Flat White

The rule of law also applies to law processes

8 February 2018

2:30 PM

8 February 2018

2:30 PM

George Brandis’s parting shot in his valedictory speech to the parliament over his concern that ‘attacks upon the institutions of the law … the courts and those who practice in them … attack the rule of law itself.’ But what if those institutions themselves too often ignore or break the rule of law in the process of administering it?

The legal profession has erected safety barriers to ensure it remains in control of its self-policing practices, including legal sanctions against those who wish to investigate. The claim by the legal profession of special privileges – and the cocoon of respect it demands, Mr Brandis – have worked against the interests of better transparency and fewer errors. The many decent, ethical lawyers are made largely irrelevant.

  • Prosecutorial fervour trumps the rule of law in court and has led to dangerous, prejudicial practices in several murder cases; Mallard, (WA), Wood and Gilham (NSW), Keogh (SA) are just a few recent examples.
  • Judicial error allows prosecutors to speculate without evidence and lead the jury into guilty verdicts as clearly occurred in the Wood case (NSW).
  • In one case, that of Henry Keogh, Crown officers withheld exculpatory evidence for 10 years; no one is held accountable.

Determined obstruction of appeals against convictions – often even when the convicted person has already served many years in prison – delay the process, compound the injustice and exaggerate the costs to taxpayers.

Police investigations blinded by tunnel vision, prosecutors acting against the rules and judges uninformed in the management of forensic and technical evidence have plagued the system for decades. The lessons of the Lindy Chamberlain case over 30 years ago with its numerous errors have not been learnt. They’ve been repeated.

Andrew L. Urban is author of Murder by the Prosecution, due for publication later this year.

Dr Robert N. Moles (ACII, LLB Belfast, PhD Edinburgh), is author of Miscarriages of Justice: Criminal Appeals and the Rule of Law, LexisNexis (2015)

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