The public knows something is wrong with the common law in England and its former colonies. A 2011 poll found that Australian judges are less trusted than bus drivers, police, hairdressers, and chefs, and a US poll in 2012 found that 92 per cent want change to the civil system, and 41 per cent want fundamental change.

What is justice, anyway? Photo: Herald Sun

Unlike the common law, journalism is a truth-seeking occupation; the basic obligation is to tell the customers what is really going on. Reporters thus have a duty to explore the reality of our adversary system.

Common lawyers, including academics and judges, cannot help. Law schools teach what the common law is, not what ails it or the cure (let alone where it came from or how the other system works).

If veterinary and medical schools operated like that, a lot of cats, dogs and people would be unwell, or worse.

What can help is a comparison between the adversary system and the truth-seeking (inquisitorial) system reformed by Napoleon, which affects twice as many as ours. 

What is justice?

After researching the law for 11 years, Justice Russell Fox concluded that justice means fairness, and fairness and morality require a search for the truth, otherwise the wrong side may win.

Justice Fox also said the public knows that “justice marches with the truth”. That means common lawyers are the only people on the planet who believe you can dispense justice without knowing all the facts.

In the French system:

• Trained judges are in charge of evidence. On a fixed wage, they do not have an incentive to spin the process out. Most hearings take no more than a day or so.

• Evidence is not concealed, and lawyers are not allowed to question witnesses directly lest they pollute the truth with sophistry: trick questions, false arguments, etc.

• The innocent are rarely charged; 95 per cent of guilty defendants are convicted.

In the adversary system:

• Lawyers are in charge of evidence. On $300 plus an hour, they do have an incentive to spin the process out; the record is 117 years. Lawyers for white collar criminals – tax evaders, price fixers, inside traders, and so on – can run regulators round the courts for years. Trials can take months.

• Untrained judges have made rules which conceal significant evidence, and lawyers are allowed to use sophistry to make honest witnesses look unreliable.

• At least 1 per cent of people in prison (4 per cent + in the US) are innocent; more than 50 per cent of guilty defendants get off. The conviction rate in India is 16 per cent.

• Civil law is unfair to doctors and people in business and the media. Litigation can be a lottery. 

That scratches the surface, but it is clear that taxpayers who pay the wages of judges, lawyer-politicians, prosecutors, police and so on pay too much for too little justice.

The comparison also tends to confirm the view of Professor Fred Rodell, of Yale law school, that the adversary system is “nothing but a high-class racket”.

However, as things stand, real change is not possible. Lawyer-politicians have been “the dominant influence” in English-speaking legislatures since the middle of the 14th century, and effectively remain an oligarchy. 

It follows that change cannot begin until victims of the system combine to vote the oligarchs out, however sweet they may otherwise be. 

Comments on this post will close at 8pm AEST.

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    • Tubesteak says:

      08:21am | 24/10/12

      “Unlike the common law, journalism is a truth-seeking occupation”

      This is a joke, right? Journalism is now little more than cut-and-paste political propaganda while you push the agenda of your corporate masters.

      Most of you lack the education to be able to understand what you’re writing about and hence we get some garbled simplified version of what your limited intellect think what’s going on.

      Unfortunately, most of your readers lack the intellectual capacity to know what’s going on.

      Most of your article sounded more like anti-intellectualism (“sophistry”?) than any real analysis of the differences between the civil law vs common law

    • Mark says:

      08:47am | 24/10/12

      First thing I picked up on as well. Surely the whole article is sarcastic

    • AdamC says:

      08:55am | 24/10/12

      As a side note, have you ever read media reports about a particular case and then actually gone and read the judgement? I have done this a few times, and usually find that the media reporting wanting in a number of respects. Often, it seems journos lack the time, inclination or ability to properly consider and understand legal or other complex, technical issues.

    • St. Michael says:

      09:01am | 24/10/12

      Had the author of the article stretched his reading to James Brundage, he’d have discovered to his amazement that people have been hating lawyers, no matter what legal system they were under, literally since the days of the Roman Empire when they first arose.

      He’d also have discovered to his amazement that every time some despot or populist-minded flathead decides to abolish lawyers or flatten law down to a simple code, the lawyers are back within a few years.  The reason being that only a despot or egomaniac could think they can create a legal system that covers every eventuality of human behaviour and which can or should survive without lawyers.  The real world, sadly, does not work that way.

    • Black Dynamite says:

      09:45am | 24/10/12

      “journalism is a truth-seeking occupation: the basic obligation is to tell the customers what is really going on - in the lives of B grade celebrities.

      - News.com.au

      BD

    • Mark says:

      10:00am | 24/10/12

      @St Michael- Your first flaw of logic is thinking that man needs laws to prevent or encourage certain behaviour. We all have a moral compass, and this is what stipulates our behaviours, not a rule book, even a religious one.
      The difference is participation rate. Our “democracy” only requires 50% of the voting population. A superior civilisation requires at least 90% of the total population contributing. This, of course, is not ideal for those who currently possess the power, so they promote artificial separation.

    • TheRealDave says:

      10:04am | 24/10/12

      LOL Tubesteak…I only got as far as that line as well!!

      Lawyers and Journo’s….I wouldn’t put them in the same category as politicians….nor used car salespeople, because that would be unfair to used car salespeople….

    • St. Michael says:

      11:02am | 24/10/12

      @ Mark: “Your first flaw of logic is thinking that man needs laws to prevent or encourage certain behaviour.”

      No, your flaw in logic is that you seem to believe that sort of principle hasn’t been tried before.  The French Revolution chopped off as many laws as it did noblemens’ heads; ten years later, the lawyers were back.  It’s been the same pattern throughout Western and Eastern history.

      “We all have a moral compass, and this is what stipulates our behaviours, not a rule book, even a religious one.”

      Show me a Christian community with a population larger than about 20 that runs solely on moral principles.  Even Jesus gave commandments and laws to his disciples to follow.  And even he, going by the Gospels, begged people to settle matters before they went anywhere near a court.  The principal occupation of the priests of his own religion was trying to interpret the laws that had been given to them by Moses.

      Laws are required for the regulation of human affairs, and lawyers are required to help people in arguments over whose interpretation of those laws is right.  Anyone who thinks otherwise has no knowledge of history.

    • Tubesteak says:

      11:52am | 24/10/12

      AdamC
      I’m a lawyer so, yes, I have read a lot of judgements and the reporting on those judgements. The gulf is often so wide that I can’t understand how anyone came to the conclusion that the journalist made.

      Mark
      Your problem is that you think everyone operates to the same moral compasss. I don’t. The only thing stopping me from doing a lot of things is the probability of being caught and punished. If not for that, a lot of “bad” things would happen.

