Does anyone expect the Australian inquisition?

Over at Larva Rodeo a few days ago, “Atticus” forensically dissected a typically silly and dishonest  Miranda Devine column.   Devine bemoaned a recent NSW Court of Appeal decision in which a DPP prosecutor was heavily criticised.   Prosecutors shouldn’t have to be so dispassionate and even-handed, Devine argues.   They should fight for the victim instead of having “one hand tied behind their backs” while defence lawyers are “free to use emotion and opinion and the power of their personalities to sway a jury”.

In fact, prosecutors under a common law system can vigorously seek a conviction to a quite considerable extent, as the Court of Appeal discussed in the case in question (  Livermore v R).   What they can’t do is engage in outright abuse of their opponent and even their own witnesses, or  present propositions to the jury that have no foundation in the evidence (which is what the prosecutor did in Livermore).   Nevertheless there are some restrictions on prosecutors that don’t apply to defence lawyers, and  commenter JW  eloquently explained the policy reasons for them:

It’s probably not surprising that a lot of people have a hard time understanding why this should be.

The point that Miranda misses is that, in order for it to be a fair fight between state and defendant, the prosecution has to have one hand tied behind its back. Not only does the prosecution have all the resources of the state behind it, but the jury after having seen photos (for example) of the corpse of the murdered child – is going to look for someone to punish. There is a natural, human inclination to want to see the crime avenged. And it is only human to want to take out that vengeance on the person who has been arrested and charged with the crime and now sits in the dock.

Further, there is already a natural inclination for juries to think, “well they wouldn’t have arrested him if he wasn’t guilty”. So the defendant starts off at a natural disadvantage; the restrictions on the prosecution only serve to even the playing field.

If the state was allowed to use anything other than purely dispassionate argument, based solely on the facts, then getting convictions would be like shooting fish in the proverbial barrel.

This  raises  an important more general issue that merits examination.   As JW explained, the primary reason  for the restrictive rules imposed on prosecutors in a common law system, and for that matter  the common law’s  extraordinarily strict, complex  and  exclusionary rules of evidence, is in order to reduce the prospect of  a  lay jury reaching a perverse verdict.    Journalist Evan Whitton focussed on the issue a few years ago in his book  The Cartel: Lawyers and Their Nine Magic Tricks, but charted a populist course of blaming the complexity of the law  on the  corruption and naked self-interest  of the lawyerly caste in England:

A tiny cartel of lawyers and amateur judges, who were mainly interested in money and status, effectively decided in the 13th century that truth does not matter, and turned the law into a game late in the 18th century by inventing a truth-obscuring adversary system, by giving lawyers control of civil and criminal trials, and by concocting a series of truth-defeating rules for concealing relevant evidence.

Far be it from me to attempt to deny the self-interestedness of the legal profession (despite being a member of it).   However, surely a far more plausible reason for both the rules of evidence and restrictions on prosecutorial conduct  is the one JW advances.   The jury was enshrined in English law by Magna Carta as a fundamental protection against a potentially oppressive Crown.   Article 39 reads:

No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land.

However,  English lawyers gradually discovered, by the standard pragmatic trial and error methods of the common law, that juries were easily capable of being manipulated and therefore of  rendering a capricious and unjust verdict.   Just ask Lindy Chamberlain or the family of OJ Simpson’s  murdered wife.   In essence, common lawyers  learned in the school of hard knocks  what modern cognitive science is only now discovering through research: that humans mostly make moral decisions by biologically “hard-wired” moral intuitions, and that  those decisions can be manipulated by the way a moral question is “framed” and by strategic application of knowledge of the way we use heuristics in reaching such decisions.   The jury is effectively expected to judge an accused person’s guilt or innocence by applying the community’s moral intuitions to the evidence in the case,  rather than  the intuitions  of an excessively powerful monarch/executive government.   The combination of rules of evidence and behavioural constraints on prosecutors aim at reducing the risk of those moral intuitions being subverted and manipulated.   To put it another way, the jury delivers the intuitive component of Aristotelian ethics while the rules of evidence and prosecutorial behavioural constraints are meant to add the sound logical reasoning that Aristotle says is necessary (along with living a virtuous life) for the achievement of practical wisdom.

