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Manifesto On How To Fix The Australian Court System

Miscellaneous By: Philip Roberts
Non-fiction



This manifesto was written over many years and looks at ways to make Australia's faltering court system actually work!


Submitted:Dec 26, 2010    Reads: 68    Comments: 0    Likes: 0   



PART ONE: WHAT IS CURRENTLY WRONG WITH THE AUSTRALIAN LEGAL SYSTEM:
The purpose of this manifesto is both to look at what is wrong with the Australian legal system today and to provide simple, effective solutions. Since there are more holes in the Aussie legal system than the proverbial Swiss cheese, for the most part I have not attempted to tackle laws on a one-on-one basis, but have attempted to look at the general question of how to make the law more accessible to the populace as a whole, at a fair, affordable price.
As I see it there are a number of things wrong with the court system in Australia (and the Western world for that matter) today:

1) ONLY THE RICH CAN AFFORD LEGAL HELP ANYMORE. Although in theory the rest of us can get Free Legal Aid, in reality the federal government is continually undermining the funding of Free Legal Aid. Also there is a question mark over the efficiency of Free Legal Aid. Traditionally Free Legal Aid has employed lawyers straight out of legal school as a sort of training ground for them. This may help young lawyers get training, but if Jane or John Nobody has a genuine grievance against a multi-national conglomerate with billions of dollars available to hire the best shyster lawyers in the world, Mr or Ms Nobody is hardly likely to win any legal battle with the help of Free Legal Aid's tyros.
2) TOO MANY CRIMINALS ARE GOING FREE. A common myth espoused by shyster lawyers the world over is that even the guilty should have the right to prove themselves innocent. In actual fact one of the two most important aims of the legal system, should be to ensure that the guilty always get punished. Clearly that is not happening today, as the Rodney King and O.J. Simpson cases both prove.
More recently (4 August 2010) in Victoria, Australia we had the ridiculous situation where a speeding drunk driver not only did not go to gaol, but did not lose her licence or have her car impounded (as Victorian Law now allows for hoon drivers). The reason: the judge stupidly accepted the woman's excuse that since she lives in a rural area the public transport is so unreliable that without her own car she could not get to and from work on time. I kid you not!
3) TOO MANY INNOCENT PEOPLE GET GAOLED. Unfortunately under our current system, whether you are found guilty or not has very little to do with whether or not you are actually guilty or innocent. It is more a matter of whether your shyster lawyer is more cunning than the clever shyster lawyer the District Attorney's Office has prosecuting you. And this is where the guilty have a big advantage over the innocent. Whereas the innocent must dip into their own savings to pay their court costs, or rely on the increasingly unreliable Free Legal Aid, the guilty have the spoils of their crimes to pay for their cunning shyster lawyers. This is why increasingly more and more big name barristers are specialising in defending the guilty. Because if you are a shyster only interested in sucking money out of the legal system, there is a lot more money to be made defending the guilty, than in defending the innocent or in prosecuting. [This practice can sometimes backfire on criminals, however, since once a lawyer gets the reputation for only defending the guilty, it is very difficult for either the judge or jury to give the accused the benefit of the doubt if that particular shyster is defending them, since their natural inclination is to think, "This bloke must be guilty if that shyster is defending him"!]

4) THE JURY SYSTEM IS MERELY A MATTER OF PICKING TWELVE UNEDUCATED HALFWITS AT RANDOM and hoping that their bigotry will not murder justice. As it did in the Rodney King case in the USA when four bent cops assaulted a black man for running a red light. Despite amateur video proving beyond any possible doubt their guilt, the four bent cops were found not guilty by the "Twelve good morons untrue"! Admittedly American justice has always been brutal justice and it may be partly a matter of apathy on the part of US juries, that they are so used to the police beating them up for committing misdemeanours that they expect everyone to put up with this police brutality.
Another example of the jury system not working was when O.J.Simpson was able to rig the jury so it was mainly black and thus minimise his chance of getting a fair conviction. Although in fairness to the jury Simpson's shyster defender when the trial first started probably corrupted any possible verdict with his "Blood in the streets" speech in which he threatened that a conviction of Simpson [despite his obvious guilt] would lead to blood in the streets as the black population of Harlem and other areas of America rioted. In fact since O.J.Simpson was the whitest black American since Sammy Davis Junior, only remembering his colour when he was on trial for his life, it seems unlikely that before the "Blood in the streets" speech any Afro-American who have given a damn whether he lived or died. In fact, the cruellest irony of the abusive speech was that prior to the incredibly racist speech most whites were pro-Simpson and most blacks anti-Simpson.