    • John says:

      02:56pm | 24/10/12

      Oh my ears and whiskers!  I picked up on that too.  If there is one thing you will find lurking behind a mediocre journalist it is a frustrated lawyer.  This reminds me of a journalist lecturing our legal professional practice course on lawyers not being truthful and then she showed a video of an interview with a lawyer…..which had been selectively edited to get the “unstrustworthy lawyer” angle right.  Later on I was interviewed on tv on a potential legal issue involving a politician.  It was only a potential issue - but these journos were desperate for me to say the particular politician would be ‘in the gun’.  I could not do so as it would not have been true (as well as defamatory).  I believe this to be the rule, not the exception.  One final example.  I was once involved in a case where the evidence went one way and the media reports the other.  I wondered if any of those reporting had been in court.  None had.

    • Fiddler says:

      08:32am | 24/10/12

      aah, good comments are now open.

      A change from the adversarial court systems we currently have to the inquisitorial system that France, Germany and many other countries currently have would be a welcome step towards common sense and justice.

      We currently use similar systems in coronial matters. Of course the lawyers will fight this tooth and nail because it gives them less power, money and prestige, but stuff them.

      “journalism is a truth-seeking occupation; the basic obligation is to tell the customers what is really going on”

      I lol’ed. I lol’ed hard when I read this.

    • GROBP says:

      08:36am | 24/10/12

      Yep, it’s a disgrace. Major reform is needed.

      Good luck fixing it. Most politicians are lawyers.

      Triple the number of lawyers would reduce costs.

    • PK says:

      08:36am | 24/10/12

      Welcome Back Evan.

      Reading the above makes me realise how much I miss your Rugby commentary from days gone by.Insightful,erudite and entertaining.

      Good stuff.

    • PK says:

      08:36am | 24/10/12

      Welcome Back Evan.

      Reading the above makes me realise how much I miss your Rugby commentary from days gone by.Insightful,erudite and entertaining.

      Good stuff.

    • Dan says:

      09:22am | 24/10/12

      I honestly thought you’d passed to the great newsroom in the sky, Evan. Indeed it is good to have you back. Like PK, I too miss your erudite comments on rugby. Perhaps you could apply your blowtorch to the current rugby administration in this country. It needs it as much as the lawyers do.

    • AdamC says:

      08:36am | 24/10/12

      This article is a little too high-level and, dare I say it, comes across as quite naive. It is certainly the first time I have seen French justice cited as an exemplar of fairness and efficiency. On planet earth, there really is no prospect of Australia ditching the common law system for some kind of fantastical, civil code Eutopia. Reformists like the author should focus on identifying specific areas of improvement, rather than wailing about how the whole system is ‘corrupt’.

      Incidentally, it occurs to me that the common law system is based around the idea of resolving disputes. This is quite reasonable in the case of civil litigants, who go to Court because they are in dispute with each other.  Inquisitorial elements would be more useful in criminal cases, where the issue is not so much the dispute between parties but the alleged conduct of the defendant.

    • Kay says:

      08:38am | 24/10/12

      I graduated from law five years ago.  We studied a comparison of the inquistorial and adversary systems.  We also looked at potential areas of reform, etc.

    • David says:

      08:41am | 24/10/12

      I was extremely surprised to read that “journalism is a truth-seeking occupation; the basic obligation is to tell the customers what is really going on.”  I thought the number one priority of journalism was to sell newspapers (or whatever medium they work for).  Second priority is to promote their agenda.  This is often done by selective reporting of the truth mixed with opinion masquerading as truth.

      How I wish your claim were true, but unfortunately I have learned from long experience to be greatly skeptical.

    • Gino says:

      08:42am | 24/10/12

      Our system of law is not about finding the truth but of applying the law. The law is sacrosanct!

    • Barry McAlister says:

      08:42am | 24/10/12

      Mr Whitton claims….......... journalism is a “truth seeking occupation”, the basic obligation is to tell the customers what is really going on. Reporters have a duty to explore the reality of our adversary system.
      Perhaps Mr Whitton could come out of retirement and help out many of the editors and journalists of today whom appear to have forgotten their ‘basic’ training or are just plain ‘running scared’. He could assist Hedley Thomas in his endeavours.
      This article must embarrass Media CEO’s, editors and many journalists. And let us not forget the legal and Judicial systems.

    • NESLIHAN KUROSAWA says:

      09:02am | 24/10/12

      Hi Evan,
      Our legal system being a little bit corrupt, really? I have always wondered the reasons why innocent people would need top legal representation money could buy in a court of law?  Isn’t our justice system saying “presumed innocent until proven guilty”? Or “presumed guilty until proven innocent”? Does it also mean that when we have top legal representation we can actually walk out as a free man or a woman even though there might be some evidence saying otherwise?  I am guessing that some evidence provided in court may actually get lost in translation and we end up with very altered version of the truth thanks to some evidence provided by other parties in the very last minute and very conveniently so!

      Which ever way we look at this matter, it seems to be a bit disappointing and disheartening that we don’t have any respect and faith left in our justice system. By allowing the alleged guilty parties walking out of the court room with a smile on their faces, are we sending the right message to the community out there? What about all those who can’t afford to buy the best legal representation, are they entitled to the same equal rights to justice?  Whatever happened to the idea of honesty and integrity?

      I was one of those very naive people to actually believe that going to court for any good reason would totally be out of the question.  I was very wrong to think this way in the first place. You can be taken to court for any ridiculous reason such as proving once again that you have been a good mother. While all the drug addicts and single mothers receiving benefits from the government blow their pensions on alcohol and cigarettes. Lets change the rules for a moment and do the right thing for a change simply because it is the right thing to do.  If we can’t trust our justice system any more, then we are totally messed up as a society.  Kind regards.

    • Weary says:

      10:00am | 24/10/12

      In court again trying to argue that you’re a good mother?  That raises more questions that it answers…  Single mothers blow their pensions on drugs? 
      Is that really how our planet looks from your planet?

    • St. Michael says:

      11:13am | 24/10/12

      “By allowing the alleged guilty parties walking out of the court room with a smile on their faces, are we sending the right message to the community out there?”

      “Alleged guilty parties”, as you so ineloquently put it, are often innocent.  I’d say it’s entirely right that an innocent man walks away from a court with a smile on his face.  To do otherwise would not be justice.

      You are basically questioning Bentham’s principle that it’s better that ten guilty men go free than a single innocent man remain behind bars.  It’s an old, cynical, and dreadful attack, because I don’t think you quite realise the implications of your thinking.  Bentham basically argued this principle applied because he, and the legal system, believed all men were basically good and decent.

      If you would overturn that principle, you would presume that all men are guilty of crimes accused against them and that they must prove they did nothing wrong.  That is a horrible point for a society to reach, also known as totalitarianism.

      The comfort to be taken from a court that allows “alleged” guilty men to go free is that you therefore know you have a system that preserves the possibility of innocence even in the face of a fit-up or a political prosecution; that the State cannot reliably use the court as a tool against its own citizens.  That independent judges and juries can and will throw a bar across the ambitions of prosecutors and politicians who would see people charged for purely political reasons.

      “What about all those who can’t afford to buy the best legal representation, are they entitled to the same equal rights to justice?”