But how often do juries get it wrong (either by convicting an innocent person or acquitting a guilty one)?   And is there any better system?   Evan Whitton seemingly has no difficulty in fearlessly answering  both those  questions.   He asserts that the French/continental system, where specially trained judges, sometimes assisted by lay jurors, determine guilt or innocence, and rules of evidence are consequently much less complex, is vastly superior to the common law.   Whitton claims that continental systems “put away 90 per cent of known serious criminals” while in the English system “80 per cent of known serious criminals get off, but one per cent of prisoners are innocent”.   Manifestly there is no way of establishing any such claims, and the fact that crime rates in common law countries are mostly not dramatically different from those in Europe rather  suggests it’s nonsense.   As French judge Jean-Marc Baissus observed in a 1998 article which explored Whitton’s arguments and gave an accessible outline of the continental system:

In the absence of reliable, comparable statistical data I will not venture to give an opinion on Mr. Whitton’s claims …   I will simply note that murder rates (the type of offence where the proportion of unsolved cases is probably the lowest) are equivalent throughout Western Europe, or that the rate of imprisonment hovers everywhere around 90 detainees per 100,000 population.

It’s a great shame that Whitton so discredited himself with such absurdly hyperbolic claims, because there really are some virtues to the continental system that merit serious discussion.   For example,  entrusting the finding of guilt or innocence to a  specially trained judge whose job is to discover the truth, rather than just to  referee a contest between prosecution and defence lawyers, allows much less complex rules of evidence (and hence probably less prospect of expensive and  traumatic reversals on appeal).   As Baissus explains:

In contrast to civil law (see below), the continental penal law of evidence is not regulated in penal matters. There are no special rules on the way evidence may be collected or what should qualify as evidence in court. It is a logical consequence of the duty to search for the material truth handed over to a qualified and impartial judge. In penal matters the facts may be proven in any way, and the judge accepts any element provided it has been lawfully obtained and the accused has had an opportunity to discuss it in court. Hearsay is not as such deemed inadmissible.

On the other hand, while in common law countries the great majority of criminal cases are dealt with in lower courts by guilty plea, apparently continental systems (on which I’m certainly not an expert) don’t generally allow for any such thing:

For instance, a confession is a means of evidence similar in weight to another. It does not dispense the prosecution from the burden of proving the offence, just as it is not binding on the judge. Thus there is no “plea” of guilty or not guilty in continental criminal procedure, nor any consequence thereof on the rest of the proceedings. Generally speaking there is no room for plea-bargaining in the American sense. In fact the Dutch code expressly prohibits to convict the accused on the sole basis of a confession.

While I’m sure that, as  Baissus suggests,  there are  occasional offenders  accused of minor  crimes  in common law countries like Australia who plead guilty when they’re really  not merely because of the expense of contesting the charges, people accused of serious crimes in Australia  are entitled as of right to free legal representation when they can’t afford it themselves, under the High Court’s  Dietrich principle.   It seems dreadfully wasteful and economically inefficient to force all matters to trial even where the alleged offender wants to plead guilty.   Nevertheless, I can’t see any reason in principle why Australia could not adopt a quasi-continental system of criminal trial by a specially trained  judge assisted by some lay jurors, but preserve the  availability of a guilty plea  along with modest  sentencing incentives to encourage such pleas.  

There are numerous other  advantages  to the continental system.   It gives a real role to the victim, for example, without running the risk of a trial process driven by vengeance.   And complex questions of expert evidence aren’t determined by lay juries who have no sensible means of choosing which expert to believe, nor is the court forced to rely on partisan experts selected by the parties for their own advantage.   As Baissus observes:

