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Whitton: judges can’t think straight

Whitton: judges can’t think straight

Barristers spend years learning at uni and on the job to be excellent barristers, then they are made judges, for which they have received no training. Funny system. 

Whitton: judges can’t think straight

By Evan Whitton*

Corruption is white collar (non-violent) crime. If systematic, which it usually is, it is organised crime.

NSW Corps BBJustice. A former Sydney judge, Russell Fox, researched two legal systems for 11 years. He said the public knows that “justice marches with the truth”, that is, justice means fairness, and fairness and morality require a search for the truth, otherwise the wrong side might win.

Corruption has been endemic in Sydney since the NSW Corps got control of the colony in 1792 (photo), but taxpayer-funded judges and courts have rarely troubled the corrupt. Among the reasons:

  • Judging is different from lawyering, but our judges are not trained as judges.

  • The system we got as a colony of England has 24 devices which defeat truth. (Details at pp. 156-220 of my book on two legal systems, available for download free at:

  • All that anti-truth stuff rattling round their brainpans can make it hard for judges to think straight. The French, whose system has no truth-defeating devices, might call that La Maladie Anglais. We can call it the malady.

Judges in France are trained, but the French know that justice is too important to be left entirely to judges; they use the common sense of ordinary people to save judges from falling into error. Lay judges (jurors) sit on the bench at trials and appeals and can outvote the judges. Lay judges would clearly help our judges (and taxpayers). A few examples:

Error inevitable

Alan Herbert, a barrister, said: “In other trades to be wrong is regarded as a matter of regret; in the law alone is it regarded as a matter of course.”

Appeal court a casino

Lord Reid, who sat on the equivalent of our High Court for 27 years, said at least 90% of decisions could have gone either way, i.e. nearly half were wrong. An appeal court is thus a casino; lawyers can tell clients they might as well have another roll of the dice.

Absolutely does not mean absolutely

Section 260 of the Tax Act 1936 barred artificial tax evasion schemes “absolutely”, but in Keighery (High Court 1957) five judges said absolutely does not mean absolutely: there could be exceptions. The judges were Owen Dixon CJ, Dudley Williams, Eddie McTiernan, Frank Kitto, and Alan Taylor. (William Webb dissented.) That vote has cost the Treasury and PAYE taxpayers billions.

White collar criminals are not really criminals

Former judge Ray Finkelstein wrote (Targeting Tax Crime 2012): “How do judges punish white collar crimes? As a general rule, the judges rationale in sentencing is different from sentencing true criminals … imprisonment … is regarded as a last resort.”

ICAC should not do its job

Judges and the courts having failed to do their job on corruption, the NSW Parliament initiated an Independent Commission Against Corruption in 1988. ICAC was instructed it to use a French-type inquisitorial procedure to identify and name the corrupt, but in Balogh v ICAC (1990), five High Court judges said ICAC should not name the guilty men.

Tony Mason CJ, Bill Deane, Daryl Dawson, John Toohey, and Mary Gaudron said: “… the Commission is invested with considerable coercive powers which may be exercised in disregard of basic protections otherwise afforded by the common law.” The “basic protections” are the 24 anti-truth devices which protect the corrupt and other organised criminals, and inflict the malady on judges. Parliament had to bring down legislation to enable ICAC to make corrupt findings.

Could does not mean could

The ICAC Acts Section 8 (2) defines corrupt conduct as “ … any conduct that adversely affects, or that could adversely affect … the exercise of official functions by any public official.”

We can construct a dialogue between a judge and a lay judge:

Judge: “Confusing innit?”

Lay judge: “Not really, judge. Its back to front and a bit redundant, thats all.”

How do you mean?”

The key word is ‘could. If the conduct COULD adversely affect how an official acted, thats the end of it; the conduct is corrupt.”

But what if the conduct did not adversely affect the officials action?”

It makes no difference. Bob Trimbole did a lot of bribing. Suppose he offered a judge a bribe but the beak knocked him back. The authorities could obviously investigate Trimboles conduct.

Nonetheless, in a case in which the conduct of three suspects did not adversely affect an officials actions, High Court judges voted 4-1 that ICAC could not investigate the suspects actions. (ICAC v Cunneen, April 15, 2015) The vote of the four judges – Robert French CJ, Ken Hayne, Susan Kiefel, Geoffrey Nettle; Stephen Gageler dissenting – cast doubt on at least 50 ICAC findings.

ICAC said on April 19 that the ruling would kill off current investigations; raise questions about convictions; and could “involve the state of NSW and the commission in costly and protracted litigation involving persons who have been the subject of corrupt conduct findings”.

The NSW Parliament had to pass retrospective legislation to validate ICAC findings.

Footnote. An untrained worker gets about $16 an hour. An untrained High Court judge gets about $230 an hour, a car and a driver, a non-contributory pension, and first-class travel.


Evan Whitton is a legal historian, after being an award-winning journalist for many years. China Fangzheng Press has contracted to translate and republish his book on the two systems.

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One comment

  1. Even if judges are put through a training program, non sequitur has it that they won’t necessarily be trained. Many adults went to school compulsorily for many years as children but how many of them left having gained an adequate education?

    Given they have a natural bent for being unable to think straight, even if judges read the ‘Dunning-Kruger effect’ it won’t help ‘matters’ simply because it’s their frank incompetence that prevents them from knowing that they are incompetent.


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