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Arms Control Law

Posts analyze and discuss legal issues relevant to arms control, including actions of the International Atomic Energy Agency and the dispute between the West and Iran over Iran’s nuclear program.

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Legally Weird

Bloggers comment on the legal angles of true stories in the news that are stranger than fiction.

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Medical Futility Blog

Posts take note of life-support disputes in the news, discuss scholarship from critical care ethicists and explore the legality and ethics of patients’ different end-of-life options.

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Chasing Truth. Catching Hell.

The aim of the blog is to help readers have a more informed opinion about the criminal justice system and the effects on those who come in contact with it.

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My direct exposure to the French criminal justice system is very limited. In December 1984, my family and I were trapped on a traffic island on our way to the Louvre. I was carrying our 19 month old son in my arms. My wallet was, very foolishly, bulging in my hip pocket. My wife was some metres ahead of me and not aware of a small group of gypsies who, spying an easy prey, descended on me and relieved me of the wallet. One of them had the cover of a sign protesting what was then happening in the former Yugoslavia.

Almost immediately an official car pulled over and one of its occupants made a call on a radio telephone. A group of Frenchmen raced across to the traffic island and apprehended the gypsies. A young Englishman, selling paintings outside the Louvre, lit out after the girl who had raced off with my wallet, caught her down by the Seine and retrieved the wallet and, having refused her offer of half the contents, brought it back to me. By then a van full of police had arrived, summoned by the radio telephone. We and the gypsies were bundled into the van and taken off to a nearby police station where I made a statement, a procès-verbal.

Ever hopeful of another trip to Paris, I asked the young plain clothes detective wearing jeans and taking the statement whether this meant that I would be needed to give evidence at the trial (and come back, I hoped, at the expense of the French State!). “Oh no” was her answer. My statement was now on the dossier and my oral evidence would not be needed.

I did return to Paris of course, some time later on the same holiday, found the English artist and bought a painting of the church of Sacré Coeur from him. I was never called as a witness unfortunately but I must say that I was very impressed by the speed and efficiency of the French criminal justice system. Bearing in mind the comparative nature of this essay, I must also pay tribute to the honesty of the young Englishman.

Now that misdemeanour would never have come before a cour d’assises1 in France, the court where French criminal juries are used. It would have come before a lower court and would, very likely, have been disposed of speedily. If you are interested and can track it down there is a good French documentary film, Le 10e Chambre, Instants d’Audience, which will show you how the system of summary justice for less serious offences works there. You can see extracts of it on YouTube but you will need to speak good French to follow it.2 

Those tribunals, where the vast bulk of criminal cases are dealt with, do not use juries and reflect more clearly the popular view of the French criminal justice system here. We think of it as an inquisitorial rather than an adversarial system and many believe inaccurately that it operates with a presumption of guilt rather than innocence. The more accurate analysis is that the French system requires the court to convince itself of the guilt of the accused. In that context another surprising feature of the French system for us is that there has been, historically speaking, no system for pleading guilty. The accused has to be proved guilty to the satisfaction of the court. The process of investigation will weed out many suspects whose prosecutions will not proceed.

I    Cours d’assises

That the French use juries, historically inspired by the English jury system and introduced in 1791 to bolster revolutionary democratic principles, is not so well known. Trial by jury is reserved for the most serious offences where the potential minimum sentence is greater than 10 years. Those offences are known as crimes in the French system. It is probably useful to call them felonies in English translation.3

Since 2011 the court hearing those charges is constituted by three judges and six jurors at the first instance. There used to be three judges and nine jurors. There is now, since 2000, provision for an appeal from such a court to an appellate cour d’assises consisting of nine lay people and three judges, an institution which I shall discuss shortly. Again, until 2011, it consisted of twelve jurors and three judges. Typically the serious felonies dealt with before these courts are murder, manslaughter, rape and drug trafficking.  

II    Focus on the investigation – production of the dossier

Another different feature of the French system compared to ours is that the focus is not so much on the trial as on the investigation of the charge through the court system, controlled, in cases such as these, by the juge d’instruction who supervises the collection of the evidence by the judicial police. The government of President Sarkozy threatened to replace the juge d’instruction by normal prosecutors, to much opposition from members of the judiciary and the general populace. That particular change was not made. I gather that the current administration supports the continued use of the juge d’instruction.

There is no right to silence as we conceive of it. A person under investigation may refuse to answer questions but the normal expectation is that he or she will respond to inquiries. If a suspect fails to do so adverse inferences can and will be drawn. There is also a system of criminal legal aid which is extensive and available from the start of an investigation.  During a typical investigation there will be several occasions when the accused will be examined by the juge d’instruction, normally with his lawyers present, in respect of the progress of inquiries by the police.

This is the process of the development of the dossier or file which lays the basis for the prosecution and of the evidence which will be led at the trial. The dossier will consist of documents similar to those gathered in a police investigation here, such as witness statements, photographs, scientific evidence including expert evidence and recordings including transcripts of statements made by the accused. It will also include the results of interviews before the juge d’instruction where the evidence, as it is gathered, will be presented to the accused and his comments requested.

A significant and separate part of the dossier will focus on the character of the accused, something which does not normally become relevant in our system until and if any sentence is to be imposed. The accused’s general character is regarded as relevant in the French system, not only in respect of penalty but also in respect of guilt on the basis that the court’s focus is on the nature of the person being charged as much as on the nature of the acts said to constitute the charge. In French terms they judge the person not the crime. The rules of evidence are far less technical than apply in common law systems and focus on relevance, taking a much broader view than in our system where, of course, we normally exclude “propensity” reasoning in considering whether a crime has occurred.

III    Expert evidence

Expert evidence will often be sought in the investigation and called at the trial. The courts themselves in France keep lists of relevantly qualified experts who are called on to examine the scientific issues in the individual cases. It is a mark of prestige to be appointed to the courts’ panels. Typically a case may require ballistic or other scientific evidence and there will often be medical and psychological reports concerning the condition of any victims and the mental state of the accused. The accused is given the opportunity before the trial to examine those reports and, if he or she wishes, to ask for further reports either from the same or from another expert to deal with particular issues.  

IV    The trial

At the trial the dossier will be in the hands of the three judges but is not made available to the jurors.  They are selected by a process similar to ours where jury panels are drawn from the electoral roll to sit in court for particular periods.

In a normal criminal trial conducted without a jury the dossier would supply the evidence required for the hearing without the need for oral evidence unless a party wanted to cross-examine a witness. The accused would still be interrogated by the judge. In jury trials, however, the important witnesses are called. That may reflect the orality connected with the English jury system as well as the wish that the jurors observe the witnesses to assist them in reaching their decision. The parties may agree that certain witnesses need not be called.  Accordingly, a significant body of oral evidence may be led before the French jury but much of it focuses on what may be called an audit of the dossier rather than a detailed exposition of all the facts contained in that file. In other words it is not necessary to lead orally all the evidence obtained by the investigation. The accuracy of the most important information on the file is what is most commonly addressed.  

The questioning in a French criminal court is traditionally conducted by the judge presiding. In 2000, their Code of Criminal Procedure was amended to permit the parties also to examine witnesses.4 Previously the system was that the judge would examine witnesses and parties could suggest lines of questioning to him or her. I understand that continues to be the normal procedure. There is, however, an increasing incidence of the use of cross-examination by the lawyers, perhaps stimulated by the expectations of French citizens used to seeing television crime dramas from English speaking countries.  

As I indicated earlier, there is no general right to silence in the sense that inferences can and will be drawn against an accused who does not answer questions. Normally the accused is interrogated before the jury, another significant distinction from standard practice in our courts where the calling of an accused is the exception rather than the rule. A complicating feature of the French system is that civil parties, those who have been affected by the crimes alleged, normally appear and pursue claims for civil damages or other relief in parallel proceedings at the same time as the criminal trial is heard.  