But certainly it is an indication of how far from working the U.S. legal system is that a lawyer could get away with such a disgraceful speech before a trial he was involved in. In the British world such an outburst would have resulted in the lawyer being disbarred for years and probably gaoled as well.
Certainly it affected the result of the trial, since before going to consider their verdict the jury gave Simpson a now famous strange look. A look which in fact said, "You're guilty as hell O.J., but we don't dare find you guilty for fear of there being blood in the streets!"
5) FAIRNESS NEEDS TO BE ASSURED SO THAT AN INJUSTICE CANNOT OCCUR DUE TO SOME OBSCURE LAW:
In the 1980s when I was doing a business course, one subject of which was legal studies. The lecturer, a former barrister, told us on day one "Do not confuse the concepts of guilty and not guilty with the concepts of right and wrong. There is no room for right and wrong in the Australia legal system." He then told us an example from his days as a barrister: A man was driving along a country road at night, with his car lights on and seemingly nothing in front of him. Suddenly the car slammed to a halt, throwing the man through the windscreen (this was in the days before seatbelts in cars).
It turned out that what the car had slammed into was a flock of black sheep, which a farmer was leading from one paddock to another, on opposite sides of the road, in the middle of the night, without carrying a torch or beacon of any kind. Naturally since he was badly hurt and had massive medical bills the driver sued the farmer.
Then, quite proudly, the lecturer told us how in defending the farmer he had found an obscure Westminster Law carried down from English Law to Australian Law in which the right of farmers to move there sheep or cattle from paddock to paddock is garanteed under all circumstances. Since there was no mention in the law of the farmer having to have the brainpower to use a torch if leading black sheep in the middle of the night, the farmer was found not guilty and the driver was left with massive medical bills, that rightly he should not have had to pay!
* * *
PART TWO: HOW TO FIX THE LEGAL SYSTEM
My solution as to what to do to fix the Australian legal system is as follows:
1) GET THE DRAG QUEENS OUT OF THE COURTS: remove the concept of court robes and wigs and have judges dress in plain formal clothes. Robes and wigs date back more than a thousand years in the Westminster system that our system is based on and are certainly a thousand years out of date.
This would help the judges to keep their heads out of the clouds a bit by keeping them on the same plain as the people they are dealing with. At the moment judges seem to live in the Twilight Zone with no conception of what it is like to be a real person. An example of this is the disrespectful way that many judges act toward the public, while demanding respect from the public. Respect is not a Christmas present; it is something you have to earn! And with their continued refusal to grant harsh penalties to extremely violent criminals, in the face of strong public opinion, the judges certainly have done nothing to earn anyone's respect.
Around the turn of the century there was a famous case here in Victoria, where a murderer was granted an unbelievably light sentence. When the victim's brother and father cried out in disbelief at hearing the verdict, they were both convicted on the spot of contempt of court and served ninety days in gaol!
Not only had the judge screwed up on his original verdict, but he then compounded his error by letting his monumental ego further get in the way of anything that could sanely be called justice.
2) MAKE THE JUDGES MORE ANSWERABLE FOR THEIR ACTIONS.
I. At the moment no matter at what age they are appointed, in Australia all judges retire at seventy, and virtually cannot be dismissed once they have been appointed. As a consequence some judges run amok virtually overturning every law the government creates. Clearly these idiots are acting illegally, but since judges cannot be sacked they are all but above the law. The simple solution would be to give the government the power to sack judges.
However, this would give the government the power to corruptly control the courts in this country. There are plenty of backwoods, fascist, anti-Utopias in the world at the moment where the judges are just puppets to insane dictators. So, although judges must have their power curtailed severely, politicians being able to sack them at will is not the answer.
The answer is for judges to be appointed for a set term in office: for high court judges a first period of eight years, with a possible two further terms of eight years each, or up to four later terms of four years each, for a maximum total of twenty-four years. These later terms would not have to start immediately after the first term is completed, so the government would also have the power to discipline recalcitrant judges by demoting them off the high bench for a few years, then giving them a second term of only four years. For all other judges, the first term should be ten years, with a maximum two later terms of ten years each, or four later terms of five years each, for a maximum total of thirty years. And again the later terms should not have to start as soon as the first term ends.
