The Order, Summer 2010–2011 - Order of Australia Association

12 The Order, Summer 2010–2011 The Order, Summer 2010–201113A judge ponders the Chamberlain case, sentencing, drugs and the ‘War on Terror’Michael Chamberlainand his former wife,Lindy, are seeking anew inquest into thedeath of their daughterAzaria because the lastone recorded an openverdict despite severalinquiries finding that,as they had claimedfrom the outset, a dingohad taken Azaria.In his recently publishedbook The Questfor Justice, formerJudge Ken Crispin recallshis belief thatthere had been a miscarriageof justice inthe Chamberlain case.Here, former HighCourt Judge MichaelKirby AC CMG (below)writes a foreword tothis significant book.Trial by Jury: ... one findsinformed reflections bythis experienced triallawyer on the problemsand advantages of trialby jury; the difficultiesof discovering the truthfrom witness impressions;the risks of prejudicethat arise in any trialsystem; and the problemsfaced by advocates andjudges in making surethat adversarial litigationproduces just outcomes.The Hon Dr Ken Crispin has heldmany important posts in the law inAustralia. He has served as abarrister, appearing in some of the mostnotorious criminal cases of his time.One of them, involving an inquiry intothe conviction of Lindy Chamberlain,challenged what he felt was — and waslater held to be — a serious miscarriage ofjustice. Any lawyer who takes part in sucha case naturally searches his or her mindfor what ‘justice’ means, how an injusticecould occur in contemporary Australia andwhether any failing on his or her part couldcontribute to such an outcome in the future.After his years at the Bar, Dr Crispin wasappointed a judge of the Supreme Court ofthe Australian Capital Territory. Later herose to be President of the Court of Appealof that court. While serving as a judge healso performed duties as Chairman of theLaw Reform Commission of the AustralianCapital Territory. The roots of the concernsthat have led him to write this book maybe traced through all of his public offices.Yet almost certainly they date back chieflyto his time at the Bar, his appointment asQueen’s Counsel and his assumption ofthe responsibilities of Director of PublicProsecutions of the Australian CapitalPrinciples eroded: DrCrispin describes how theerosion of basic principlesthat has accompanied the‘war on terror’ has spilt overinto other troubling areasin Australia: preventivedetention and prohibitoryorders of designated groupssuch as ‘bikie gangs’.Territory. Such a position is one of greatimportance. It takes the officeholderinto daily consideration of allegationsof serious misconduct on the part ofaccused persons. It requires the weighingof evidence and the making of difficultdecisions as to whether the power of thestate will be brought to bear on the life ofthe accused. The Australian community hasbeen fortunate that such a thoughtful andintrospective human being has carried thisdifficult public responsibility over such along time and we are fortunate now to haveDr Crispin’s distilled reflections on his lifeand his personal ‘quest for justice’ recordedhere.The book follows a partly chronologicaljourney through Dr Crispin’s encounterswith the law and its institutions. It beginswith his examination of values in the law.When I was young, I was taught that lawwas applied by judges immune from anypressure of values. Judges, I was assured,were operating on a kind of ‘automaticpilot’. Their duty was one to ‘complete andabsolute legalism’.A lifetime’s service in the law has taughtDr Crispin and me that things are not assimple as that; that law exhibits values;that the search for justice under law is itselfStigma of drugs: ... wein Australia have toreconsider our presentapproach to this issue.His opinion is gatheringincreasing support frompreviously unexpectedquarters. The Secretary-General of the UnitedNations, Ban Ki-moon, inemphatic words expressedin 2008, said bluntly: “Noone should be stigmatisedor discriminatedagainst because of theirdependence on drugs.”Sentencing: ... this is atopic on which everyonein society seems to holdstrong opinions, especiallythe ‘shock jocks’ in themedia.a quest for the attainment of values. Thatthe values of individual judges inevitablyaffect the outcomes of their decisions andthe orders that they make. It is thereforefitting to try to explain and to be consciousof values. It is also fitting to be aware ofthe possible need to supplement the sourcesof values in the professional experience oflawyers, particularly when they becomejudges.This leads Dr Crispin to a reflection onthe controversy, current in Australia at thepresent time, of whether we need a nationalcharter of rights to help stimulate judicialand legislative decisions. As he pointsout, such a charter has been adopted bythe legislatures in the Australian CapitalTerritory and Victoria. Contrary to the‘bogeyman’ prediction of some notableopponents of that idea, neither the CapitalTerritory charter, nor its equivalent in thestate of Victoria, has so far underminedcivilisation as we know it.The second chapter of the bookexamines the legal system. It exploresthe adversarial system and the traditionof jury trials by which serious criminalcases are usually decided in Australia. Inthis chapter, one finds informed reflectionsby this experienced trial lawyer on theproblems and