When the judges and jury retire together to consider their verdict, the issue is not whether the accused is guilty or not guilty. Rather the jury is asked to answer a series of questions relevant to the issues raised by the charge, the answers to which will determine whether or not the accused is guilty. The judges and jurors consider the issues in conference, including questions of penalty. To that extent, at least, the interaction between judge and jury is quite unlike our system.  

Four years ago my associate was a young French judge and one of the differences between our systems which drew his attention was the care we judges use to make sure that we do not speak to the jury except in the court room and then in a very formal way.  

Nor is the decision one that must be arrived at unanimously or by a majority of ten out of twelve as may occur in most cases here now. There has to be a two-thirds majority of the combined numbers of the jury and the judges. They need to be thoroughly convinced of the accused’s guilt, or in the French term, have an intime conviction of it, guilt, in the “sincerity of their conscience.” Before the court retires, the president of the court is required to read the following instruction which is also placed in the jury conference room prominently in large letters:5

The law does not ask the judges to account for the means by which they convinced themselves; it does not charge them with any rule from which they shall specifically derive the fullness and adequacy of evidence. It requires them to question themselves in silence and reflection and to seek in the sincerity of their conscience what impression has been made on their reason by the evidence brought against the accused and the arguments of his defence. The law asks them but this single question, which encloses the full scope of their duties: ‘Are you inwardly convinced?’.

The language is not the same as our formula of “beyond a reasonable doubt” but the gravity of the conclusion required is just as obvious.  

V    Appellate cours d’assises

Traditionally there was no appeal from a decision of the cour d’assises. That approach stemmed from the view that the jury’s verdict was inviolable, itself derived from the revolutionary belief that the voice of the people was equivalent to the voice of God.6 Yet, in 2000, the decision was made to create the appellate cours d’assises. This was partly driven by concerns raised by France’s accession to the European Convention on Human Rights and the view of the European Court of Human Rights that there should be a system of appeals and a system equivalent to providing reasons for decisions.  

What seems unusual to us is that the appeal is conducted as a retrial. The evidence is called again before a slightly larger jury, nine instead of six with the same number of professional judges. It is curious for us to see a trial court substituting its decision for an earlier trial court as part of an appeal process. We leave the appellate process to a panel of judges who review the evidence and the conduct of the trial below. Even if we do give our judges wide powers to set aside a jury verdict they will either quash the conviction or send the decision back to the trial court if a new trial is needed. Our courts of appeal sometimes receive fresh evidence but do not conduct a complete new trial.  

It seems likely that the sacrosanct nature of the jury’s verdict requires any review to occur before a court which also includes a jury, and, at least for form’s sake, a larger number of jurors. Moreover, there is no system in French courts to transcribe oral evidence. The appeal must, therefore, necessarily be one constituting what we would think of as a hearing de novo on fresh evidence. The record, the dossier, does not contain the oral evidence that was before the original jury. The appellate jury court does, however, receive evidence of the answers provided by the earlier jury. When it began, the appellate system was not used frequently but is used more now as the legal system becomes more familiar with the new institution.  

A final appeal, solely on points of legal principle, lies to the Cour de Cassation, France’s highest court in the normal court structure.7 

VI    Conclusion

The criminal jury trial in France began as a legal transplant from England. The revolutionaries believed in the importance of citizens’ involvement in the criminal trial to reflect democratic principles. The English system was an obvious model to adapt. The system is still an important aspect of French democracy and legal culture, although there have been differing dynamics affecting it over the years depending upon politicians’ perception of the severity on crime of judges compared to jurors. Limitations have also been imposed over the years on the types of charges that may be dealt with by jury trial.

In my view, the jury trial in our system similarly retains its importance as a protector of democratic principles. The fascination, as with many aspects of comparative law, lies in examining how an idea takes root in foreign soil and is transformed, often dramatically, by its adaptation to a different society. The examination of the French jury trial system throws an interesting light on how the closed bureaucratic investigative system, otherwise typical of French criminal law, can be opened to the scrutiny of ordinary French citizens, if rather differently from the way the jury operates in the common law.

From the comparative viewpoint understanding the French system can assist when considering possible changes to ours. The converse is also true. The introduction of cross-examination into the French system is one example of the common law’s influence there. Bron McKillop in his 1997 monograph, Anatomy of a French Murder Case,8 describes three features of the French system of which we could take advantage: greater control by the judiciary over the legality and propriety of the use of police powers to obtain evidence; the use of independent experts from panels supervised by the courts; and the ability to draw adverse inferences from the silence of the accused. England and some Australian jurisdictions have adopted legislative changes reflecting those sorts of concerns, sometimes controversially.  

While the International Criminal Court and the specialised international criminal tribunals do not use juries, their criminal procedure is essentially a hybrid of civilian and common law systems. They provide further examples of the internationalisation of legal norms. Complaints about the dilatory pace at which cases proceed in those courts suggest, however, that a greater focus needs to be placed on improving their procedures. Informed comparative analysis about ways to improve that system should start from a proper understanding of the procedural sources, a course which needs to draw on an understanding of how the rules reflect the particular societies from which they came. Legal transplants or hybrids do not always grow as expected. They may need pruning and fertilising to achieve their potential, a useful task for cooperation among comparative lawyers.  

The Hon Justice James Douglas*

 

 * Judge, Supreme Court of Queensland. This paper was first published in Pandora’s Box, the journal of the Justice and the Law Society, University of Queensland, and appears courtesy of the Society.

1. It means literally ‘the court of the seated’.  You can see in it the etymological origins of the English Assizes.
2. http://www.youtube.com/watch?v=tDUI3Z3FJ3c
3. Article 131-1 of the Code Pénal.  The French Penal Code and the Code of Criminal Procedure can be found here in French and English: http://www.legifrance.gouv.fr/Traductions/en-English/Legifrance-translations
4. See Article 442-1 and my paper given at a symposium organised by Bond University which    can be found at: http://archive.sclqld.org.au/judgepub/2012/douglas241112.pdf
5. Using the translation at the Légifrance website.  The original in French is: “La loi ne demande pas compte aux juges des moyens par lesquels ils se sont convaincus, elle ne leur prescrit pas de règles desquelles ils doivent faire particulièrement dépendre la plénitude et la suffisance d’une preuve; elle leur prescrit de s’interroger eux-mêmes dans le silence et le recueillement et de chercher, dans la sincérité de leur conscience, quelle impression ont faite, sur leur raison, les preuves rapportées contre l’accusé, et les moyens de sa défense. La loi ne leur fait que cette seule question, qui renferme toute la mesure de leurs devoirs: ‘Avez-vous une intime conviction?’.”
6. Vox populi, vox dei. See V.P. Hans and C.M. Germain, ‘The French Jury at a Crossroads’ (2011) 86 Chicago-Kent Law Review 737, 757.
7. They have a separate system of courts dealing with the review of administrative decisions which culminates in the Conseil d’État.  There is also a body called the Conseil Constitutionnel which reviews the constitutional validity of legislation.  
8.   (Hawkins Press, 1997) 100-102.

 

Select Bibliography

I have tried to limit the citing of references but the following sources located by my current associate, Mr Hamish Clift, have provided much of the information as have my conversations with and observations in court of M. Charles Tellier, my former associate, now a judge attached to the Court of Appeal in Nîmes. I am indebted to both of them. If you wish to read just one of the sources I would focus on the monograph by Bron McKillop of Sydney University, Anatomy of a French Murder Case, published in 1997. It provides fascinating detail and useful comparative analysis of the progress of a murder case through the French system from an author who has written frequently in the area.  