This system would give politicians the power to sack corrupt or power-mad judges, and make them answerable to the law for the first time in this country's history. But without the politicians being able to make judges dance like the proverbial puppet-on-a-string.
II. Also judges should be forced to justify their exotically high wages by actually spending some time in court to keep down the waiting time for people being held for trial. At the moment people can spend years in prison awaiting trial if they are refused bail or cannot afford to pay their bail. In many cases they are then found not guilty after having had years of their life stolen from them.
Last year the high court judges in Australia demanded a $40,000 a year pay rise. This is despite the fact that most of them average less than one day a week in court. Any wage they get paid should be on a pro-rata basis on the assumption that to get the full payment they must spend a full forty-hour week in court.
3) ABOLISH A PERSON'S RIGHT TO SAY "I REFUSE TO ANSWERON THE GROUNDS IT MIGHT INCRIMINATE ME". This plea is a cop-out only used by criminals to escape justice. Obviously no innocent person wrongly accused would ever need to say, "I refuse to answer on the grounds it might incriminate me"; since an innocent person would presumably always be telling the truth when answering any question put to them. And surely telling the truth can never incriminate you if you are innocent.
Although this may come as a shock to criminals and robber-baron barristers alike, the law should operate for two ends only: to punish the guilty and to free the innocent. A law allowing you to say, "I refuse to answer on the grounds it might incriminate me" is a law designed solely to protect the guilty. Therefore it is both an anachronism and an obscenity. The law should not ever function to protect the guilty! Therefore this plea must be abolished from our law books.
Despite claims by shyster lawyers who specialise in defending the guilty, the guilty must not have a fair chance to get off. Justice should not function like a lottery whereby you are convicted or freed based upon whether or not your lucky numbers come up. It should be based upon what is fair and just. This means the guilty must be convicted and the innocent must be freed! The guilty do not have the right to try to get away with it! As the cliché goes, "If you can't do the time, don't do the crime!" See also note in point 4) below:
4) LEGALISE THE LIE-DETECTOR:
I. The only reason the lie detector was ever made illegal in courts of law was that they are a danger to the cushy jobs of judges, and robber-baron barristers. In theory if we use lie detectors, we do not need judges, barristers, juries, or even courts.
[Note: regarding 3) above: Lie detectors do not judge your words when you speak, they measure the chemical reactions in your body. These reactions occur even when you refuse to answer, so the lie detector would still be able to judge your reactions if you stubbornly refused to speak! It is really a guilt-or-innocence detector, not a lie detector. This is another reason why it would be necessary to take away an accused person's right to say, "I refuse to answer on the grounds it might incriminate me".]
II. In theory a Justice of the Peace could stand in for the judge, while the lie detector would then take over from the barristers and jurors.
If Justices of the Peace stood in for judges in lie-detector hearings, millions of dollars and years of time could be slashed from the expense of major cases. An example: The Lindy Chamberlain case. This case went for three years, cost tens of millions of dollars and we still do not know if Lindy Chamberlain is a murderess or not. However, we can say for a certainty, that whether she is innocent or guilty justice was not done. If she is innocent she had six years of her life stolen from her (three years in court and three years that she spent in gaol before being released after the retrial), had her first marriage destroyed, and was put through hell for well over a decade. If she is guilty, she only served three years gaol for the murder of a small child, when she should have served decades in gaol. Neither outcome can be called justice. However, if on day one when she was arrested back in 1980, she had been strapped to a lie detector and questioned, her absolute innocence or guilt could have been established beyond any possibility of doubt, in a few hours flat, at almost no expense to the tax-payer.
This could be the case with virtually all court cases. The accused person's absolute guilt or absolute innocence could be proven, beyond any possibility of doubt, in a couple of hours, at virtually no expense to the taxpayer.
III. Also as stated above, at the moment a large number of people are held in gaol for years awaiting trial, only to be proven innocent. How are the years of their life stolen from them in this situation ever to be given back? Likewise many court cases go for two or more years. Again when the accused is eventually found not guilty (as does occur with some lengthy cases), how is the person wrongly accused to be given back those years of his or her life?
IV. It is necessary to produce some form of fool-prove test for the lie detector, if it is going to be the main method of determining a person's guilt or innocence. Both to protect the accused from the lie detector being tampered with before they are questioned on it, and also to protect the police operating the lie detector from charges of tampering with a lie detector to produce a false result.