In continental procedure, experts are court-appointed. They share the same duty of impartiality as the judge. Their findings are for the court and not dictated by the wish to support one party’s position. The reputation of an expert is not based on the number of cases he has helped “win”. And certainly, it would be a disciplinary misconduct if he were to behave in a partial manner. Experts are not encouraged to make a given finding but are selected on their reliability, i.e. their acceptance as competent and independent professionals by all opposing parties. Specially, it cannot be said that the prosecution has an undue advantage when confronted with an indigent party.
An added advantage is that the cost of expert opinion is much less in continental procedure. They are paid out of State funds, which are usually not very generous, or, in civil cases, by the losing party. But their remuneration is under the court’s supervision, which ensures they remain reasonable. In fact, experts are often encouraged not to make their major source of income from testifying in court, to preserve their independence and check their proficiency through successful private practice. One of the major advantages continental experts derive from their judicial work is to be able to publicize the tag “court-appointed expert” in their private practice. Private clients have a measure of quality assurance, whilst the courts hold on to a useful stick to keep experts in line.

What a pity that Evan Whitton has so discredited the concept of a continental-style criminal justice system by carrying on like a pork chop about the venality of lawyers.   I wonder if it’s too late for a serious discussion here?

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Francis X Holden
15 years ago

From my lay perspective the Coroners’s Court proceedings seem to be close to the Continental system with a search for truth and broader rules of “evidence”

They also seem to make better reading when trying to understand a case.

In a case like yobbo’s (explicitly not asking for advice on his in particular), what are the pros and cons, of entering a Not Guilty plea but not denying most facts?

15 years ago

“It’s probably not surprising that a lot of people have a hard time understanding why this should be.

The point that Miranda misses is that, in order for it to be a fair fight between state and defendant, the prosecution has to have one hand tied behind its back. Not only does the prosecution have all the resources of the state behind it, but the jury

Chris Lloyd
Chris Lloyd
15 years ago

At the risk of opening a can of worms, is it true that the Lindy Chamberlain and OJ Simpson verdicts were examples of juries being “capricious and unjust”

John Morhall
John Morhall
15 years ago

It’s interesting to note that Kirby J wrote in relation to the Chamberlain case, in an afterword to: Young N; “Innocence Regained: the Fight to Free Lindy Chamberlain”, Federation Press, 1989 at p 289 “if an accused stands silent or looks different or is from a minority, he or she may suffer unfairly at the hands of fellow citizens in the jury box”. Whether such bias is hard wired or not is beyond my competency to comment, but on the assumption that it is true how do get a system which will ultimately deliver justice more effectively? To what extent is the moral intuition a necessary part of the decision making process in terms of assessing, what on occasion as you point out can be complex facts, or those which are amenable to emotional bias, howsoever caused, notwithstanding the historical imperative.

In the NT the catchment for jury selection is comparitively small, a point which has been made previously, Tuckiar notwithstanding. On the basis that s80 of the Constitution may not be applicable in the Territory per Isaacs J: R v Bernasconi 19 CLR 637; is the Northern Territory the place to start with a quasi continental system, or just forget about juries all together, and rely on the judiciary as I understand has been done in the NT in the past? In the alternative I understand that Bush GW has some interesting perspectives on approaches to evidence and justice, both within and without the United States. which dispense with the jury system entirely. The ghost of Torqmada is clearly alive and well, but whether an Australian Inquisition is in the offing is another question.

Graham Bell
Graham Bell
15 years ago

One problem with the word “inquisition” in Anglosphere is that it is so loaded with emotion (and perhaps justifiably so). Images come to mind of greedy monarchs, lunatic priests, robber nobles, avaricious abbots, lying neighbours, spies around every corner and of economic stagnation because the populace is too terrified to do anything more than subsistence work. (The word “propaganda” is similarly afflicted). In fact, there’s nothing wrong with inquisition as a means of finding out what happened and who was involved.

Agree with you about Coroners’ Courts.

Nicholas Gruen
Nicholas Gruen(@nicholas-gruen)
15 years ago


Thanks for the terrific post and the references which I’ll come back to as I want to look at the issues more closely myself. Even without a lot of background knowledge, I’m pretty confident that an ‘inquisitorial’ system is a more efficient and indeed fairer system for many (I expect most or almost all) civil cases.

But I greatly value the idea of a jury in criminal cases and I think it’s worth separating the issues out because otherwise the inquisitorial system becomes terribly smeared with the associations of the word inquisitorial. The most fundamental safeguard of the law is the independence of the judiciary and the next most important thing (at least in criminal trials) is a jury and we should ideally have both.