A    Books

Kock, G. and Frase, R., The French Code of Criminal Procedure (Fred B. Rothman & Co., 1988)

McKillop, B., Anatomy of a French Murder Case, (Hawkins Press, 1997)

B    Articles

Daly, M., ‘Some thoughts on the differences in criminal trials in the civil and common law systems’ (1999) 2 Journal of the Institute for the Study of Legal Ethics 65

Hans, V.P. and Germain, C.M., ‘The French Jury at a Crossroads’ (2011) 86 Chicago-Kent Law Review 737, 757

Leib, E.J., ‘A Comparison of Criminal Jury Decision Rules in Democratic Countries’ (2007-2008) 5 Ohio State Journal of Criminal Law 629

Marder, N.S., ‘An Introduction to Comparative Jury Systems’ (2011) 86 Chicago-Kent Law Review 453

McKillop, B., ‘Review of Convictions after Jury Trials: The New French Jury Court of Appeal’ (2006) 28 Sydney Law Review 343

McKillop, B., ‘The New French Jury Court of Appeal Revisited’ (2009) 31 Sydney Law Review 143

McKillop, B., ‘The Position of Accused Persons Under the Common Law System in Australia and the Civil Law System in France’ (2003) 26 University of New South Wales Law Journal 515

Spencer, J.R., ‘Anatomy of a French Murder Case by Bron McKillop’ (1999) 21 Sydney Law Review 332

Tigar, M.E., ‘A French White-Collar Trial: Quelle Difference’ (1999) 19(21) The National Law Journal 15

Recent interviews on ‘Mornings’ with Steve Austin on ABC Radio with Sofronoff QC, The Premier, the Opposition Leader and Davis QC.

The Queensland Premier in studio

Mornings with Steve Austin 25 March 2014 , 11:53 AM by Gabrielle Burke

Queensland Premier Campbell Newman joined Steve Austin in studio for a monthly catch-up.

The Premier spoke with Steve about the resignation of the Solicitor-General, his confidence in the Attorney-General Jarrod Bleijie, and the Safe Night Out strategy.

Click here to listen to the interview

Walter Sofronoff QC says Attorney-General Jarrod Bleijie can’t be trusted Mornings with Steve Austin 25 March 2014 , 11:18 AM by Gabrielle Burke

The former Queensland Solicitor-General Walter Sofronoff says the Attorney-General Jarrod Bleijie can’t be trusted.

Walter Sofronoff QC told Steve Austin the Attorney-General has betrayed a confidence by making public the details of a private conversation he had with the Supreme Court of Appeal Justice Margaret McMurdo.

Click here to listen to the interview.

 

 

Earlier this year, I, along with 41 other junior counsel, from around Australia, and with representatives from Fiji and New Zealand, took part in the Advanced Trial Advocacy Course run by the Australian Bar Association in Brisbane.

Many readers will remember Jeremy Sweeny recounted his experience of this course in the December 2013 edition of Hearsay in which he very ably described what it entailed. At the risk of repetition, in short it involves the examination of the source of advocacy and how we, as individual barristers, approach that task against the backdrop of an actual trial. Like last year the course was divided into civil and criminal streams: the civil case being a deceptive and misleading conduct action, derived from an alleged passing off of a software service; the criminal stream, a rape case.

All the things which one would do in a normal trial: opening; examination in chief; cross-examination and closing, were discussed, practised, and then analysed. We, like last year, were divided into groups of six and each assigned a coach to be with us for the duration of the course. In the group in which I was placed my “den mother” was Sandy Thompson QC. It perhaps says more as to the worth of this course than anything I am likely to say to recount that Sandy had coached this course last year and thought it of such worth that he volunteered to back up for this year’s occasion.

At each stage of the process there is a lecture about the general apposite principles to the task next to be undertaken and then it is straight to the tools when we “perform.” For this there are three “coaches” on hand, one of which is always your group coach. After each exercise two of the coaches provide a commentary after which you have the opportunity to review a video (did I mention you are videoed while doing all this) of yourself with the third coach in private. It is in many ways looking at yourself on tape that is the most revealing: apart from seeing how much we have all let ourselves go.

This year, in addition from silks from around the country and New Zealand and South Africa, Chief Justice Kourakis of the Supreme Court of South Australia, Justice Sloss of the Supreme Court of Victoria, Justices Martin and Boddice of our Supreme Court and Judge Dick SC of the District Court, gave up their time to act as coaches. Also on hand are voice and performance coaches and their insights can be a revelation. To round out the team were various volunteer “witnesses” and partners from Vincents and Korda Mentha who had, for the civil stream, provided forensic accounting reports and appeared as experts for evidence in chief and cross-examination.

Over the course of the week you get to spend time with most of the coaches in different contexts. My own experience included two private coaching sessions with the Chief Justice, and one each with Boddice J and Temby QC, something which I never would have thought would occur when I commenced my career at the bar some 19 years ago.

The course does require a lot of work (but it is fun as well) and it was a common refrain from those participating that it is harder than a regular trial. However it repays the effort and has an additional benefit, beyond improving your own skills — one which Jeremy touched upon in his review last year and to which I will add my endorsement — the camaraderie that you develop with counsel from other jurisdictions. In my group there were three Queenslanders, Liddy, Steele and me (all for the applicant in our case), joined by two counsel from Victoria and one from New South Wales (who were all for the respondent — so a State of Origin flavour could be detected) and we have kept in touch since.   

Finally it is something that benefits regardless of seniority. The average seniority for the course just gone was 20 years. As well many of the coaches will tell you that they get benefit from it also.

It is well recommended.

Mark Williams Barrister, Brisbane

 

It was announced in the Australia Day Honours List that the Honourable Justice Robert William Gotterson of the Court of Appeal had been admitted to the Order of Australia as an Officer in the General Division (AO).

Justice Gotterson was called to the Bar in 1976 and took silk in 1988. His Honour served as President of the Bar Association of Queensland from 1997 to 1999, having served on the Council and as Vice President from 1991. He was President of the Australian Bar Association from 1998 to 1999 and President of the Law Council of Australia from 2003 to 2004. His Honour has served in many other positions serving the profession and the administration of justice.

His Honour was appointed to the Court of Appeal in 2012.

The citation read:

For distinguished service to the judiciary and to the law, to legal education, administration and professional standards through a range of senior roles, and to the community of Queensland.

What has changed and what remains the same

Opening Address by The Hon Justice Susan Kiefel AC1  Bar Association of Queensland Annual Conference 2 March 2012

It is to be expected that the Bar in Queensland will experience change. The society within which it operates is not static. Some changes may be structural, such as the emergence of a national legal profession with attendant regulation. Some are evident in the day to day practices of barristers and concern the very nature of the work of the Bar. Yet some features of the Bar are so fundamental that they cannot be allowed to change, for they define the Bar as a profession. Without them the Bar comprises a group of people who conduct law as a business.

The theme of this Conference, ‘Practice in the Modern Era’, invites comparison with the past. In looking back I shall attempt to avoid the rosy spectacles of nostalgia.

The most obvious changes in recent times are the physical changes — to the places where barristers practise and the conditions in which they practise. The offices of the Bar Association of Queensland have also undergone a transformation. I take this opportunity to congratulate those who were involved in their planning and design. They have certainly taken offices out of the mundane and created something which is elegant yet functional.

Some groups of barristers in Brisbane, both old and newly formed, have relocated to new buildings in Turbot Street. In this respect the spread of chambers is not so different from what it was in 1975, when I was called to the Bar. In the 1980s there was an exodus, led by some fashionable silks, to the then new MLC Building, now the Hitachi Building. This heralded a new and much higher standard of accommodation, commensurate with that adopted by the larger solicitors’ firms. The standard perhaps reflected a self-perception of lawyers generally, and the Bar in particular, as successful.

The Queensland Bar then comprised only some 212 members. The regional Bar was small and was centred in Townsville and Rockhampton. There are now 859 members practising out of Brisbane. The regional Bar has grown steadily, particularly over the past 10 years or so, to 223 members.

Given the then size of the Bar, it is easy to understand why my generation recall the Bar being especially collegiate. The Bar tended to socialise more, I think. Senior members of the Bar were readily accessible to younger barristers and took an interest in them. Some of them took the trouble to provide relatively new barristers with work of some kind. Such work might take the form of ‘devilling’, or preparing a draft of a simple advice for a (small) proportion of a senior’s fee; or taking a ‘straw brief ’, which involved no fee but which allowed a new barrister to sit in court and learn court-craft firsthand.