      They all have that entitlement.  What you are whinging about here is Legal Aid’s funding, not the structure of the justice system.  It’s perfectly right that people seek out the best legal representation they can afford.  Would you prefer a cut-price cardiothorassic surgeon to perform your heart transplant, or the finest one in the world if you could afford it?

      “Whatever happened to the idea of honesty and integrity?”

      Both remain in spades in both the judiciary and the legal profession at large.  Don’t mistake the thugs they represent for the men themselves.

    • Roll out your Prejudice says:

      09:04am | 24/10/12

      G’day Evan,

      Finally someone has said it,  “We find the legal system guilty, broken, and corrupt”.

      The victims of violent crime are getting many things, justice is not one of them.

      The balance is all wrong, steal from a bank using a gun…15-20 years no parole.
      Bash and violently rape an innocent young woman off the street and leave them broken and scared for life… 2-5 years with parole for a 1st time offence (with good behavior-!!?).  Then out to re-offend.  This is our current broken system.

      A loss of money is treated more severely than a loss of life.  This is why we feel unsafe.  A recent example. From a total of 12 sexual assault offenders released in QLD over a year, all 12 either re-offended or contravened the conditions of their release within 12 months.  Like you have observed the system is broken.  We need a new one.

    • Lie Lover? says:

      09:32am | 24/10/12

      How about white collar crime? Cheat thousands of investors of their nest egg leaving them in poverty seeing some commit suicide because of the stress and get a very short or wholely suspended sentence. Is that justice?
      The whole system is broken. It is now more about how much money the lawyers make. The justice system should be fair, fast and inexpensive and yet it is none of these things. When the average person cannot afford to go to court the system is stuffed. That happened a long time ago.

    • neo says:

      09:59am | 24/10/12

      Good point. Dealing drugs? 15 years. Rape? 10 years.

    • Roll out your Prejudice says:

      11:10am | 24/10/12

      Ah yes white collar crime where the proceeds of crime pay for the defence efforts in order to mitigate and delay any delivery of justice until the subject of interest reaches retirement age and then the courts will take pity on them (old fool).  Who’s the fool?

      Just like efforts to try and keep money from corrupting politics and good government (hello pokie reform) we need to keep money or lack thereof from creating its own miscarriage of justice.

    • 10X says:

      09:22am | 24/10/12

      Magistrate -
      Magi (the older word for a practitioner of magic, to include astrology, alchemy and other forms of esoteric knowledge.)
      Strate - from latin Stratum (One of a number of layers, levels, or divisions in an organized system)

      Judges have a Masonic hammer or gavel which they hit to declare the word of Law. The idea of law comes from the biblical ten stone commandments and so it is said that you “break” the law. Judges always sit on a three tier high platform representing the first three blue degrees of freemasonry.

      That’s also why you get/give someone the “third degree” related to the third degree of Masonry where the initiate is asked a series of probing questions he must answer correctly in order to become a Master Mason.
      Churches and courtrooms look the same today, because when you go into churches you sit out here with the poor folks in the chairs out here in the pews, but you cannot go up onto the lifted higher elevation, you can’t go inside the gate, you can’t go inside the little doors, only the priest can go inside there and officiate for you.

      The altar is always raised at least three tiers, because in Egypt that was the way it was always done relating to their belief.  The altar was always raised so the people could see the representative of God dressed in black. The priest comes out on the altar dressed in black, and he is officiating for you, he is the mediator between you and God. 

      Priests of Saturn wear the robe of black.

      Now it makes more sense why you have to call them “your WORSHIP” and they wear black robes, sitting superior on their thrones up there.

    • Fiddler says:

      10:07am | 24/10/12

      bup-bow - magistrates have been called “your honour” in NSW for the past ten years or so. And as someone who regulalrly attends court I have never once seen a gavel in existence or used, nor are they necessarily “three tiers higher”

      time to refresh the tin-foil on your hat

    • TheRealDave says:

      10:10am | 24/10/12

      John, are you posting under another name?? Did the CIA find you?

      Hmmm…that sounds like a helicopter coming…..

    • St. Michael says:

      10:56am | 24/10/12

      10X, a little etymology for you—

      The word “magistrate” actually derives from the Latin word “magistratus”, which derives from “magister” (master), and which has the root “magnus” (great).  It was a Roman civil servant’s position.  Medieval law adopted the word because medieval law derived in part from what was left of the Roman civil law in Western Europe after the fall of Rome in 476 AD.

      “Magi” derives from the word the Latin language used to describe Zoroastrians from about the fourth century BC.  Herodotus used the phrase to describe an ethnic sect, not a pack of sorcerers.  It has no more connection with magistrate than the word dog does with dogma.

    • 10X says:

      12:28pm | 24/10/12

      The most important Roman priests were called pontiffs and flamens. The pontiffs enjoyed great privileges and were generally men of rank. These Roman PRIESTS were also extremely powerful. There were four great religious corporations of Roman priests who were members of a Collegium. A collegium was a board of MAGISTRATES/PRIESTS.

      The term you refer to “magistratus” comes from the greek “archon” and the gnostics believed in 7 archons (High court is composed of seven justices…As did many of the other early mystic traditions such as babylonian etc etc the list goes on…..oooh coincidence I guess).  The highest ranking Archon was represented by SATURN. The outermost who created the six others, and therefore the chief ruler and Demiurge par excellence.  (one CHIEF justice, and 6 others…coincidence again I guess?)

      And wow you really got me there, because the Romans didnt have pagan worship at all…(sarcasm)

    • K2 says:

      12:53pm | 24/10/12

      @Fiddler & TRD Ad hominem - nothing refuted with your personal attack there.  And Fiddler what you just said is they aren’t called ‘your worship’ any more, in one state…hardly poitns to the contrary.

      @St. Michael sounds like a straw man argument to me, you can’t refute his claim by comparing a greek word to a latin word, the structure of the language isnt even similar, latin uses prefix and suffix around a root word, greek does not.  This doesnt at all refute his point and if you look up the word “magistrate rome” you will see the highest magistrate was called also the chief priest.  So you kind of shot yourself in the foot with that one.

    • CK says:

      12:59pm | 24/10/12

      @St Michael - Bahaha says St Michael, a reference to the name of an Archangel also known as an Archon. Dude, you sure do love a bit of hypocricy.

    • St. Michael says:

      01:00pm | 24/10/12

      @ 10X: Too bad the Romans didn’t actually believe in the Secret Magic Men that you seem to be suggesting.  They actually believed excessive devotion and enthusiasm in religious observance were looked down upon: the word they had for it was “superstitio”—“doing more than is necessary”, and, guess what, the root of our present word “superstition”.  It was an abuse of “religio”, a desire for too much knowledge.  Roman religions were pluralistic, in that until Christianity was popularised more or less anything went, but Roman pontiffs were not the Magic Men you’re suggesting they are.  Roman society was entirely against that sort of nonsense.