I think your rationalisation of common law rules of evidence as the wisdom of the ages in dealing with juries is a nice idea, but you’ve cited no historical evidence. I’m sure you’re right to a degree. But there is also the self interest

Jacques Chester
Jacques Chester
15 years ago

I might suggest that an intermediate or alternative step compatible with s 80 would be to allow professional jurors to offer their services.

Then eventually you’d have systems with 1 arbitrating judge and 3-5 experienced, well-trained jurors.

Of course this starts sail surprisingly close to Rothbard’s anarcho-capitalist conception of justice, wherein all the components of the court are hired from among competing services: the lawyers, the judge, the jury etc.

Chris Lloyd
Chris Lloyd
15 years ago

Nick said: “It can (and does) of course cut the other way.”

To add another more extreme example, suppose the accused has a confession beaten out of him. Admitting this evidence will typically help his case. Because the evidence of a confession after physical coercion is more probable for an innocent party (likey unused to the stress of a violent environment) than for a guilty party (who may well be a tough nut and unlikely to break under physical coercion).

So as a juror, if I were presented with the bald fact that the accused has confessed but was beaten, I would lengthen the odds of him being guilty. But I will never get to hear such evidence.

15 years ago

Very interesting conversation.

There’s another consideration to be had in respect to jury trials, though.

The reason that we have a system of trial by one’s peers is not necessarily because one’s peers are most likely to arrive at the “correct” answer. It’s quite possible (but far from certain, IMHO) that professional jurors, or a judge, could deliver more accurate decisionmaking.

Rather, putting the decision in the hands of the defendant’s peers enhances public confidence in the decision making process. Or at least serves as a buffer for public anger when the decision is unpopular.

I think this works mostly when a popular defendant is found guilty. If there is doubt in the public’s mind about his guilt or the propriety of bringing charges in the first place, there is likely to be much greater acceptance of conviction if it comes from a jury of ordinary citizens who look like the defendant than if it comes from either a bewigged judge or a professional jury.

I don’t think there is much that can be done to make people accept decisions to acquit unpopular defendants – case in point being the first criminal trial of the police officers who beat Rodney King back in ’92. The trial was shifted from downtown LA up to “lily-white” Ventura County so that the white middle class cops would get a jury that resembled them more closely.

And that jury did indeed acquit them (completely correctly, in my view) and LA exploded in riots. But that was more a product of pre-existing social tensions, together with the impact of the misleadingly incomplete video tape of the King beating.

So sometimes the public is going to want to see people who have not committed criminal offences punished; if one assumes that railroading innocents is unacceptable, there is nothing to be done about that.

But most of the time people just want to know that defendants convicted of criminal offences got a fair shake.

And the best way to publicly demonstrate that defendants are getting a fair shake is through trial by a jury of one’s peers.

John Morhall
John Morhall
15 years ago

Thinking about the validity of JW’s comment: “And the best way to publicly demonstrate that defendants are getting a fair shake is through trial by a jury of one’s peers”, the question is whether within Australia generally, a jury of one’s peers is truly representative of one’s peer’s, or “one’s peers” are some mythical aspiration, and irrespective of that whether they can give the accused a “fair shake”? I guess for the most part the system works, and part of me say’s “if it ain’t broke why try to fix it?” but whether juries are the vehicle to ultimately opine on the facts to deliver justice in matters involving say complex expert evidence I have my doubts. I think that Ken’s idea of having panels of jurors capable of assessing such evidence has some merit, but how to cover some of the other aspects such as the diversity of moral values (Hart’s rule of recognition – the penumbra) which will ultimately cover decisions at the edge, and on which some of the more complex cases may turn, may not be so amenable to such a system. I guess there’s no such thing as a half pregnancy: with an available independent judiciary within Australia, perhaps the question of the jury system itself is in need of consideration. It may speed up the judicial process which in itself may deliver justice to a greater number.

15 years ago

Anyone spending time dissecting a Miranda Devine column has far too much time on their hands. Idle hands…..devils work & all that, y’know