These days the focus appears to be more upon barristers forming themselves into relatively self-contained groups; with an inbuilt hierarchy of senior counsel, more experienced juniors and very junior barristers. There are no doubt cost efficiencies and other benefits in barristers organising themselves in this way, but I would hope that the Bar, particularly the younger members of the Bar, is able to mix more widely. Here the role of the Bar Association can be important — in providing the opportunities for the Bar to get together in circumstances which encourage some familiarity and expose the younger members to those more senior, in order to maintain something of the collegiality of the Bar which was its hallmark in the past. This conference is an example of such an occasion.

Clearly the most profound change which has affected the Bar is to the nature of the work undertaken by barristers. I speak of course of Alternative Dispute Resolution (‘ADR’) and in particular mediation which has, for many at the Bar, become a significant part of their practice. It is a fact that in the earlier period at the Bar of which I have spoken, practice at the Bar was largely concerned with appearing in court. That was its great attraction. Now a barrister requires a mix of skills.

There was sufficient work, in the late 1970s and the 1980s, at all levels of courts, to provide something of a training ground for young barristers. New barristers learned basic trial skills in the Magistrates Court — doing mostly motor vehicle accident cases of small monetary value, for a correspondingly small fee. Matters heard in Chambers in the District Court provided a grounding for the more complex work in Supreme Court Chambers, where young barristers would often have their first chance to work with a silk. However, if you were not briefed to appear with a silk, their appearance on a Chamber day was not very beneficial, for the seniority rule was strictly applied and the most junior barrister might not be heard until 4.00 pm and sometimes not even until the next day.

There was no shortage of trial work. It is worth reminding ourselves that a long trial then was about four days. In the identification of the factors which were productive of shorter trials than those of today, the finger is often pointed at the development of more efficient methods of storing and reproducing documents. But however efficient the technology, machines cannot be entirely to blame. They do not run themselves. Their overuse may be the result of a non-discriminating mind.

It may also be suggested, again rather simplistically, that society and therefore litigation was not so complex. This contains a seed of truth. But I believe the approach to litigation was different in a key respect. Lawyers — solicitors and barristers — tended to run trials on what were the real issues in dispute, the issues which would be productive of success. This may in large part have been the result of there being so much litigation that it was not considered fruitful to cogitate on numerous possible alternative pleas when there was a clear path home. Or it may have been the result of a mindset.

In any event, the result was that briefs were not then delivered on trolleys. Some care went into the preparation of a brief to counsel, including the reduction, not the proliferation, of inessential documents. So serious was the drawing of a brief taken that some solicitors were prepared to pay very junior counsel to prepare them — at least those to be delivered to Peter Connolly QC. I should add that their principal motivation was to avoid having an inferior brief returned to them in the most direct manner. (It is difficult to imagine how briefs today could be thrown.)

ADR is a relatively recent phenomenon, but it has changed the way litigation is approached and it has changed the work of the Bar.

ADR, more particularly mediation, was introduced partly as a response to the courts being overwhelmed with civil trial work, so much so that trial dates could often not be obtained for some years. The number of judges, who could deal with this perceived ‘blow- out’ in litigation, had not been substantially increased for years. It was also said, somewhat paradoxically given the flood of litigation, that the cost of litigation had become prohibitive. To those factors it may be added that there were some who believed that it was preferable for society that people attempt to resolve their disputes by negotiation where possible. No one could gainsay this.

Thus, ADR was intended to encourage a conciliatory approach to disputes, to weed out those disputes which did not warrant the full scale adversarial processes of a court, and to reduce the pressure on the resources of the courts.

The skills required for mediation differ from those required of an advocate, although some qualities of an advocate are no doubt useful in mediation. It is to be hoped that barristers remain conscious of this and that in the regular conduct of mediation they do not forget the very different skills required for a courtroom.

No one could suggest that a mediated outcome is not of benefit to all parties. At a personal level, they are spared the not inconsiderable stress of litigation. But assessing the other benefits of mediation requires comparison against some kind of benchmark, and the most obvious is the likely outcome of litigation, taking into account the attendant risks and the costs associated with it. In that sense, litigation is never entirely out of the picture.

The process of litigation does not of course allow lawyers as much input into the outcome as does mediation. The shape of litigation is influenced by the decisions taken by lawyers in framing a case, selecting witnesses, and the like. But the outcome of a case is not assured and all the advocate’s skills must be brought to bear to achieve the best outcome for the client. In mediation, lawyers, in their capacity as mediators or advisors, are in a stronger position to influence or determine the outcome. Care must necessarily be exercised by them to ensure that the decision ultimately taken by the parties is theirs.

A barrister acting as a mediator may lose some of the essential characteristics of a barrister in conforming to the role of a mediator, whose task is to facilitate an outcome where possible. A barrister giving advice to a party to a mediation is in a different position. Here the barrister must fulfil the fundamental obligations of the profession — to give balanced, objective and independent advice, which is to say advice which is not committed to achieving an outcome.

There will always be some cases where litigation is likely to produce greater remedial benefits for a client than litigation. The obligations variously imposed upon barristers to consider mediation are not intended to create a mindset which rejects litigation as a method of resolving a controversy in every case. However, the reality is that the cost of litigation and the risk of exposure to an order for costs are significant, sometimes insurmountable, hurdles to a recommendation that litigation be pursued. In this regard nothing has changed. The cost of litigation has been on the agenda since the 1980s. It must be acknowledged that the number of competing interests which seek to be protected appear to be such as to deny the possibility of a solution to the issues surrounding costs. It is not apparent whether any real determination to effect change remains, or whether the high cost of litigation is now simply accepted as a fact, about which nothing will be done.

In making this comment, I do not undervalue the significant contribution made by the Bar and by solicitors’ firms to pro bono work. But pro bono work was undertaken principally to meet the progressive withdrawal of funding of legal aid by federal and State governments. It is not an answer to the problem of the cost of litigation. I was interested to hear that the new Commonwealth Attorney-General has spoken of revisiting funding arrangements for legal aid,2  but there is nothing to indicate fundamental change is in the air.

There has been no shortage of discussion over the years about costs. I do not pretend to have the answers, but there are clearly some features of litigation practice which cry out for comment. Two of which I shall speak are inter-related: the identification of the real issues in dispute and discovery.

Discovery is now commonly a large endeavour, engaging the efforts of many, with attendant costs and delays to the process of litigation through the courts. I have only on a very few occasions seen a crucial document emerge during the course of trials, and even then that did not occur as a product of initial discovery. Perhaps the time has come to ask whether discovery is worth its cost.

The Australian Law Reform Commission has recently published a report on the management of discovery3  and the Australian Institute of Judicial Administration and the National Judicial College of Australia have recently conducted a Seminar devoted to the topic. These are but a few dialogues about the problem. One of the threshold questions posed in the Seminar was whether discovery is required at all. It was suggested that, if it is, the question may be how to ensure that the time and cost associated with it are proportionate to the matters in dispute. That suggestion, that cost and benefit need to be measured, points to the problem rather than its solution. An approach which is both principled and practical is required. The very basis of discovery, including notions of relevance, requires reconsideration. A widely stated obligation to discover encourages uncritical minds to be brought to the task of discovery.

A number of reasons have been advanced as to why trials are now more complex and therefore lengthy and costly. We might begin by asking ourselves whether the fact that so much more litigation is complex should be accepted. Is it truly the case that the nature of litigation has altered so much, or is it the approach lawyers take to it that is productive of less simple, and direct, courses of action being taken?

It may be accepted that the sheer volume of statutes, particularly in the federal sphere, has added another dimension to litigation in the last 25 years or so. And I accept that within that period there was a time when it seemed that some areas of the law were in a state of flux, thus reducing a lawyer’s ability to predict. But factors such as these cannot really account for the shape which cases now take. That inevitably comes down to fundamental decisions about pleading. It has been obvious to judges for a long time now that there is a habit which has been growing in the profession of pleading multiple causes and creating unnecessary issues.