The simple solution: provide the following test to the lie detector each time before an accused person or witness is strapped to it: the defence team will pick a test subject at random passing by outside the court and he or she will be strapped to the lie detector. The test subject will then be provided with a sheet of twenty-five questions and answers provided by the prosecution team. These questions can be simple or complex, on any subject, and must be different each time the lie detector is tested in this manner. The test subject is given the questions, and answers, and is then instructed when asked to give truthful answers on most questions. However, he or she will be instructed to deliberately lie in answering half a dozen or so questions.
This way the lie detector is tested in a way in which it cannot be manipulated to give incorrect answers since the police operating it will not know the questions in advance. And most importantly will not know which questions the test subject will give untruthful answers to, since even the test subject will not know this in advance. Therefore there can be no possibility that the lie detector operators have been got at by the prosecution to help falsify evidence against the accused.
Note: that for this test to work, it is necessary to perform it immediately before the accused is tested, in front of the accused and his or her attorney. If for any reason the accused cannot be connected to the lie detector immediately after it has been tested, it will then be necessary to re-test the lie detector with a new test subject and twenty-five new questions, selected again by the defence team only, before the accused is finally tested.
5) CIVIL CASES. Unfortunately, it seems probable that in some civil cases it will never be possible to resolve things without courts of some kind. For instance when an individual is suing a powerful corporation. How do you strap a corporation to a lie detector to determine its guilt or innocence? Therefore, regrettably actual courts will still have to be retained for a small number of big dollar civil cases.
I. In this case robber-baron barristers should be banned from the courtroom and the accused and accusers will handle their own defence or prosecution case. This will prevent rich and powerful people from sidetracking the law by simply spending millions of dollars on lawyers to keep a case going indefinitely until their opponent has been bankrupted. Ex. The Holden Example. Some years ago a case arouse where a man and his girlfriend were both crippled for life after a Holden car the man was driving crashed out of control. The mechanics dealing with the car after the crash advised that a manufacturing flaw might have caused the crash. The man was successfully sued by his girlfriend for millions of dollars compensation (since she would be in a wheelchair for the rest of her life). So the man sued Holden also. The man won the initial case and was awarded a multi-million dollar settlement against Holden. However, Holden appealed the decision. The man also won the appeal, however, Holden appealed to a higher court. The man won the second appeal also, so Holden appealed to yet another higher court. This process continued for a number of years, until the man was bankrupted by legal expenses and had to give up the case. In the end Holden spent around $80,000,000 to ensure that there was no final result in this case, although the original settlement against them had only been $20,000,000. So money was not the issue with Holden. Their only concern it seems was to ensure that justice would not be done.
6) A GREATER EMPHASIS IN LAW IN THIS COUNTRY MUST BE UPON GARANTEEING JUSTICE ALWAYS IS METED OUT.
Legal concepts like "guilty" and "not guilty" are not as important as seeing actual justice is always done. Note the example in Part Two of the farmer leading the black sheep at night without using any form of torch or beacon.
Laws such as U.S. style lemon laws to protect the innocent are desperately needed in this country. And a much greater emphasis must be place upon consumer-protection and consumer rights. Under both Liberal and Labor governments in this country in recent times, only manufacturers and retailers have had any rights at all. It is more important that simple men and women have their rights protected than that big business has its rights protected. To give an example of the sort of thing I mean: more than two decades ago a case occurred where a man in Victoria purchased a large Ford Bedford truck. This man made his living delivering goods from state to state and needed a study truck which would last for many years. However, almost from day one when he purchased his truck from Ford (having invested his whole life savings in the truck) it began to fall apart. Bits and pieces were literally falling off the truck every time he drove it, until eventually he nearly had a fatal accident when the steering completely went on the truck. When Ford refused to refund the man's money, he took them to court and won a hefty settlement against Ford. However, Ford appealed and won the appeal upon a bizarre technicality. It seems the problem with the truck was not bad workmanship in building it but bad design. The truck was correctly built to a bad design. And Australia's shoddy consumer protection laws do not protect you against bad draughtsmanship, only bad workmanship. Since the problem with Bedford trucks was bad design Ford had not broken any law, and even though he was in the right, this bizarre and immoral law bankrupted the poor deliveryman.