      In the Graeco-Roman world, practitioners of magic were known as magi (singular magus), a “foreign” title of Persian priests. Apuleius, defending himself against accusations of casting magic spells, defined the magician as “in popular tradition (more vulgari) ... someone who, because of his community of speech with the immortal gods, has an incredible power of spells (vi cantaminum) for everything he wishes to.” Pliny the Elder offers a thoroughly skeptical “History of magical arts” from their supposed Persian origins to Nero’s vast and futile expenditure on research into magical practices in an attempt to control the gods.  Philostratus takes pains to point out that the celebrated Apollonius of Tyana was definitely not a magus, “despite his special knowledge of the future, his miraculous cures, and his ability to vanish into thin air.”

    • St. Michael says:

      01:16pm | 24/10/12

      @ K2: I can’t work out what 10X’s claim actually is.  It appears to be garden-variety Masonic-lodge-doomsday-cult conspiracy theory, but I could be wrong.  I’m merely pointing out his etymology is incorrect, which it is.

    • St. Michael says:

      01:29pm | 24/10/12

      @ CK: It beats having a handle which are the first and last letters of the four-letter slang term describing a bodily part you appear to have growing from the centre of your forehead.

    • 10X says:

      01:31pm | 24/10/12

      @ St. Michael - you are now rewriting history sir.  How then do you explain Juno, Mars, Minerva, Venus, Diana, Vesta, Ceres and the rest of their mythology, how also do you explain why priestly literature was one of the earliest written forms of Latin prose?
      The books (libri) and commentaries (commentarii) of the College of Pontiffs and of the augurs contained religious procedures, prayers, and rulings and opinions on points of religious law.

    • St. Michael says:

      01:47pm | 24/10/12

      @ 10X: “The books (libri) and commentaries (commentarii) of the College of Pontiffs and of the augurs contained religious procedures, prayers, and rulings and opinions on points of religious law.”

      Precisely.  *Religious* law.  Not magic, which is what the Magi were about and what the Freemason cult draws on for its inspiration, which is where you started and which you’ve curiously abandoned.

      Religious law split off from civil law around the twelfth century or so.  Unless you’d like to present me with a recent Australian case in which an Australian magistrate made orders binding Catholic or Anglican Church pursuant to canon law recently.  Modern law has nothing to do with the weird Zoroastrian shit you seem to be smoking.  Get that through your skull and stop wasting everyone’s time.

    • K2 says:

      01:54pm | 24/10/12

      Terminology like “garden-variety Masonic-lodge-doomsday-cult conspiracy” just shows you are completely unprepared to look at something with an unbias angle because it challenges your current perception, or perhaps your indoctrination.  Also this kind of makes the points seem silly by comparing them to something most people associate as loopy, its a pretty rough tactic to use in an argument, it goes to psychological attack in fact.  I see this often on the punch forum and You sound smart enough to refute points without having resort to these tactics in arguments from other comments of yours that I have read. 

      I’d love to see less personal attack, I don’t see anywhere where he said anything about anyone elses person or belief system…

      As for etymology I want to agree with you, but there are two ways to interpret words one way is called ‘green language’ also called ‘language of the birds’ the other is more literal.  From which you will often get several meanings or ‘sigilised’ words running parallel to the literal meaning. That is to say the literal meaning can still apply and also the green language meaning at the same time.

      I would like an answer as to why they are called “your worship” it does seem to point to a ‘priestly’ demeanor it makes no sense in a legal setting that is supposed to have seperation of religion/church and state.  Also, why do they wear a black robe?  Two pretty interesting points that I still dont have answers to.

      Lastly, my understanding was that law came from admiralty law and alot of the gates and sitting up higher had something or other to do with that antiquity from admiralty law…I could be wrong..its been known to happen.

    • St. Michael says:

      02:31pm | 24/10/12

      Let’s leave aside the conspiracy theory: suffice to say I’ve done enough investigation with an open mind to come to the views I have.

      (1) “Your Worship” does not have a religious connotation in the judicial setting.  The word comes from the Old English “worthscipe”, meaning “worthiness”, or “worth-ship”.  It means to give worth to something.  That is, you give special worth or esteem to a judicial figure by dint of his training, his authority, and his intellect, and, necessarily, his judgment.  Similar applies to “Your Honour”—you honour that person.  It’s a holdover from the medieval period.  Most courts have gotten rid of it in favour of ‘Your Honour’ simply because idiots would keep “honouring magistrates, and worshippng judges,” so to speak.

      (2) The judiciary wearing black is also rather boring in origin: in 1694, all the judges of England wore black robes to the funeral of Queen Mary.  They were in mourning.  The official period of mourning, however, lasted for many years and eventually they just kept wearing the same robes.  It has nothing to do with the Church Of The Latter Day Saturns.  It is just an event that became a tradition.

      You can find a similar tradition in (tangentially) why men are “supposed to” (and in all fashion always do) wear the last button of their jackets undone.  It, too, comes from a mundane event that just morphed into tradition: a medieval king once got so fat that he couldn’t sit down at table without undoing the bottom button of his vest, so the rest of his court copied him to save themselves (and him) embarrassment (and possibly to keep from getting their heads chopped off for bringing attention to the King’s massive gut.)

      The tradition continues to this day: check out any fashion shoot or male movie star wearing a jacket, and you will always find the bottom button undone.  The rule goes, for jackets: “Middle button, always; top button, sometimes; bottom button, never.”

      I don’t know whether the elevation of the bench has anything to do with Admiralty Law as such, but I’ll look into it.

    • 10X says:

      02:35pm | 24/10/12

      No masons are not about magic not even slightly.  Magi does not ever refer to magic as in hokus pokus abrahadbra…the magi were considered the wise men much like many ancient societies considered witch doctors their wise men and them to be using magic even tho now we know they just had esoteric knowledge of plants and herbs and poisons etc.
      The definition of magi says magician, not me, along with other names it associates to it.  The point being that all of the pomp and ritual of the court comes from antiquity, and is currently irrelevant in todays society.

    • St. Michael says:

      02:45pm | 24/10/12

      @ 10X: “The point being that all of the pomp and ritual of the court comes from antiquity, and is currently irrelevant in todays society.”

      Wrong again.  There are potent psychological reasons for much of that ‘pomp and ritual’, all of which are quite common sense once you know the rationale for them.  And they have nothing to do with the Masons, magicians, or Queen Mary for that matter.

    • 10X says:

      03:33pm | 24/10/12

      >>Wrong again.  There are potent psychological reasons for much of that ‘pomp and ritual’, all of which are quite common sense once you know the rationale for them.  And they have nothing to do with the Masons, magicians, or Queen Mary for that matter.

      In my opinion there is no rationale for psychological manipulation. If something is supposed to be that way its understood by all to be that way and doesnt need to use any form of mind compliance to get its point across.  Calling someone your worship or your honor instantly places them superior, but youre assuming that they are superior probably from your education in law, and then this is the problem.  They are man or woman just like the rest of us, they are not immune to corruption, nor are they infallible, yet the system must manipulate all into believing it is infallible through subversive use of psychologocial tactic instead of just being that way cos its not possible to be that way cos its run by humans which are by nature susceptible to corruption and creatures that like to abuse power especially in power structures where that power is over other humans.  Also how do you know the same pomp and ritual has nothing to do with masonic tradition? ever been an entered apprentice?  i have in fact ive been much higher and i know plenty of it is hidden in the pomp and artificery and ceremony

    • St. Michael says:

      03:59pm | 24/10/12

      Clearly the building blocks of grammar and diction are not amongst the Masons’ stock-in-trade.