As I was revising this speech I chanced upon some observations made by the Chief Justice of the Federal Court of Australia in a judgment involving a regulator, who should of course be an exemplary litigant:4

I should note here that, at trial and in this Court, the case was complicated by [X’s] presentation of a number of arguments. Some of these arguments are strong, while others are not. The presentation of a range of alternative arguments is not apt to aid comprehension or coherence of analysis and exposition; indeed, this approach may distract attention from the central issues in the case.

The arguments to which his Honour referred followed a pleading entitled ‘Further Re- Amended Second Substituted Statement of Claim’. Polite comments such as his Honour’s are likely to mask the very real sense of frustration of judges when faced with a hydra-headed pleading of, say, 200 paragraphs, densely cross-referenced, which require the best part of a day to deconstruct, when they know full well that somewhere in there is a fairly straightforward claim or claims. That will be the claim which provides the basis for the judgment. Proof of the relative narrowness of most cases lies in the law reports. The cases reported rarely reflect the complex pleading which commenced them. Mostly the courts will discern the real issue after much time and effort in court and out — but there is always a chance that the real issue will be lost sight of.

Pleading unnecessarily complex cases may result from too much input from too many people. Effective pleading requires someone to be in control, to take responsibility for the outcome. This was the intention of the rules of court which require the pleader to be named. The practice does not make litigation, for the client, the lawyers or the court, easier or any more likely to be successful. Yet there appears to be a growing reluctance by pleaders to make hard decisions and limit a case to its essentials.

What I have said about the standard of professionalism and independence required of a barrister in the conduct of litigation is something that cannot change if the Bar is to endure. Dixon CJ went so far as to say that a counsel (and I quote) ‘who brings his learning, ability, character and firmness of mind to the conduct of causes and maintains the very high tradition of honour and independence of English advocacy, in my opinion makes a greater contribution to justice than the judge himself.’5  It is not clear what inspired Sir Owen Dixon to such uncharacteristic raptures. I am more disposed to judicial restraint on this subject. Yet it must be acknowledged that a case well framed and presented — by the identification of real issues, to which relevant evidence is led and which is followed by succinct and well researched argument — is of enormous assistance to courts. But that is not the only reason why judges such as Sir Owen Dixon have been moved to speak in this way. It is in large part because judges recognise the importance of the role of the advocate in an institution which is fundamental to our society. Members of the Bar should not lose sight of this.

Practice in court has altered markedly over the years, by the decline of oral argument. Much has been said on this topic. The impression sometimes gained is that the mastery of written outlines of argument distracts attention from the presentation and structure of oral argument.6 Yet the two methods should work in tandem. The High Court has recently introduced a requirement of a very short outline which is produced prior to commencement of oral argument. This appears to provide a helpful guide both to counsel and to the Court in following argument, which often used to depart from the longer written argument, which had been prepared some time before the hearing.

As to the oral aspects of evidence, I shall say only that not all judges are convinced of the usefulness and efficiency in all witnesses’ evidence-in-chief being given in writing. The skills required for the taking of evidence-in-chief are considerable, as are those for cross- examination, and the risk is they will be largely lost if the current method is utilised in nearly every case.

The appointment of silks is in question again. On this subject it may also be timely for the Bars in Australia to consider what the appointment means — not for the individual but for the Bar. This may be especially important if the Bar is to continue to seek a role for the judiciary in the process of appointment.

The appointment of senior counsel is not just an acknowledgement of a person’s ability. It is an acknowledgement by the Bar and judiciary that a person has qualities of leadership. A senior counsel is intended to lead others in court, and to be a leader by example at the Bar — by participation in matters affecting the Bar, and by their encouragement and advice to the very junior at the Bar.

The two counsel rule was useful to define the role of a senior counsel as a leader. It was accepted that a person appointed as senior counsel would ordinarily only appear in matters which warranted two counsel. The abolition of the rule permitted a senior counsel to appear alone, in a case where a senior counsel was, but a junior counsel was not, essential. But this could not alter the expectation, arising from the history of the institution of senior counsel, that they would not appear alone. To do so regularly would diminish the perception of that person as a leader.

There is emerging in Australia, but I believe less so in Queensland, a practice of senior counsel appearing together. This may present a contradiction, at least for the one who is being ‘led’ by another, usually more senior, senior counsel.

It must of course be acknowledged that there have always been cases which are so large and complex as to require more than one senior counsel. In such cases labours are often divided by reference to discrete issues. There may be occasions where a newly appointed senior counsel may feel obliged to conclude a matter which he or she commenced as a junior. But I am not talking here of such cases. The current practice extends well beyond these. The practice would seem to diminish the basis for appointments to a mere recognition of a level of ability. If that be so, the question is, whether that is sufficient for its retention.

The role which senior counsel can have for junior members of the Bar was evident when so many women senior counsel were lost to the Bar on their appointment to the Bench soon after they took silk. The acceptance of an appointment is not the issue. It is difficult to decline such an appointment. Those appointing do not, however, have the welfare of the Bar in mind. The result was to deny to younger women and men at the Bar the benefit of the presence and models of senior women barristers.

In the course of preparing this speech I read what others have said on occasions such as this, when reflecting upon changes which have occurred to the Bar. One theme which emerged from speeches to Bar Associations in the USA in the last century was the sense of loss of the former public influence that lawyers had. Lawyers were influential in times past in Australia. The part they played in the drafting of our Constitution is an example. This may not be so much the case now, except for lawyers who become politicians (and there is certainly no shortage of them, it seems). And in former times influence was more likely to have been wielded by particular individuals, like Sir Samuel Griffith. Now the Bar Associations speak for barristers and it does so often, in commenting on matters such as legislation, the judiciary, the regulation of the profession and intrusions into civil liberties.

Little, if any, acknowledgement is given for the considerable work carried out by the professional associations, or for the considerable work undertaken, even by the most highly paid senior counsel, pro bono. These are contributions made, collectively and individually, to society. They acknowledge that the Bar understands the importance and responsibility of its part in that society. To my mind, there is no need for barristers individually to undertake a greater public role. There is no greater contribution that a barrister can make than to maintain the Bar’s standards of professionalism, integrity and independence. That is how the Bar continues to be relevant. In those respects, practice at the Bar must remain the same.

 

1. Justice of the High Court of Australia. This article was originally published in the Queensland Legal Yearbook 2012 published by the Supreme Court of Queensland Library and appears by courtesy of the Library
2. Attorney-General’s Office, ‘Review of legal assistance services’ (Press Release, 30 January 2012).
3. Australian Law Reform Commission, Managing Discovery: Discovery of Documents in Federal Courts, Report No 115 (2011)
4. Australian Securities and Investments Commission v Fortescue Metals Group Ltd (2011) 190 FCR 364 at 371[16].
5. Woinarski (ed), Jesting Pilate, 2nd ed (1997) at 247—248
6. High Court Rules 2004, r 44.08.1

I begin by acknowledging the traditional owners, the Turrbal people, here on the north side of the Brisbane River on land once known as Meanjin. They prospered here for tens of thousands of years before European contact, with women Elders offering younger clanswomen advice and support whilst sharing bush tucker and laughter. I acknowledge their Elders, past and present, as we continue that ancient tradition. 

Since we met last year, the following women have been admitted to the Bar:

Laura Niel Sarah Minnery Simone Fraser Fiona Lubett Lynette Galvin Julie Kinross Grace Lawson Denika Whitehouse Rebecca Harding Anna Bertone Florence Chen Kasey McAuliffe.

As for new women judicial officers, it is a much shorter list! There is but one, former barrister, Magistrate Penelope Hay. 

During the coming year, we lose two senior women judges: Justice Margaret Wilson and Chief Judge Patsy Wolfe. 