7) THE CONFRONTATIONAL SYSTEM: With or without barristers and judges in our courts the most important change that needs to be made is the abolition of the confrontational court system in favour of a more justice based system. [Remember justice means the guilty should always be convicted and the innocent should always be freed!] Under the confrontational system, which Australia, the U.K., the U.S.A., Canada, and most countries in the world have, the District Attorney (D.A.)[prosecuting attorney] is employed to attempt to convicted the accused regardless of how innocent he or she may be. And in some cases D.A.s will ignore evidence they find that clearly proves the accused is innocent. It is of no interest to a District Attorney whether the accused is innocent or guilty. Their job is to get a conviction no matter what!
Likewise, under the confrontational system you have a Defence Attorney, whose job it is to free the accused, again without any interest whether the accused is innocent or guilty. Their job is to get the person off, no matter how guilty he or she may be! Hence the system I have already mentioned whereby many robber-baron barristers make a fortune by only defending the guilty, since they know that the guilt are more likely to have a fortune to pay them and are more desperate to pay any amount of money necessary to get freed.
In some countries, like France, the confrontational system has been abolished and replaced with a true justice system. Instead of a District Attorney whose job it is to convict the accused, no matter how innocent or guilty he or she may be; the French system has a Court Attorney whose job is to investigate the case and find the truth. This means that if an innocent person is accused and all the evidence seems to point toward the accused, if he or she can think of another plausible suspect or theory the Court Attorney will (and must!) investigate it. Under the confrontational system the D.A. would not be remotely interested in hearing a new theory or suspect from the accused. The District Attorney's job remember is to get the accused convicted irrespective of his or her actual innocence or guilt!
* * *
PART THREE: SUMMING UP:
In summing up I am suggesting seven basic things regarding the Australian Court System:
1) We need to take robber-baron barristers out of the court room and regulate how much can be spent by defence and prosecution so a pauper has a fair chance to sue a billionaire and expect to win.
2) The guilty do not have the right to try to get off and huge suspensions and penalties must be introduced against robber-baron barristers who specialise in defending the guilty. To the point where it must be a criminal offence for a lawyer to try to get someone found not guilty if the solicitor or barrister knows they are actually guilty. In this case the lawyer should be suspended for life! When representing a guilty person the lawyer should have to try to convince them to plead guilty, then attempt to plea-bargain for a lighter sentence because they have pleaded guilty and saved the court time and money.
3) Too many innocent people are being convicted because they cannot afford world-class lawyers; or are spending years in gaol before finally being found not guilty.
Limiting or banning the use of robber-baron barristers in court (so that both parties would have to use less expensive solicitors rather than costly barristers) would go a long way toward fixing this problem. As would forcing judges to work five days a week for their massive salaries, instead of the one-day a week many now work.
4) The abolition of the jury system in favour of the lie detector, or greater emphasis upon a varied jury. So that the right to be judged by twelve of your peers does not mean an all black jury if you are black, an all white jury if you are white, and all female jury if you are female, or a jury all of convicted arsonists if you are being charged with arson.
5) Greater accountability by judges. Judges must start to take seriously major crimes and be prepared to hand out the maximum possible sentence on occasions.
Although a factor here is that in the past when a judge did hand out a major sentence, the convicted person would appeal against the major sentence and the appeals court virtually always would slash the sentence. Understandably judges got sick of this and it seems many decided that they could not beat the system, so they gave up and started to hand out farcically light sentences to begin with.
The solution is obvious: In future you should not be able to appeal against your sentence without appealing against your conviction. If you have pleaded guilty or are not appealing against your conviction, you should have to do whatever the judge awards you.
This way if you are unjustly convicted you can still appeal against the conviction. But if you are guilty you cannot appeal just against the sentence!
6) A greater emphasis in law in this country must be upon guaranteeing justice always is meted out. The concept of fairness and unfairness (or right and wrong) must replace the legalese of guilty or not guilty.
We need U.S.-style Lemon Laws. Australia has consumer protection laws, which at best are a sick, dirty joke, designed to always benefit crooked manufacturers or sellers and never benefit the consumer. We must get strong Lemon Laws like the ones that have existed for decades in the U.S.A.
7) The Confrontational Court System must be replaced with a system like the one in France where the Court Attorney is trying to get justice; is trying to always convict the guilty, and always free the innocent. Not always convict the accused no matter how innocent he or she may be as District Attorney's do under our corrupt system. Or always trying to free the accused, no matter how guilty he or she may be, as Defence Attorneys do under our system.
Remember, the whole concept of justice means that you should always convict the guilty, and never convict the innocent! And that just is not happening in Australia at the moment!
THE END
© Copyright 2010
Philip Roberts




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