Gadfly 299

By Robert Macklin

I think we can all agree that whatever happened when Bri any Higgins and Bruce Lehrmann entered the office of then Defence Minister Linda Reynolds in the early hours 23 March 2019, the result today is a legal calamity.

Ask any lawyer and they’ll tell you that we are extraordinarily fortunate in having the best system in the world. They treat it with the kind of tremulous deference that priestly proselytes hold for the Va can. Un l recently, they even copied their vestments, se ng themselves above and beyond the mere mortals who came to judgement in their courts.

Their methodology is virtually sacrosanct. The accused is innocent un l ‘proved’ guilty. And that ‘proof’ will emerge from the evidence, itself the subject of complex but well-a ested rules that ensures fairness to both complainant and accused. It will be put before either a judge – a person of perfect objec vity – or a jury of twelve of the accused’s peers, selected at random but subject to limited appeal from either prosecu on or defence. Only then will the accused emerge as ‘innocent’ or ‘guilty as charged’.

Who could ask for anything more?

Well, as the Cardinal Pell case so graphically revealed, the ‘guilty’ could indeed ask for a ‘higher’ court to review the same evidence (on paper) and come to the opposite view. Or, in the Higgins/Lehrmann case, one of the peers might break one of those precious eviden ary rules – or appear to – and the whole process would have to be repeated. Or not, as it turned out, because the Prosecutor in this case was concerned that the ordeal was dangerous to the health of the complainant.

Then followed the inquiry conducted by one of those persons of perfect objec vity who so lambasted the Prosecutor that his con nua on in the post was ‘untenable’ and he resigned.

Next, according to the Chief Minister of the ACT, Andrew Barr, we’ll have an inquiry into the inquiry since the judge ‘leaked’ the findings of his inquiry to two journalists, albeit with an ‘embargo’ which, says Barr, he had no right to make.

Will it never end? The short answer is no, not on the absurd proposi on that the truth of the ma er can be discovered from an adversarial system where each side tells a different story based on roughly the same facts and twelve spectators get to pick which narra ve they prefer. And certainly not when some par cipants – plain ff or defendant – are wealthy enough to pay the best storyteller in town, while the impoverished opposi on is stuck with a drone.

There are, of course, much be er systems available than the adversarial one, but the lawyers are presently having such a fine me – and have infiltrated all levels of government and sta ons of the elite – so we’re stuck with it.

And that’s before we even touch upon the ancient presump on upon which the whole no on of crime and punishment rests – a human being’s capacity for free will. Do we really have some independent power to decide our ac ons beyond all that went before, urging us in one direc on or another?

It is a conundrum that exercises the minds of our best and brightest. For while we cannot tell the future, in retrospect everything was inevitable (because it happened). And the more data we bring to the issue the less it seems we have the power to choose beyond a vanishingly small slice of op ons. Perhaps that’s one reason at least for the overrepresenta on of Aboriginal youngsters in the criminal jus ce system.

But perhaps that’s an argument for another day… robert@robertmacklin.com

Reading—a beer with Bazza

Bazza rotated his schooner numerous mes, reread the newspaper ar cle and sighed.

The U.N. chief issued a stark warning on climate change this week: “The era of global warming has ended; the era of global boiling has arrived,” António Guterres declared in a news briefing, as scien sts confirmed that July is set to become Earth’s ho est month on record.*

He looked up at the television with footage of Hawaii devastated by fires, followed by another story on record ocean temperatures and finishing with the grim announcement Antar ca is missing sea ice equivalent to the size of Argen na or 36 percent of Australia.

Bazza gri ed his teeth and scanned the front bar, now filling with clientele of a similar vintage to himself.

Whilst taking in the din of the bar, the odd uproar of laughter and the swearing, Bazza remembered a World War One recruitment poster he had once studied.

He closed his eyes and thought about future difficult ques ons from grandchildren.

Acknowledge: h ps://www.bl.uk/collec on-items/daddywhat-did-you-do-in-great-war

*h ps://www.washingtonpost.com/climateenvironment/2023/07/29/un-what-is-global-boiling/