advantages of trial by jury;the difficulties of discovering the truthfrom witnesses’ impressions; the risks ofprejudice that arise in any trial system;and the problems faced by advocates andjudges in making sure that adversariallitigation produces just outcomes.The third chapter is a reflection— doubtless born of many troubleddays when Dr Crispin was obliged, as ajudge, to determine a penalty for a personconvicted of a crime — on sentencing.As he recognises, this is a topic on whicheveryone in society seems to hold strongopinions, especially the ‘shock jocks’ inthe media. He examines the problemsof mandatory sentences, sentencingthe mentally ill and that old perennial:whether Australia should restore the deathpenalty for ‘callous and brutal’ killers.Unsurprisingly, because he is aware of themany studies on this subject, Dr Crispin isopposed to restoration. He points out that,when the death penalty was abolished inCanada, there was no increase in homicidebut there was an increase in convictions.DNA evidence now indicates thesurprisingly frequent instances of wrongfulconvictions in what would be capitalcrimes.The last two substantive chapters areheartfelt examinations of topics that haveobviously worried this informed and seniorplayer in the Australian legal scene. Inthe fourth chapter, on the so-called ‘waron drugs’, Dr Crispin shares with us hisconcern about the approach that we haveadopted in Australia in attempting tosuppress the use of addictive drugs. Thegreatest killer among these, by far, as hepoints out, is tobacco. Yet its purveyorsbecome mega-rich on the backs ofaddicts, increasingly those in Third Worldcountries, who will pay the price later.Does this fact excuse a softer touch forother drug crimes? Dr Crispin looks atthe evidence that supports an approach of‘harm minimisation’ rather than ‘law andorder’. This is a most compelling chapter,the more so because it is offered by onewho, like me, was obliged to impose orconfirm, as a judge, very heavy punishmenton those convicted of drug-related offences.By calling attention to law reforms adoptedin the Netherlands, Portugal and elsewhere,he suggests that we in Australia have toreconsider our present approach to thisissue. His opinion is gathering increasingsupport from previously unexpectedquarters. The secretary-general of theUnited Nations, Ban Ki-moon, in emphaticwords expressed in 2008 said bluntly: ‘Noone should be stigmatised or discriminatedagainst because of their dependence ondrugs’. Dr Crispin is not the first to bringthis message to lawyers and others inAustralia but he certainly does so with thebenefit of a respectable and experiencedbackground that he can bring to bear insupporting his opinions.The fifth chapter, on another war, theso-called ‘war on terror’, enters an evenmore perplexing and troublesome area ofthe law’s operation. It is the one with whichthis book opens, the attack on the WorldTrade Centre in New York on September11, 2001. How can society defend itselfagainst such horrors without destroyingthe liberal democratic principles of therule of law and respect for human rights?In this chapter, Dr Crispin describes howthe erosion of basic principles that hasaccompanied the ‘war on terror’ has spiltover into other troubling areas in Australia:preventive detention and prohibitory ordersof designated groups, such as ‘bikie gangs’.Legal rules that purport to forbidaccess to information alleged to justifythe detention of suspected terrorists havegathered some support from courts inthe United States. So far, the courts ofBritain have been much more scepticaland insistent on the rule of law, just as theHigh Court of Australia was in 1951 in itsdecision in the Communist Party case. Onehopes that Australian courts will retain theircommon sense and historical perspectivein this field. That is what I understandDr Crispin to be urging in his review ofdevelopments such as those in GuantánamoBay and the Abu Ghraib Prison in Iraqand his review of the model offered by theOrwellian-titled Patriot Act of the UnitedStates.Anyone reading this book will havepoints of agreement and points ofdisagreement with its author. Yet it is avery good thing that he has shared hisreflections with us. After all, he could havespent his time since retiring from the benchpottering in the garden, reading the LondonTimes, or playing endless rounds of golf.Instead he has presented his reflections on alegal life that has been troubled by some ofthe developments of the last 30-odd years,of a few of which he has been part. In hispreface he acknowledges the opinions offriends and his wife and son as the stimulusfor some of his thoughts. In the lonelinessof the judicial life, everyone needs trustedconfidants who can ask the hard questionsand insist on convincing answers.Now it is for readers to considerthe answers. This is a contributionto transparency on hard topics thatdemonstrates, once again, the goodfortune that Australia enjoys in the serviceof its judges, like Dr Crispin. Unlikestereotypical images of gavel-wieldingjudges, or the television persona of JudgeJudy, in this book our judges emerge asserious-minded people who are anxiousabout the justice of their performance andpuzzled over the big questions that confrontus all as citizens and human beings.The Quest for Justice by Ken Crispin ISBN978-1-921640-43-8Published by Scribe, 2010 Melbourne