Next month, Justice Wilson retires after a long and exemplary legal and judicial career. With her accustomed modesty, she has eschewed a valedictory ceremony, but I cannot let this evening pass without thanking her for her magnificent professional contribution. Margaret graduated from UQ with a Bachelor of Arts and a Bachelor of Laws with honours, winning glittering prizes in both Japanese and law. She came to the Bar in March 1979 and took silk in 1992, serving on the committee of the Bar Association as a junior and as a silk.  She was also a member of the Civil Procedure Division of the Litigation Reform Commission; the board of Legal Aid Queensland; and the Incorporated Council of Law Reporting. She chaired the Queensland Child Care Review Tribunal and co-edited and contributed to Ryan, Weld and Lee’s Queensland Supreme Court Practice. In August 1998, after almost 20 years as a barrister, she was appointed a Supreme Court judge, serving also as the judge constituting the Mental Health Court; a commercial list judge; and an additional judge of appeal. She was a member of the Rules Committee for 12 years and the judges’ building committee which guided the construction and fit-out of our spectacular court building. During her 15 years judicial service, she has presided with wisdom, patience and courtesy over countless cases, including some landmark ones like S v The Corporation of the Synod of the Diocese of Brisbane,1 a civil jury trial concerning a negligence action brought by a former high school boarding student who was sexually assaulted by a teacher. In 2003 she was awarded the Centenary Medal. It is fitting tonight to share with you her past advice to young women entering the profession:

"The law truly is an honourable and satisfying profession. As you contribute to it, it will reward you not only with a livelihood, but also with wonderful opportunities to serve society, whether you act for business, government, ordinary citizens or the disadvantaged. Never lose sight of the real spirit of professionalism. Savour it."2

Justice Wilson will be missed but her fine judgments will ensure she is not forgotten, long after those present tonight have retired from the law. 

Chief Judge Wolfe, too, has had a distinguished career, culminating in her stewardship of the District Court over the past 15 years. She does not retire until a significant birthday in October and has made me undertake not to wax lyrical tonight on her many achievements. I made that concession on the basis that there will be an opportunity for others to do this later in the year. With the Chief Judge’s retirement, the profession and the community will lose yet another iconic female judge and the District Court one of its most passionate and successful champions.

And speaking of passions, I turn now to mine: the need for gender equality at the Bar and the Bench. Let me remind you why it is important that women are approximately equally represented in these institutions and why I am concerned that this goal remains elusive, although for decades more women than men have graduated from Queensland law schools. It is not simply because I want you all to have lucrative, influential careers, although there is nothing wrong with that. It is because lawyers, together with an independent judiciary, play an institutional role in Queensland’s democracy. Lawyers have a fiduciary duty to protect and pursue their clients’ rights under the rule of law, unswayed by the power, privilege or wealth of others, and subject only to their duties to the court as officers of the court. This sometimes means appearing for the most unpopular and despised members of society. Ensuring access to the rule of law for all, even unpopular litigants, strengthens our democratic institutions and the broader community. Lawyers also play a critical role in ensuring that the separation of powers between the three branches of government is maintained and, in particular, that the judiciary is independent of both the legislature and the executive. 

I am especially proud to see women lawyers fulfilling this role. A topical example was last year’s Queensland Law Society President, Annette Bradfield, when she raised concerns about recent legislation which purported to transfer judicial power to the executive government. Those concerns were well-founded as the Court of Appeal later found in Lawrence.3 Barristers, as specialised legal advocates, are particularly well-placed to take on this institutional democratic role. That is why, if women are to fully embrace their democratic rights, they should be represented approximately equally with men, at the Bar and in the three branches of government, including the judiciary.

Report card time. First, the Bench. Of the Queensland-based judges in the Commonwealth jurisdiction, women comprise 17 per cent of Federal Court judges; 33 per cent of Family Court judges and an impressive 46 per cent of Federal Circuit Court judges. 

Women presently comprise just under 30 per cent of Queensland Supreme Court judges; 20.5 per cent of District Court judges and 34 per cent of magistrates. The current Queensland government, since coming to office about two years ago, has appointed 17 judicial officers: four Supreme Court judges, including two to the Court of Appeal; three District Court judges, including the Chief Magistrate; and 10 magistrates. All but one (Magistrate Hay) are men. This means that only 6 per cent of these appointments are women.  Whilst in no way detracting from the talents of these new judicial officers, I am concerned about the lack of gender diversity. If the trend continues, the number of Queensland women judicial officers will decline alarmingly as, shall we say, we more experienced women judicial officers continue on the path to retirement. This decline in female judicial appointments is not because of any dearth of talented, experienced and in every way meritorious women candidates. There were many women suitable for appointment to almost all of these roles. Then why only six per cent? Could it be because of an unconscious bias by those recommending and making the appointments so that well-qualified women candidates are invisible to them and not considered?

Justice Ruth McColl from the New South Wales Court of Appeal, the first female president of the New South Wales Bar Association, recently expressed her concern about the scrapping of the judicial appointments process in Commonwealth courts,4 a process which appears to have greatly increased the number of female judges. She suggested that this may result in a less transparent appointments process and fewer Commonwealth women judges.5

The recent paucity of female judicial appointments in Queensland, despite the large talent pool of women candidates, suggests the time may be right to consider establishing a Queensland judicial appointments process which makes visible to the judge-makers these suitably qualified women candidates who apparently have been invisible over recent years.

And now the Bar. The Bar Association of Queensland’s membership is 1,376, of whom 304 or about 22 per cent are women, slightly up from last year’s 20.9 per cent.  Of Queensland silks, nine or almost nine per cent are women, up from last year’s five per cent. Four women Queen’s Counsel were appointed during the year. They are Soraya Ryan QC, Catherine Carew QC, Rebecca Treston QC, and Helen Bowskill QC. 

In the last financial year, the percentage of female counsel appearing in the Queensland Court of Appeal was 14.7 per cent, a pleasing increase from 5.4 per cent in 2005-2006, but still significantly below the percentage of women at the Bar. 

The Law Council’s 2004 Equal Opportunity Briefing Policy was re-badged in 2009 as the Equitable Briefing Policy. It is not affirmative action but a measure designed to make visible suitable women barristers who have been invisible to those making briefing decisions. It requires consideration of whether a woman barrister is the best person to brief; keeping statistics as to the number of women briefed; and annually reviewing those figures. Many Queensland solicitors’ firms have adopted the policy, but I have been unable to access the annual reviews. It may be responsible for the gradual improvement in the statistics to which I have referred, but progress is glacial.

The continued under-representation of women at the Queensland Bar, from where the bulk of senior judicial officers come, is not just a women’s issue. It diminishes the whole Bar, the legal profession and the broader community. 

So much has been recognised by the New South Wales Bar Association with its:

• adoption of the Equitable Briefing Policy;
• Women Barristers Forum;
• effective mentoring program in which senior women barristers mentor women in their second and third years at the Bar;
• in-home child care scheme providing emergency back-up child care within one hour; and
• liaison with law schools, introducing women law students to women barristers.

For some years, the Victorian Bar Council, with the encouragement of Victoria’s Chief Justice, Marilyn Warren AC, has been a leader in gender equality practices. In November last year, under the stewardship of Bar President, Fiona McLeod SC, it adopted the Quantum Leap program, which:

• measures numbers of women at the Bar and their comparative earnings by seniority and area of practice;
• encourages silks to pledge to promote equality and diversity;
• promotes bias-awareness training across the Bar;
• provides formal and informal mechanisms for reporting bullying, harassment and discrimination;
• establishes a mentoring program for women barristers at key career milestones of two and seven years, and to senior junior women;
• organises re-engagement round tables to support women barristers on career breaks; and
• undertakes exit surveys of women leaving the Bar to identify the drivers of attrition and factors assisting in retaining women barristers.