    • St. Michael says:

      04:29pm | 24/10/12

      “If something is supposed to be that way its understood by all to be that way and doesnt need to use any form of mind compliance to get its point across.”

      LOL.  Clearly you’ve never been in a criminal court.

      Let’s mention some of the reasoning behind some of the practices.

      (1) Ever wondered why a witness is in a box, why we don’t simply talk to them in a coffee lounge or somewhere? For this reason: the measured, aloof environment of a court is designed to provide a baseline of a person’s behaviour.  If someone loses their shit in a refined, calm setting as a court, you can make a pretty good guess about their capacity for control in the wider world.  The box also exists so both a judge and a jury can get a good look at and listen to the witness away from any prompting by “friends”, and have a decent chance at assessing their credibility.

      (2) Ever wonder why lawyers never say “I think” to a judge? That’s a rule of courtesy between the Bench and the Bar.  You never say “I think” as a lawyer, because a prickly judge will pull you up quick smart: “Mr X, your personal views are of no interest to me whatsoever.  You can make submissions on the subject.  I don’t care what you think.  I am here to find facts and interpret and apply laws.”  All of it is designed to preserve cool, objective courtesy between judges and the lawyers who appear before them.  Again, that’s because it’s a lawyer’s job to assist the court, not be a demagogue for his client.  If you read the ethical strictures that lawyers and barristers in particular are bound to, you’ll see more evidence of this.  Those ethical rules and rules of practice evolved over a good four hundred years of seeing what happened when they weren’t observed.

      (3) Ever wondered why, in some of the older courts, you have the judge at the highest elevation in the room and the accused second-highest? Because it’s meant to reinforce that the trial is all about the accused.  It’s meant to reinforce to judge, jury, counsel, and witnesses that they hold a person’s life in their hands.  As for why the judge has the highest elevation: firstly, security.  It’s more difficult to throw glasses and lecterns uphill with accuracy.  It’s also harder to get to the judge if, as a stupid litigant, you decide you want to punch him.  It’s also to re-emphasise that like it or not, he is the authority figure in the room and he commands your respect as well as the rest of the room.

      (4) Ever wonder why judges (some, anyway) still wear wigs and robes? Anonymity.  You see the position and not the person.  I can personally attest to this: I have appeared before judges on several occasions and then walked straight past them in the street when they’re in “civvies”, failing to recognise them—the protection offered by the regalia is substantial.  It is also to emphasise they are a figure of authority and to be obeyed.

    • 10X says:

      04:36pm | 24/10/12

      Clearly the building blocks of grammar and diction are not amongst the Masons’ stock-in-trade.

      To the contrary. word play and allegory are precisely their building blocks.

      Intolerance is evidence of impotence.

    • ibast says:

      09:46am | 24/10/12

      “The innocent are rarely charged; 95 per cent of guilty defendants are convicted.”

      Or alternatively a lot of innocent people are being convicted.  Actually, the more I think about it the more this statistic scares me.

      I also believe in the French system, you are guilty until proven innocent?

      Scary stuff, when your freedom comes down to a mid-level public servant.

      Also, you start off by talking about common law, then compare two systems of criminal law.

      And the comparison to journalism, must be some kind of joke.  The great unwashed has a problem with judges, not because they are across the facts, but because of poor and sensationalist journalism.  Where journalism to reals all the facts about these supposedly controversial sentencing decision, many would have less problem with that decision.

      I’m not saying our system doesn’t need some reform, just there are some holes in your argument.

    • Fiddler says:

      10:05am | 24/10/12

      no, in the French system you are not guilty until proven innocent. They simply ask the defendant “these are the allegations, what do you have to say about that” then examining all the evidence as opposed to our current system which is generally about the defence attempting to exclude as much evidence as possible to generate a reasonable doubt.

    • gnome says:

      09:48am | 24/10/12

      There’s so much wrong with our legal system it’s ludicrous!

      Remember when we had a law reform commission- a judicial job for Michael Kirby- a job on the high court on the strength of it and a huge pension for life afterwards.  And success in the courts still goes to the highest bidder.

      Heartening though, to hear about the Australian lawyer being held in Mongolia.  Can we send them a few boatloads more?  They need them a lot more than we do.  (Yes- I know- perhaps a boat to the nearest port and then make them walk the rest of the way)

    • St. Michael says:

      11:15am | 24/10/12

      Too bad that lawyer has actually been held because she exposed local corruption amongst Mongolian officials.  Did you want to send a few more honest lawyers into prison?

    • Adhom says:

      01:12pm | 24/10/12

      Can we start with sending you there St Michael?
      Sound pretty lawyerish to me.

    • St. Michael says:

      01:32pm | 24/10/12

      Not my problem if you can’t handle the truth or both sides of the story, Adhom.  You’re just another grizzling whinger who doesn’t like lawyers as far as I’m concerned, of whom there have been many sharing your low IQ throughout history.

    • gnome says:

      01:34pm | 24/10/12

      You’re kidding St M.  We need to send lawyers to Mongolia to expose corruption?

      My attitude hardened even more when I heard she was Rio Tinto associated.  Remember Stern Hu, the “Australian” Rio Tinto executive who hadn’t even fulfilled the basic requirement for Australian citizenship, of two years residency in Australia?

      Anyway, who said anything about honest lawyers? That’s an oxymoron (criminal lawyers is tautolgy) .  Who said anything about sending them to prison?  Just sending them would be a good enough start.

      But there might be a small misunderstanding- when I wrote “the nearest port” I meant the nearest to here, not to their destination.  There would be a million or more good folk in this country who would be delighted to herd a gaggle of learned brethren overland to Mongolia with cattle prods.

    • neo says:

      09:55am | 24/10/12

      Having worked as a Solicitor in the past, I can assure you, it is one of the worst professions in Australia. Focus is on drawing things out for as long as you can and taking as much money from clients as possible, while results are secondary.

    • St. Michael says:

      11:15am | 24/10/12

      If you did that, neo, then you broke at least five or six ethical rules of the profession, and you’re rightly no longer a solicitor.

    • Tubesteak says:

      02:55pm | 24/10/12

      You had clients willing to pay you for this?
      I wish I could do that. I have to do things in as little time possible or the client walks down the road to someone who will do it for less.
      Means something that takes me 1 hour only gets billed for 30 minutes and I get a kick up the backside because there was 30 minutes “lost” time.

      Unfortunately, doesn’t look like I’m qualified to do anything on miningjobs.com.au

    • maria says:

      09:57am | 24/10/12

      Democracy, you either hate it or loath it.
      Abraham Lincoln
      “Government by the people, of the people, for the people.”
      In Australia;
      “Government by the mob, of the mob, for the mob.”

