of a career.’
English common law has never been based on truth. On Judge Rothwax’s analysis, it has never been a legitimate legal system. It appears to follow that it is unconscionable to ask citizens to pay legal aid to lawyers for such a system. And further that any trade or profession based, however nominally, on truth, e.g. selling used cars, is sadly but necessarily a higher calling than the law and the judiciary. [The Cartel by Evan Whitton]
“As Professor Alan Dershowitz suggests 99% of accused are guilty. French and German systems convict 95%. Our system convicts fewer than 50% ….” Evan Whitton’s latest book called “Our Corrupt Legal System”
I wonder when some one is going to help me to produce the irrefutable evidence I have compiled exposing how my wife lawyer supported by a Criminal QC tampered and concealed evidence under the Judge’s nose besides that the Judge was a feminist that hated men, husband and fathers in that order. My own lawyers colluded with my own accountants acting in conflict of interests for my wife to take over our family trust worth $3,000,000.00 and the old female give it to them! .. I HAVE ALL THE PROOF – One chance in a million, the subpoena court clerk returned by mistake to my lawyer of all the evidences produced in court and then again by mistake my lawyer’s secretary told me to take it away plus a Pandora box in my lawyer’s office .. and that’s where all the concealed evidence was hidden! I NEED HELP PLEASE
Well this is just about to get a whole lot more interesting with the new appointment of Judge Spigelman to the ABC.
“I wonder what Linda Murph, (sic) CEO & Principal Registrar of the NSW Supreme Court (the lady standing in the photo) has told CJ Bathurst about corruption in the NSW Supreme Court. She obviously knows plenty given that the dodgy deals with the NSW Crime Commission would have been her responsiblity.”
I note that Linda Murphy only became CEO and Principal Registrar of the NSW Supreme Court relatively recently, 2010 or 2011 I believe.