Earlier this month, the Law Council released its National Report on attrition and re-engagement which encompasses strategies targeted at cohorts including former, current and aspiring barristers.6

Closer to home, the Bar Association of Queensland is also concerned about the low proportion of women members. As long ago as 2004, it adopted the Equal Opportunity Briefing Policy. But while this is strong, moral leadership, Bar Associations do not hand out briefs.  More needs to be and can be done. The four women on the Bar Council (Liz Wilson QC; Jacoba Brasch, Ruth O’Gorman and CEO, Robyn Martin), together with President Peter Davis QC and Vice-President Shane Doyle QC, are meeting with me next week. They are committed to developing policies to address the issue. When we meet next year, I hope we will be marvelling at the successful outcomes from this process.

I conclude on an even more positive note, at least for the moment. The Commonwealth Attorney-General’s Department in its annual report publishes statistics concerning the briefing of counsel. In the last financial year, it briefed 73 women barristers, 41.48 per cent of all barristers briefed. The value of the briefs to female barristers was almost $1.45 million, quite a bit more than the $1.23 million in briefs to male barristers. I will be watching this table and reporting back next year!

The Hon Justice M A McMurdo AC*

 

∗ President, Court of Appeal. This is the text of an address to Queensland women judicial officers and barristers delivered 21 March 2014, Common Room, Inns of Court, Brisbane.

1. [2001] QSC 473.
2. A Women’s Place: 100 Years of Queensland Women Lawyers, Ed Susan Purdon and Aladin     Rahemtula, published Supreme Court of Queensland     Library, 2005, 608.
3. Attorney-General (Queensland) v Lawrence [2013] QCA 364.
4. Other than the High Court of Australia.
5. The Honourable Justice Ruth McColl AO, ‘Celebrating Women in the Judiciary 2014’ (Address to New South Wales Women Lawyers, Union, University and Schools Club, 27 February 2014).
6. Law Council of Australia, ‘National Attrition and Re-engagement Study (NARS) Report’, 14 March 2014.

The Amnesty International Queensland Legal Network (AIQLN) invites legal professionals and students to its formal launch from 6:00PM on 28 March 2014 in the Banco Court, QEII Courts of Law Complex, 415 George Street, Brisbane.

Peter Callaghan SC, distinguished barrister and President of the Law & Justice Institute (QLD), will deliver the keynote address. A recently-formed official action group of Amnesty International, the AIQLN aims to educate and activate legal professionals to speak out against human rights violations and to deploy the talents of the legal profession to support Amnesty International Australia. Due to limited venue capacity, please RSVP by Wednesday 26 March 2014 to aiqldlegalnetwork@gmail.com.

The central points made by Madar in this biography go far beyond an argument that Manning’s disclosure of secret documents was justified and his prosecution and persecution are not. The argument that is developed amounts to a strong critique of establishment even liberal establishment values in the United States. Since so much of what is said and done in Australian politics and public life mimics events in the United States, the points are equally relevant here.

One matter that Madar criticises is a tendency by commentators to explain Manning’s behaviour by reference to his sexuality including his desire to change his gender. The evidence, Madar suggests, is contained in Manning’s own words in the transcription of the online conversations he had with Adrian Lamo, the renowned and convicted hacker, who reported his confessions to the authorities. Manning’s motivations were political and patriotic. He had wanted to serve his country. He was appalled by his country’s actions as they were revealed by the information available to him through his work at the Forward Operating Base Hammer in the Mada ‘in Qada desert east of Baghdad in Iraq. He hoped that, by revealing the information, the public reaction would be such that the worst of the outrages would be brought to an end.

These are motives which are rational and need no pseudo-psychiatric explanation by commentators.

Another focus of Madar’s critique is the hysterical and hypocritical reactions of officials to the WikiLeaks disclosures sourced through Manning. At times, the same elected officials, including Hilary Clinton, Joe Biden and Robert Gates, made contradictory statements about the effects of the leaks. Each of those three made statements that, on the one hand, blamed Manning for wrecking US interests and, on the other, not long afterwards, dismissed the effects of the leaks as negligible.

In the same way, claims that leaks would endanger lives of informants have proved, on investigation by journalists speaking to the informants concerned, to have been baseless. Two examples were an Italian diplomat, Federica Ferrari Bravo and a former Malaysian diplomat, Shazryl Eskay Abdullah, both of whom were bemused that anyone would have found anything they said either memorable or likely to put them at risk.

Another aspect of the hypocrisy criticised by Madar concerns the way in which the rich and powerful leak to journalists, repeatedly, for political gain without anyone showing either concern or the desire to call for their heads on a plate. Madar refers to former White House official, Rahm Emmanuel, whose leaking was so notorious that his colleagues and successors openly joked about it with journalists. Leaking, breaking the laws on which government secrecy is based, is only regarded as a crime if you are seen to challenge the orthodoxy in Washington.

Such double standards call into question the very notion of the rule of law.

Madar also criticises the mainstream US media for failing to report with any focus the effect of the leaked material and the extent to which it contradicts and exposes the dishonesty in the official versions of historical events. Madar mentions aspects of the leaked evidence which exposes the extent to which civilians have been targeted and killed in Afghanistan and Iraq. He mentions the extent to which the positive spin on the war in Afghanistan has been shown to be nothing more than spin. He mentions the official estimate of Iraqi deaths at 109,000, including 66,081 civilians. The existence of this official estimate had, for years, been denied.

Another lurid example is a house raid by US forces in Iraq which involved the executions of one man, four women, two children and four infants. The documents released showed that, while the US had launched an airstrike to destroy the house, local autopsies showed that each of the dead had been shot at close range while handcuffed.

Perhaps of most concern was the evidence of extensive torture by Iraqi authorities of prisoners in their care. This included sexual torture, cutting off of fingers, acid burns and fatal beatings. Although this conduct was well known to US authorities, a secret “Fragmentary Order 242” ordered US servicemen to ignore the conduct of the Iraqi jailors and to continue to pick up prisoners and to hand them over to be tortured.

All this is known. But, for a handful of dedicated journalists and activists, public life goes on in the US without these lurid facts ever being raised as relevant either to the conduct of government or the narrative by which politicians seek to disguise the truths of recent history.

Another aspect of the Manning revelations filled in some of the information gaps concerning conduct of the “legal black hole” at Guantanamo Bay in Cuba. The Manning documents spelled out very clearly the extent to which the “worst of the worst” categorisation of prisoners at Guantanamo Bay was so inaccurate as to amount to a lie told, inter alia, to justify the torture and degrading treatment systematically imposed at Guantanamo.

Again, Madar’s critique goes deeper. He draws a connection between Guantanamo, the abuses at Abu Ghraib and the torture of Bradley Manning, himself. Madar sets out in detail the cruel and degrading regime to which Manning was subjected and the way in which, against all available medical advice, he was kept on suicide watch in order to make his life in custody more unbearable.  Although such conduct has been condemned by many, Madar points out that many of the criticisms are on the basis that the actions are an exceptional breach of American values.

Rather, the excesses that have come to light are merely the expression of American values as reflected in the day to day operation of every prison operating in the US and accepted without qualm by the majority of the American population.

One observation is that, just like the slaughter at My Lai, no one gets punished. Even when there is a fall guy, he gets to spend some time on house arrest and then walks free.  

More fundamentally, the use of torture, generally, and the use of torture to obtain confessional evidence are part of the mainstream prison system in the US. Madar refers to numerous documented examples of such treatment. Solitary confinement, notes Madar, has increased in frequency in recent decades even more than the prison population has grown. In California, for example, prisoners are kept indefinitely in solitary confinement not as a large resort management tool but, for indefinite periods, in every case a prisoner is suspected of being a member of a gang.

And, because the growth in the US prison population is, in many respects, attributable to the racist war on drugs, it is Afro-American and other minority groups who are subject to torture, and cruel, inhuman and degrading treatment.  

Despite criticism by international bodies of the routine and broad scale use of solitary confinement at all levels of the US prison system, the cruel and inhuman treatment inflicted upon domestic prisoners does not give rise to the type of outrage that arose from the exposure of the excesses at Guantanamo and Abu Ghraib.

Madar argues that, until politicians, journalists and media outlets, academics, activists and commentators become serious about preventing torture and cruel, inhuman and degrading treatment at home, abuses will occur whenever the US gets to detain people, including foreigners and others perceived as enemies of the state.  