      I n one word Australia is a “MAFIACRACY.” Government by a few, especially by a small faction of persons or families.

      OLIGARCHY is a form of power, governmental or operational, where such power effectively rests with a small, elite group of inside individuals, sometimes from a small group of educational institutions, or influential economic entities or devices, such as banks, commercial entities, lobbyists that act in complicity with, or at the whim of the oligarchy, often with little or no regard for constitutionally protected PREROGATIVE.

      Democracy might be a horrible system FOR SOME, but it’s better than anything else (except a WORKING communism, which really would only work if everyone was on marijuana).

      Popular Sovereignty or democracy a la Switzerland is the only answer. This is the heart of democracy, meaning the people are supreme, not a king, not a leader, nor a clique of despots, but the people. Popular sovereignty give voters the right to keep their officials in office or to vote them out. Balloting is free, secret and the privacy of every voter is assured. Officials in a democracy are responsible to the people.

      Government in Switzerland is not delivering for people, but with them.

      Where the bloody hell are the people after each election in our so-called democracy?

    • Louise says:

      10:23am | 24/10/12

      I’m no expert on the French legal system, but I like this article a lot.  Our adversarial system often seems to come down to expensive, sophisticated game-playing. I’ve often thought an inquisitorial system, dispensing with the tricky evidence rules, would be better suited to handle criminal cases.

      I think the author’s right that journalism is (meant to be) a truth-seeking occupation.  And there are certainly good examples of journalists who live up to that - in Queensland, Hedley Thomas springs to mind.

      I’m interested to get a copy of the author’s book. (Shame it’s not called “Fifty Shades of Corruption…”, or I might’ve been able to borrow one from someone on the train.)

    • Tim says:

      10:24am | 24/10/12

      I too learnt about different systems in my law degree issues for reform.  To say that law schools do not teach the origins of the common law system is complete nonsense - it’s one of the first areas of study.

      I welcome debate about reform our system, but this article makes a lot of blanket assertions that are competely untrue.  Most people’s view of the legal system comes from tabloid reports that are designed to whip up anger and controversy.  There have been numerous studies into attitudes of people towards the system once they have actually witnessed a criminal trial, and most feel that the process and the sentence was right for the crime.

      Has the author even spoken to anyone in the system or observed a court hearing? He certainly hasn’t asked basic questions about what is actually taught in law schools or how law is actually practised.

    • Gordon says:

      12:44pm | 24/10/12

      Evan Whitton has been on about this for decades, so I imagine he has seen plenty of court activities. He feels that all trials should be like mini-royal commisions: a judge actively investigating to find “the truth”, instead of lawyers presenting (and trying to keep out) evidence. I’m sure both systems have their benefits and problems.

    • Gordon says:

      10:42am | 24/10/12

      Unsurprisingly,  judges are less trusted than bus drivers because bus drivers don’t have journalists (truth seeking, my arse) second-guessing their work, sensationalising complex matters into shock -horror headlines.

    • the moor says:

      11:30am | 24/10/12

      When the law no longer delivers justice we do have a problem and unfortunately that is exactly where we are.  Most in Australia can’t afford to use the legal system because the cost is too great thanks to the most ruthless union there is in Australia - the lawyers.  The second problem is that too often the decisions are based on technicalities rather than common sense.  An example of the latter is the WA the state government abandoned a damages claim against Apache Energy because of semantics.  That meant a gas supply problem which cost WA an estimated $2.5 billion has been unable to be redressed.

      The law in this country needs a serious review so it goes back to serving the interests of the people instead of being a mechanism to make lawyers very wealthy and allow those who can afford them to avoid their legal obligations.

    • St. Michael says:

      11:46am | 24/10/12

      Define “justice” for me, moor.  And once you’ve done that, get around to similar intractable problems as eliminating “poverty”, “disadvantage”, and “discrimination” from society.

    • the moor says:

      11:53am | 24/10/12

      For those interested the legal action was dropped because in a variation to the Petroleum Pipelines Act 1992, the term “pipeworks” was used instead of “pipeline”.  To this day The Law Society have failed to comment on whether this was a morally just decision.

    • St. Michael says:

      12:40pm | 24/10/12

      Given the Law Society is conerned with law, not with religion, I’d be surprised if they had any right to say one way or the other whether it was morally just.

      Once again: define justice for me.  You’ll find it means very different things to very different people.

    • K2 says:

      01:20pm | 24/10/12

      @St Michael Given the Law Society is conerned with law, not with religion, I’d be surprised if they had any right to say one way or the other whether it was morally just. - religion and morality have nothing to do with each other…this point leads nowhere.

      Justice - the exercise of authority in vindication of right by assigning reward or punishment

    • St. Michael says:

      01:37pm | 24/10/12

      @ K2: Now define “right” for me, mate.

    • St. Michael says:

      01:39pm | 24/10/12

      P.S.: And while you’re at it, K2, define “authority” for me, knowing that authority which is misused or proclaimed authority without substance is often challenged - by lawyers.

    • K2 says:

      02:21pm | 24/10/12

      Authority - root word author - meaning “written” into existence.
      Authority often refers to power vested in an individual or organization by the state, in this case we are talking about the legal system as ‘the authority’ I assume.  “Authority” theoretically, can be given to anyone, all you have to do is author that ‘right to have power’ into existence - whether it is then recognised by anyone is another matter. I suppose if you wanted to really knuckle it down you could add recognised by a majority of the community, but that still is quite abstract.
      Right - its a bit harder to put succinctly, but there is a reason there are several definitions and applications to the word.  Right meaning correct, also meaning morally good, justified or acceptable, restore to an upright position (as in a boat)...however they all have the same ideal reflected even though they put the word into different context.  If you’re talking about legal definition thats probably different again. ..
      Natural law and natural rights follow from the nature of man and the world. We have the right to defend ourselves and our property, because of the kind of animals that we are. True law derives from this right, not from the arbitrary power of the omnipotent state.
      I suggest the ideal of natural rights is where the precept of ‘right’ has come from. I could paste a bunch of stuff, but instead I will point you to Locke, Rousseau, Jefferson, Adams, and Paine..

      Natural law has objective, external existence. It follows from the ESS (evolutionary stable strategy) for the use of force that is natural for humans and similar animals. The ability to make moral judgments, the capacity to know good and evil, has immediate evolutionary benefits
      just as the capacity to perceive three dimensionally tells me when I am standing on the edge of a cliff, so the capacity to know good and evil tells me if my companions are liable to cut my throat. It evolved in the same way, for the same straightforward and uncomplicated reasons, as our ability to throw rocks accurately.

      This is why judges will ‘judge’ that a ‘reasonable’ man/woman would know right from wrong, its considered innate to some degree.

      Not sure if that answered you but its not exactly a ‘black and white’ answer…

    • St. Michael says:

      02:33pm | 24/10/12

      “Not sure if that answered you but its not exactly a ‘black and white’ answer…”

      With that answer, you answered me perfectly.  That’s my ultimate point.  It’s never black and white.  Which is why lawyers have to be around; to help people make the best argument possible for why a matter should be determined their way and not the opponent’s.  Even Coronial courts don’t kick out lawyers.  They are there to assist the court.

