Bad Law by John Reilly

Author:John Reilly
Language: eng
Format: epub
Publisher: RMB | Rocky Mountain Books
Published: 2019-08-14T16:00:00+00:00

Yesterday’s solution is today’s problem.

— Peter Senge

In Dancing with a Ghost Rupert Ross tells of a conference he attended in 1986 in Whitehorse in which he first saw shortcomings of the adversarial process in relation to Indigenous offenders. In his usual gentle style he says: “It was commonly agreed by the conference participants that Native people, with their belief in consensus decision-making, might find our adversarial system foreign and inappropriate.”

My view is that the adversarial system is wrong for everyone. As a judge I saw far too many cases lost by inept counsel or won by very able counsel when the proper result of the process would have been the opposite of what I was required to do.

Why do we have the adversarial system? I believe it goes back to the days of trial by combat when people actually believed that a fight to the death by men representing either side of an argument would determine the truth.

In my view, that system determined nothing else except the winner. The use of it in our justice system usually produces the same results.

Why do we have the right to remain silent? I believe that goes back to the days when the most sadistic tortures were used in order to get suspects to admit to a crime. After hundreds of years of this, people finally realized that suspects would say anything you wanted them to say if you subjected them to sufficient pain. So in order to prevent suspects from being tortured to make false confessions, they were given the right to remain silent.

This right to remain silent makes a ritual of denying responsibility for harmful behaviour. The system that allows an accused person to remain silent allows them to avoid responsibility.

Why do witnesses have to testify in the face of wrongdoers who may have seriously hurt them? That is because of Sir Walter Raleigh, a pirate and a murderer who was knighted by Queen Elizabeth I for his contributions to England, only to be beheaded later by King James I for disobeying an order that he avoid engaging with Spanish forces. At his trial Raleigh insisted he should be able to face his accuser, and thus began the practice of requiring witnesses to testify in the face of the accused. This has worked terrible hardships, especially on women who are the victims of violent sexual offences.

The alternative to this practice is found in the Indigenous process by which elders would speak separately to members of the community to determine what in fact happened. In their system this was not prone to injustice, because the object of the exercise was not to punish a wrongdoer but rather to solve a problem. They may well have been uninterested in exactly who did what to whom. They simply wanted to acknowledge a problem and find a way to deal with it.

When I attended the conference of the Institute for the Advancement of Aboriginal Women in 2017, I suggested an alternative to our way of dealing with domestic violence.

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