Book Review: The Quest for Justice

I first heard of Ken Crispin when I read The Crown v Chamberlain. The book was an accessible guide to the evidence before the 1987 Morling Royal Commission into the convictions of Lindy and Michael Chamberlain. Crispin, by then already an experienced criminal lawyer, had been junior counsel for the Chamberlains in the Royal Commission proceedings.

It is at the essence of folklore that the truth hardly ever affects what people believe. The Morling Commission found, conclusively, after considering all the available evidence, that Lindy and Michael were innocent and that Azaria had, indeed, been taken and killed by a dingo. The Commission led to a massive rethink of the way forensic scientists practise in Australia. The dangers of false positives in forensic testing were graphically illustrated by the fact that the “foetal blood” in the Chamberlain’s car turned out to be chemical treatment applied by the manufacturer before the vehicle left the factory.

Yet, in a recent chance conversation about the book at a pharmacy checkout, the first question I received was whether Lindy Chamberlain was guilty.

Just as my immediate thought was that every pharmacy check out person in Australia should have to read The Crown v Chamberlain, the calm and carefully expressed arguments in The Quest for Justice cry out for as broad an audience as possible. The shared Australian consciousness could only benefit as a result.

Since Crispin wrote The Crown v Chamberlain, his experience has grown. Crispin has served as Director of Public Prosecutions; a judge of the ACT Supreme Court followed by a term as President of that Territory’s Court of Appeal. Like Joni Mitchell’s mythical character, he has looked at life “from both sides now”.

The Quest for Justice is a book about values. It talks about the relationship between values and the law. It discusses the way in which our courts administer the law, especially, the criminal law. It talks about the criminal law and the criminal trial, especially, the trial of criminal charges by jury trial.

In talking about “the law”, The Quest for Justice does a service for each and every lawyer who feels that her profession is misunderstood by the public. Crispin examines the purpose of sentencing. He concludes that its fundamental purpose is to protect the public against crime and its effects. He argues, persuasively, that heavier sentences are not, necessarily, the best way of achieving this objective. He rejects the notion that heavy sentences may be justified for the purpose of assuaging people’s feelings (whether they be the feelings of victims of crime; relatives of a victim or “a shock jock” whose “feelings” are a means of making a living).

The Quest for Justice is a study in calm and considered advocacy. Crispin pulls no punches. He takes strong positions. However, The Quest for Justice never loses its sense of calm. In a way that is characterised, at the political level, by Barack Obama’s speeches, Crispin acknowledges the feelings of those who hold strong contrary positions. Those feelings are neither ridiculed nor stigmatised. Their legitimacy is acknowledged. However, the emotional position on which the contrary view is based is not allowed to prevail.

Sometimes, the connection between the emotions held and the facts on which they purport to be based are respectfully shown to be in error. The sources of misinformation are identified and exposed. At other times, the facts giving rise to the emotional position are acknowledged and accepted but the policy position to which the emotion gave rise is shown to be counter-productive. Crispin draws on many anecdotal examples from his vast experience. He draws on published research. He draws on international comparisons. At all times, principle and pragmatism work cooperatively. The Quest for Justice is about strongly contested issues but Crispin continually works across contested ground from a platform of acknowledged and shared values. Time and again, Crispin does what the great advocates do. His arguments, even when new or complex, seem familiar and seem as if they have come from deep within the consciousness of the reader (or listener).

The points made by Crispin concerning the processes of the criminal trial are no less fundamental. The importance of maintaining a fair process, with no exceptions, is stressed. Crispin gives advice to prosecutors that our system of justice is more important than “the slime bag in the dock”. The Quest for Justice deals at length with public perceptions that the criminal process is fraught by technicalities that allow the evil defendant to “get off”. He deals with a number of different “technicalities”.

One form of “technicality” involves clear misconception on the part of the persons who imagine the injustice and the technicality. This will often be based on misreporting and misinformation by others. Crispin provides a beautiful anecdote of a charge against a man of unlawfully killing his wife which had been dismissed by the court. Crispin had the advantage of staying with respectable, normally well-informed and non-hysterical friends in a country town. They were the source of the tale of the terrible injustice of this killer having been let off. The evidence that the death was murder included scald injuries on the deceased wife.

By coincidence, Crispin also ran into the forensic pathologist who gave evidence at the trial. He expressed surprise that the trial had proceeded at all. He explained that the autopsy clearly showed that the wife had suffered a spontaneous and massive heart attack. The scald injuries were explainable by the fact that the wife had been removing hot water from the stove when she suffered the heart attack. This was then an injustice which only existed in the minds of people who had received completely inaccurate information about the true circumstances.

Crispin acknowledges other forms of “technicality”. He recalls grinding his teeth in frustration as a presiding judge having to dismiss charges because evidence had to be excluded as a result of senior police officers’ lazily choosing not to comply with basic procedures while investigating the offence. Sometimes, the Crown brings the wrong charge: one that is not made out by the evidence. At other times, the evidence fails to make out an essential element of the offence charged. Crispin also points out, again with an anecdote of two police officers completely contradicting one another in respect of a simple traffic accident, that witnesses sometimes simply fail to perform at the crucial time in the witness box.

The Quest for Justice displays empathy for victims, victims’ families and also for families of offenders who lose their provider and parent when sentences of imprisonment are imposed. The empathy, of course, extends to those who are wrongly convicted of offences. The Quest for Justice acknowledges that, despite its safeguards, the criminal trial does lead to innocent persons’ being convicted. And The Quest for Justice explains why, on occasion, this can happen and suggests ways of improving the process. Despite the failings acknowledged by The Quest for Justice, the book remains an accessible explanation, and a very strong defence, of the processes by which criminal trials are conducted.