    • K2 says:

      03:01pm | 24/10/12

      St Michael - I think the problem most people have with lawyers is the perpetual obfuscation of terminology that you literally have to be initiated to understand (by initiated I mean, lengthy education, and then further practical education before you can even practice let alone represent someone in a court).  This serves to do a few things - one, it empowers the lawyer to charge whatever they want because most people simply cant understand the jargon, although granted that this is heavily regulated in Australia (this is not the case everywhere tho).  Also this obfuscation through jargonisation alienates most people, and in some cases they are literally putting their life in the hands of a lawyer who may, or may not, be completely inept - you just have no way of knowing because its not easy to understand for the ‘lay person’.

      This jargonisation also leads to plenty of shisters that deliberately obfuscate in order to manipulate, embezel, or confuse in a manner that entraps one party and alleviates another.

      The system seems to be set up in a way that lawyers are needed as interpreters, which seems to most people a difficult thing to swallow.  I have to admit that I know a few lawyers and they are good people, with good intentions, but to say all of them are would be unreasonable (much like any business I suppose there are charlatans)  Law has been made too complex a thing for the un-initiated to follow and this is usually met with attack because people are often quick to attack when they feel humiliated somehow.

      Lawyers are needed.  But is this because of the system, or because they are there as intermediaries and ‘aids’.  They are aids to the court process, but should they ‘theoretically’ be required by a defendant (or prosecutor)?  The system demands them, but in theory as law should meet out justice and uphold morally right principles, then anyone should be able to be in their place.  This is why anyone can actually choose to defend themselves - in anything high profile this would be suicide, because of the system…

    • Rick says:

      11:35am | 24/10/12

      You want know the truth about our corrupted system of justice with all the answers.

      Read this book than we will able to debate.

      “The devil deeds of the ratbag profession”  Brett Dawson

      I bought that book a few years ago $5.

      Can you still find it ????

    • gnome says:

      05:27pm | 24/10/12

      No the lawyers have stolen all the copies in circulation!

    • iansand says:

      12:31pm | 24/10/12

      This would be the inquisitorial system that has just slotted 6 Italian seismologists for 6 1/2 years for not predicting an earthquake.

      Our system is by no means perfect (no system that runs on human beings can be), but as far as I am aware ours has never sunk to that level of lunacy.

    • ibast says:

      01:06pm | 24/10/12

      As an Engineer this does scare me.  Theoretically it can happen in Australia, but I’m not sure it ever has.  The OHS acts have the mechanism in there to do it.

    • gnome says:

      05:32pm | 24/10/12

      They took the big money for being experts- people who took their advice died.  They got found out-  if they hadn’t been such obnoxiuos windbags they wouldn’t have had a worry..

    • DOB says:

      12:55pm | 24/10/12

      Sorry Evan but when I was at law school I was taught the difference between our system and other legal systems. Maybe you just chose the wrong subjects. Secondly, while I - like every other practising lawyer I know - am regularly disgusted by long drawn out litigations and the various tricks we practitioners can use it should be pointed out that “we” - that is lawyers - dont draw out the process. The client calls the shots and makes the decisions. If they want to pay lawyers exorbitant fees to do that then thats their call. If youre worried that regulators often come off second best in these contests and the public purse is jeopardised in those circumstances then consider how much money ASIC (and other regulatory bodies) waste on pointless and hopelessly run cases - and then compare that to how much they save by paying their lawyers peanuts. The governments pay peanuts policy for its lawyers is a false economy - because it usually results in woeful wastes - like the prosection of Andrew Forrest, which is just one of the many stupid botch jobs I can think of involving ASIC. Another is the Westpoint litigation - where the JUDGE had to point out in his judgement - throwing ASIC’s case out - that it would have been a lot simpler if ASIC had brought a claim of operating an unregistered MIS; which every lawyer with a passing knowledge of that matter already knew. And if youre really worried about game playing against regulators the parliament should simply pass rules to cut that out - just as the court rules have been steadily tightened in the 20 years since I first started practising.

      Then theres the overseas systems. Yes, they may be seeking “truth”. But how do we know when thats found? Is anyone really any the clearler as to whether Amanda Knox killed her flatmate in Italy? Not really. And that case has sparked an angst with the civil law system - which apparently produces contradictory results in appeal after appeal, undermining peoples’ confidence in their legal system.

      Our system of law is not perfect. It can be improved greatly. I have no problem with discussing a move to an inquisitorial system. but, please, if were going to have this conversation please keep some of this in perspective and cut out the hyperbole, because - since I am around to raise adversial points - it undermines your case quite easily. And that, my friends, is the truth…

    • Roll out your Prejudice says:

      01:47pm | 24/10/12

      Hi DOB,
      What’s your top 5-10 fixes for the Australian justice system?

    • Michael Jeremiah says:

      01:35pm | 24/10/12

      As I have said in other posts, the issue is victimhood.  The genuine victim is made to feel like a perpetrator while the perpetrator of a crime is able to be painted as a victim by their defence.  The white collar thief simply hides money and assets by putting them in the names of his family members while continuing to benefit from them (a practice which is almost amazingly common among these leeches) and maintains he has nothing to his name and is the victim of a witch-hunt.  Thugs commit acts of assault and are the victims of their own childhood traumas and get anger management and community service (neither of which will do anything for them).  The real victim tends not to be so vocal in telling everyone they are a vicitm - they try to maintain some dignity.  It’s almost like the ridiculous method of school discipline that involves punishing the weakest of the misbehaving students and assuming the rest will just fall into line.  The hardened troublemaker likes that someone else took the fall and just gets worse.  Sociologists, legal professionals on the make, criminals justifying themselves and their actions and the inability of law to keep pace with society’s changes are the big issues.  They say there are no guilty men in prison, but there’s few remorseful ones among them.  Remorse is used as a tool along with casting confusion and creating doubt.  The sooner the system learns to identify, root out and correctly deal with the career criminal the better.

    • ray burnett says:

      01:35pm | 24/10/12

      There are only two things to remember about the llegal system in Australia ...(.number one)  it’s not about justice ,it’s about the law and ( number two) the legal system assumes you are wealthy…it protects the wealthy, powerful and corrupt both in the private community and the Federal and State governments and it’s Bureaucracies..with the advent of the civil liabillities act in NSW in 2002 pushed through parliament while we slept…Justice Nicholson of the federal high court stated that over night approximately 40 % of citizens lost any chance of proper legal redress….the biggest con played out by the last remaining large underwiting insurance company QBE following the failure of HIH…govt ‘s were lobbied and a dishonest media campaign told us that the heads of damage had to be capped to stop the growing amount of spurious claims..in addition to this the civil liability act put the burden on the lawyers saying they had to be certain of winning their cases on behalf of their clients other wise they would be up for the costs….reaction…barristers and lawyers immediately shied away from taking on cases to approximately 40% of our proper contitutional right to seek justice…the biggest con in our legal history…there was not an increase in spurious claims…their have always been spurious claims…which our legal system has always dealt with…where did the civil liability act format come from…read the californian civil liability act and decide for yourself…and remember they have cerain protections under their Biil of Rights…we have none…the closest that we have is the anti discriminatory act..I’m not a lawyer but a plaintiff who has fought a 17 year battle against the crown in NSW as a result of being sold a hidden toxic site ,namely a disused cattle dip,even though i made enquiries with both the EPA and the local council prior to purchase.. the crown and it’s bueauracy the epa the dept of agriculture corruptly with held thios in formation from me…I had no chance of winning in court as if i had won ..i would have set a precedent for the 2000 plus un rememdiated highly toxic cattle dips in northern NSW at an aprroximate clean up cost of $850.000 per site,but even more this would have also set the precedent for the other 60.000 toxic sites in NSW.. the law does not serve the common man..