The Passion of Bradley Manning is an important book. The mainstream media, both in the United States and Australia, failed to seriously cover the disclosures that Bradley Manning made possible. The same media failed to debate seriously the inequity of prosecuting Pfc Manning when they, themselves, rely on the leaking of secret information by people in authority on a daily basis.

Perhaps, most regrettably, the mistreatment of Bradley Manning by army prison authorities has hardly been mentioned.

As a polity, we are the victim of the secrecy imposed upon us by our government. To know the truth, as opposed to a narrative that has little contact with reality, we need to appreciate people like Bradley Manning and to stand against their persecution.

The Passion helps us understand why.

Stephen Keim SC Angourie

— A Perspective from the Bar

For practising barristers, the courthouses of Queensland are not regarded as mere workplaces or offices of government. They have a special character — both practical and symbolic — as the places which have been historically set apart for the delivery of justice according to law.

The public proceedings in court buildings are usually adversarial and stressful — for the complainants who have been injured or wronged, for the defendants who face prison or ruin, for the witnesses whose memories and honesty are being publicly tested, for the lawyers whose efforts may affect the fate of their clients and for the judges and jury members who must decide the fate of others.

These proceedings are conducted in a principled and ritualised way — before a Judge who has sworn an oath to do equal justice to all persons, through lawyers who have sworn oaths of honesty and fidelity, and through the testimony of witnesses who have sworn oaths of truthfulness.

To serve their purpose, court buildings should provide a practical environment in which proceedings of this nature can be safely and efficiently conducted. Ideally, their architecture should also convey — to those directly involved in court proceedings and to society as a whole — the independence and authority of the courts and their historic commitment to resolving disputes on a fair and principled basis.

There are about 1000 practising barristers in Queensland, each with their own views as to which of the State’s courthouses best achieve these objectives.

Their preferences are often quite personal. So the purpose of this essay is not to suggest that the Queensland Bar has any single, unified view about the merits of the former Law Courts complex in Brisbane or the new Queen Elizabeth II Courts of Law. It is simply to record some of the views which have been widely expressed within the Bar, at the present point of transition from the old to the new.

The Bar’s perspective of the courthouses is largely from the viewpoint of a regular visitor, rather than as a permanent resident. For this reason, perhaps, it is difficult to recall any concern being expressed about the lack of natural light in the courtrooms of the former Law Courts complex. Indeed, this feature had its advantages. On most levels of that building, the layout allowed visitors to assemble outside the courtrooms in an attractive gallery area overlooking a shaded garden courtyard, which created the centrepiece of the complex. The natural light, the garden outlook and the extensive use of carpet and fabric all had a calming effect. When visitors were required in court, however, there was a marked transition, as they passed through heavy doors into a formal, internal courtroom, which was designed to focus attention on the bench and the witness box. For lawyers and laypeople alike, the change in atmosphere was a very clear signal of the solemnity and importance of the proceedings within the courtroom. Given the natural limits of sustained concentration, these proceedings were usually only conducted in one to two hour sessions. So it was never long before visitors could return again to the outside world — with the reverse transition to a more natural and serene environment.

This effect was magnified in the Banco Court of former Law Courts complex. This courtroom was constructed on a grand scale, with gently raking public seating which could accommodate more than 300 visitors. The walls were lined with numerous full-length formal portraits of the State’s Chief Justices, creating a suitably impressive atmosphere for the Court’s ceremonial occasions and for the hearing of appeals and other significant court proceedings.

Rather than being concerned about the lack of natural light within these courtrooms, the Bar was more concerned about their functional and technological limitations and their somewhat worn and dated appearance. Given the magnitude of the changes in technology and trial processes which had occurred in the 30 years since 1981, there was a clear need to develop a new courthouse which could accommodate these changes and provide the additional court facilities required to meet the needs of the State’s expanding population.

The opening of the new Queen Elizabeth II Courts of Law gave much to admire. It is a striking building, and its setting on a public square, does convey something of the independence and authority of the courts. The logic and functionality of the building, with its separate circulation systems for judges, juries and persons in custody, are impressive. The spacious foyers, the modern courtrooms and the attractive judges’ chambers are a tribute to all involved in the planning and design process.

However, the new building has not been without its share of controversy. Amongst members of the Bar, there seemed to be seven main topics of debate.

First, there is the choice of finishes. Many welcomed the fresh and modern approach. For some, however, the extensive use of exposed concrete and plywood created an unduly harsh environment, which lacked some of the warmth which had been achieved in the former Law Courts by the use of carpets, fabrics and colour. If it was hoped that the environment would help visitors deal with the stress of the occasion, then for some at least this may not have been achieved.

Secondly, there are the acoustics. In busy courts, such as the applications court, the timber flooring seems to magnify the sound of footsteps and the murmur of private conversations. To some extent, this problem affects all the courtrooms, as members of the public and visiting students regularly come and go. Fortunately, the courtrooms have a sophisticated electronic sound system, which goes a long way towards alleviating this problem. In the views of some, however, the distraction of noise can only be resolved by the installation of carpet on the courtroom floors — a solution which would seem to be equally controversial.

Thirdly, there is the lighting. In general, the introduction of natural light through the wall of glass behind the bench has been well received. There are, however, two unfortunate side effects. From a barrister’s perspective, the source of the natural light can introduce more than the usual element of glare from the bench (sometimes compounded by reflections from other buildings). Conversely, when the level of natural light is low, it can also be a little difficult to read papers from a lectern (as the task lights are built into the bar table at a lower level). These problems are being overcome, to some extent, by the simple measure of lowering blinds (when necessary) and introducing clip-on lights to the lecterns.

Fourthly, there is the Banco Court. For some, the first sight of the new ceremonial court was rather shocking. The height and proportions of the courtroom were impressive, but in functional terms it seemed too small to accommodate the number of visitors who conventionally attend ceremonial occasions. The eastern wall of glass  overlooking  the square was certainly striking, but the treatment of the southern wall above the bench was puzzling. Why was this massive mural thought relevant or appropriate for the State’s principal courtroom? Why was it painted around a single massive, off-centre concrete buttress? And what was the buttress doing there anyway? Time has softened most of these initial reactions —    particularly with the installation of the judicial portraits from the former Banco Court in the gallery area immediately outside the new court. Indeed, the Banco Court and the gallery area have quickly become a popular focus of public events at the court.

Fifthly, there is the design of the Library. In theory, the Library seemed to have all the facilities which could be desired — extensive shelving space, ample work areas, a large lecture room and numerous private conference and study rooms. In reality, for many users, the Library simply does not provide a work space which is either welcoming or efficient. Efforts to develop suitable workspaces, and reconfigure at least part of the Library’s collection, are continuing.

 

Sixthly, there is the matter of symbolism. It is easy to be dismissive of the familiar symbols which appear in courthouses throughout the western world — the scales of justice, the figure of Themis, the legal maxims, the neo-classical elements, the coats of arms, the sculptures and judicial portraits. These familiar symbols are, however, highly effective in marking a building as being dedicated to the delivery of justice according to law. If they are not to be used, is there nothing to take their place? For some, it is a matter for regret that the external form of the new building contains little to distinguish it as a courthouse, that the new public artwork appears to serve only an aesthetic role and that the familiar statue of Themis has been relegated to a position of no importance.

Finally, there is the name of the building. In a modern constitutional monarchy, there was always a case for naming a court complex in honour of a well-loved sovereign. For many, however, this was an unusual choice in modern Australia.

Controversies of the nature were inevitable in a project of this significance and complexity, and they need to be kept in their proper perspective. The new court complex is a significant improvement upon its predecessor in almost all respects and, for many, a remarkably effective building.

Mr John McKenna QC*

* Chair, History and Publications Committee, Supreme Court Library Queensland. This article was originally published in the Queensland Legal Yearbook 2012 published by the Supreme Court of Queensland Library and appears by courtesy of the Library