The first half of The Quest for Justice deals with subjects and presents arguments which every lawyer could, and would like to, use to meet the arguments raised by non-lawyers regularly at dinner parties and family gatherings. However, the factual and normative positions established during the first half of the book are used with equal persuasiveness to deal with three topics of broader social and political importance: the way in which our society deals with the problems of mental health; the war against drugs; and the war against terrorism.

The plight of the mentally ill turns up throughout Crispin’s discussion of the criminal justice system. The grand scandal of our time, that we closed the mental institutions and saved our dollars by not providing any substantial replacement, is familiar to anyone involved in criminal law. The default solution, that we use prisons as institutions to store the mentally ill, is just as obvious and just as scandalous. Crispin calls for compassion and for more resources to be directed to rehabilitation and integration of the mentally ill into the community.

The extraordinary thing about the war on drugs conducted in and by most countries in the world is how long it has gone on. Nearly four decades have now passed since President Nixon’s famous declaration and “the war” has failed more spectacularly than the prohibition of the twenties in the United States. It has wreaked more death and created more lawless disorder in many more places than that sorry period of US history. Crispin, again with his broad experience in the criminal justice system, can speak graphically of the personal toll that drugs impose on individual drug users and their families. He also describes the toll experienced by victims of crimes committed to obtain money for drug purchases. He also points out that, despite this individual suffering and despite the king’s ransoms of resources poured into law enforcement over those decades, drugs are cheaper and more plentiful and more easily available than they ever were and criminal and terrorist organisations around the world finance themselves on profits obtained by supplying illegal drugs.

The extraordinary thing about The Quest for Justice is that Crispin contemplates the leaders of the major political parties in a western society like Australia attempting honestly to face reality, to focus on the health and safety of young people and to put in place a practical program to end the destructive impacts that the war on drugs is having on that health and safety. Having imagined the impossible, politicians acting honestly, practically and with the well-being of their society in mind, Crispin then sets out a modest program by which the war on drugs may be progressively be dismantled.

The program starts with modest changes such as asking young people why they take drugs (and taking notice of what they say) to needle exchanges, safe injecting rooms, decriminalising personal use, providing heroin on prescription and through to licensed providers supplying drugs in much the same way that tobacco is legally provided today. Crispin defines the need to end the war on drugs in terms of human rights. The ill-health, deaths, stigmatisation and imprisonment of drug users, at the end of the day cannot be justified by what is sought to be achieved by the war on drugs. Much more definitively, it is unjustified when one considers the evidence as to the real counter-productive impacts of that same misguided war.

Despite the quixotic nature of Crispin’s imaginings in a world where a means tested levy for flood reconstruction is a political hot potato, since he ceased writing, increasing moves for decriminalisation of previously illegal drugs have emerged, particularly, in countries in South America. Sometimes, it is necessary to imagine the impossible.

The Quest for Justice commences the discussion of the war on terror by reference to the experiences of British national, Binyam Mohamed. Binyam was arrested in 2002. It is acknowledged by United States and United Kingdom authorities that he was sent to a middle eastern country at the behest of the US (with the knowledge and assistance of the UK) to be tortured; that he was tortured for over two years including mutilation of his genitals and forced-stress positions; and that, eventually, he spent over seven years in prison, including in Guantanamo Bay. The charges (potentially carrying the death penalty) were eventually dropped although his detention continued beyond the decision to drop the charges.

Binyam’s case was unusual in that he was charged with offences. He sought the documents that would prove that he had been tortured and the charges were based on confessions made as a result of torture. When the US authorities refused to provide the material, Binyam commenced proceedings in the United Kingdom for access to the documents. The US government did everything it could to prevent the documents being released including blackmailing the UK government that it would re-consider its security relationship, if the UK courts published what was essentially anodyne information confirming that there was ample evidence that Binyam had been tortured.

This discussion of the bare facts of Binyam’s experiences in the courts of our two great allies provides an inspired introduction to the discussion of the war on terror in The Quest for Justice. By a simple but frightening example, it shows the two great democracies engaging in conduct that one would hesitate to expect even from regimes we normally think of oppressive. It illustrates graphically the descent to the bottom our public values have taken under the call for a war on terror.

The Quest for Justice goes on to discuss in detail the changes made to domestic law in the US, the UK and Australia as part of the war on terror. These changes include moves towards secret policing and coerced and secret gathering of intelligence and abandonment of the normal prohibitions against searches and seizures that are not authorised by judicial officers for cause shown. The abandonment of long held and hard fought for values in all of these changes, however, flow, sequentially and seamlessly, from the perversion of values displayed in the treatment of human beings of whom Binyam is but one example among many.

The Quest for Justice makes a point that the actions taken and the laws passed in the war on terror reflect the values of the society in which we live. We have to choose whether we want our society to be one that believes that torture, secret policing and arbitrary searches and arrests are standard fare. Crispin points out that the quest for justice is not merely a crusade for judicially sanctioned vengeance. Justice is not something to be imposed on others but is something which we all crave and to which we are all entitled. This means that the human rights of all must be respected even at the fault lines of our society. Like the founders of the new American nation, Australians, in their own way, claim to believe in the protection of the right to life, liberty and the pursuit of happiness.

Such rights cannot be taken for granted or they will be lost. We must choose what type of Australia we want for our children and later generations. The evidence displayed in The Quest for Justice suggests that choices are being made for us that may well be the wrong ones.

I am happy to recommend The Quest for Justice to all of the lawyers in my acquaintance. It deserves, however, a much larger audience. Every politician and every shock jock should retain a copy on their shelves to take down whenever they experience the temptation of a cheap and misleading line. On the evidence, the copies would be well thumbed.

I would go further. The Quest for Justice offers a discussion of questions that confront all of us on a regular basis. I would recommend it to every concerned citizen I have or haven’t met.