    • CC says:

      03:46pm | 24/10/12

      I heard something at one point about “invoking common law” , although it was to do with american law, and involved admitting constitution applied (which does not apply in australia) is this possible in australian legal system, and how do we do it and what does it actually mean?
      It went something like this

      1. When the court hearing begins, stand and ask the judge the following question:
      “Your Honor, I request a Judicial Decision” ?
      He or She then grants the request. You then ask:
      “Is the Court in session under Article 3 of the US and State Constitution”?
      He or She must answer the question. If they say No, you are not in a lawfully sanctioned court.
      If they say YES, then you make the following statement if you are the accused:
      “Your Honor, since you have acknowledged that this court is in session as an Article 3 Court, the State can not be the “injured party”
      in the case before the Court under the Rules of Common-Law, and therefore I demand that you immediately dismiss the case and
      report the prosecutor to the State Bar Association for Prosecutorial Misconduct”.

      Only the “injured party” can bring charges against an accused offender. The State cannot be the “injured party” unless the crime was committed directly against the State. Only then, does the State have the ability to “sanction” the accused.

    • St. Michael says:

      04:14pm | 24/10/12

      This is what lawyers call the argument of a “bush lawyer”.  That noise you can hear is the sound of the legal profession collectively rolling its eyes and sighing.

      Common law is that body of laws and traditions handed down to most Commonwealth jurisdictions when they were founded by the British.  It’s not legislation, but more received caselaw, received tradition.  For example, the modern law of negligence rests largely on an old 1800s decision called Donoghue v. Stevenson, from Britain, rather than on a piece of legislation as such.

      Because the British founded their various colonies, they brought British law with them.  And in general, common law is meant to follow the rule of precedent—if the same situation came before the same court some years ago, all things being equal the same decision should be offered.

      Uneducated amateur lawyers extrapolate from this that all kinds of silly, ancient rights still exist when in fact they don’t.  (There was one notable use of this with trial by combat in Scotland in the 1850s or so, but I won’t get into that here.)

      Their problem is that, for the most part, legislation made by a government generally overrides common law unless the legislation specifically provides otherwise.  The problem is that the State has generally passed legislation in such jurisdictions to say that it in fact can sue and be sued, and is the only body that can bring criminal prosecutions.  Legislation trumps common law.

      A bush lawyer trying your argument on in an Australian jurisdiction would probably be met with raised eyebrows from the bench, a quick reference to the applicable section of the legislation in question, and the matter proceeded on with ... or the judge suggesting the bush lawyer go and get some real legal advice because he’s a moron.

      The main thing to remember with cute Internet arguments like this is: SOMEONE HAS PROBABLY TRIED IT BEFORE.  And if they did succeed, it would’ve been the only time that argument succeeded before the government slammed the doors shut with legislation covering that loophole.

    • CC says:

      04:53pm | 24/10/12

      thanks for the clarification, yeah the example there I just did a quick gooble and grabbed it, but it wasnt the exact case I meant but I didn’t think it would apply in Australia good to know.

    • Achmed says:

      04:15pm | 24/10/12

      The law should not be confused with justice.

      People deserve justice but instead they get what the law provides.  They are not the same thing.

    • Achmed says:

      04:18pm | 24/10/12

      99% of lawyers give the rest a bad name

    • Ozziebloke says:

      04:50pm | 24/10/12

      Problems starts with law enforcement. Example: super-intendent books car driver for the use of the mobile phone while driving. Driver has no problem with that, he feels guilty and understands he musn’t do this. At home he discovers that the names are incorrect filled in, among other matters. Super really got a eye-sight problem or cannot work accurately. Drivers requests the infringement notice to be cancelled. Infringement notice gets cancelled, a new one gets issued. Driver discovers another two mistakes. Driver asks himself how super dares to correct driver when he cannot follow any law and regulations himself. Driver rings lawyer, case comes in front of Court and infringement notice gets waived. End of story, everybody waisted their time. NOW imagine yourself that the same accuracy is applied with the Craig Thompson or Dr. Patel case. Trust me, we are up for a lot more improvement than only the Justice system. PS Driver got his own car back from damage repairs and his happy that he can use Bluetooth again. smile

    • Trude Paladin says:

      05:05pm | 24/10/12

      When parents torture their child to death, leaving her with more than 30 fractures and the charges are reduced from murder to neglect, you bet I think there is something wrong with our legal system. When paedophiles are released back into society again and again without any treatment at all because treatment programs are unavailable, you bet I think there is something wrong with our legal system. When my husband tries to murder me and the charges are reduced from attempted murder to domestic disturbance and I am not even allowed a single minute in court, nor are any witnesses called, I KNOW without a doubt that our legal system does not care about justice in cases where nothing of monetary value was lost.

    • rod sexton says:

      05:54pm | 24/10/12

      Journalism is a truth-seeking occupation’ - tongue-in-cheek of course Evan!

 

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The Punch is moving house

The Punch is moving house

Good morning Punchers. After four years of excellent fun and great conversation, this is the final post…

Will Pope Francis have the vision to tackle this?

Will Pope Francis have the vision to tackle this?

I have had some close calls, one that involved what looked to me like an AK47 pointed my way, followed…

Advocating risk management is not “victim blaming”

Advocating risk management is not “victim blaming”

In a world in which there are still people who subscribe to the vile notion that certain victims of sexual…

Nosebleed Section

choice ringside rantings

From: Hasbro, go straight to gaol, do not pass go

Tim says:

They should update other things in the game too. Instead of a get out of jail free card, they should have a Dodgy Lawyer card that not only gets you out of jail straight away but also gives you a fat payout in compensation for daring to arrest you in the first place. Instead of getting a hotel when you… [read more]

From: A guide to summer festivals especially if you wouldn’t go

Kel says:

If you want a festival for older people or for families alike, get amongst the respectable punters at Bluesfest. A truly amazing festival experience to be had of ALL AGES. And all the young "festivalgoers" usually write themselves off on the first night, only to never hear from them again the rest of… [read more]

Gentle jabs to the ribs

Superman needs saving

Superman needs saving

Can somebody please save Superman? He seems to be going through a bit of a crisis. Eighteen months ago,… Read more

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