This month’s Australian Law Journal (April 2008) includes a couple of relevant comments from its editor, Justice Young. One appears to relate to the hearsay evidence issue posted about here and, indeed, to myself and a Melbourne Law School colleague:
In The Age of 27 February 2008, following a criminal trial in which the accused was acquitted of murder, it was reported that the jury was precluded from hearing evidence that a friend of the victim had been told by the victim that the accused had told the victim during a phone call that he would kill her. The article said that some named persons who were labelled as “legal experts” advocated that the law be changed to allow such evidence, at least under controlled conditions. Victoria is currently re-examining the laws of evidence principally to see whether it can adopt in whole or substantially the Uniform Evidence Act.
It is to be hoped that re-examination of the rule does not take place over-influenced by a particular recent case, as hard cases make bad law….
It seems that the article Young is referring to is this one, which does indeed report about such a trial and names myself and Andrew Palmer as ‘legal experts’. But, contrary to Young’s commentary, neither Andrew nor I advocated a change to the law to allow such evidence, nor did the article claim that we did. Indeed, the article quoted my doubts about the change, especially in relation to the case discussed. (And, of course, I spelt out those doubts in detail here.) It’s quite rare to be accurately and precisely quoted by the lay press on a legal issue. What a pity that the legal press isn’t up to the Age’s standard. (The Age, but not the ALJ, also correctly told its readers that the debate about adopting the UEL in Victoria is long over – as the Victorian Government’s statement of intentions makes clear – save, of course, for parliament. Apparently, major government announcements are slow to reach the NSW Law Journal‘s head office.)
Also, am I just being paranoid, or is there a barb in the (otherwise accurate) remark that Andrew and I were ‘labelled as “legal experts”‘ by the Age? Surely not, because Justice Young makes it clear in his commentary (in the same issue of the ALJ) on the Underbelly case (or, more precisely, the Underbelly commentary) that obnoxiousness has no role to play in legal commentary:
“UNDERBELLY” This is the name of a television program based on the activities of various criminals and their associates in Melbourne. It appears that it is a mix of fact and fiction. The Crown applied to the Supreme Court of Victoria for orders restraining the screening of the program until after pending criminal trials had been held. After having to view a dozen episodes of the program, King J granted an injunction.
What was fascinating was the press reaction to the injunction. The three most widely circulating newspapers in Melbourne took vastly different lines. The Australian of 14 February used the headline, “Law’s sensitive underbelly a poke in the eye for jurors“. The article said that King J’s decision was “a decision consistent with the judiciary’s tiresome habit of imposing its views on the media”. The decision, the writer opined was “quite unnecessary and therefore wrong”. He then went on to refer to the judge merely as “King” and made the rather obnoxious statement that Justice King did not attend the recent Supreme and Federal Court Judges’ Conference, but if she had done so she would have heard more eminent judges than herself tell everybody that long experience shows that juries are robust and responsible.
The Age on the same day carried the headline “The judge is right. Justice is more important than TV ratings.” The sub-heading was “The Underbelly court case has raised the issue of free speech versus a fair trial. The latter must prevail.” The same day’s Herald Sun carried the story under the headline, “The right to a fair trial”. It was a moderate piece noting that the decision was in accordance with precedent, but stating that modern conditions meant that it was virtually impossible to order non-publication in a State and that this alone might mean that in future, judges might be forced to recognise that they needed to “put more faith in the ability of jurors to block out the distant hum of a media frenzy and to better separate fact from fiction”. The next day, Richard Ackland in the Sydney Morning Herald took the view that King J had to decide as she did, but that, If the institution is to survive, the law will have to accept a more Middle Ages view of jurors – “they know stuff”.
My only comment is that I was taught when debating at school, the more colourfully the opponent expresses his or her argument, the less substance it usually possesses.
Justice Young, it seems, judges a book by the politeness of its reviewers. I’ve hyperlinked to the various articles he refers to, so that the readers of this blog can judge whether or not his summaries are accurate. I find it hard to see what Mark Day’s sin was other than referring to Justice King by her surname. Maybe he should have called her a named person that the judgment labels a ‘judge’?
Yes, I know, hell hath no fury. But I raise all in this in part because Young’s idea of appropriate legal commentary is so clearly at odds with the approach to legal commentary in this blog (which, in the unlikely even that he ever read it, would not be much appreciated by the editor of the ALJ.) As it happens, it is an ALJ article that influenced me the most in this regard. I read it as an undergrad and recall that it lambasted Australian legal articles for their refusal to make blunt criticism, expressing straightforward ideas like “This is a thoroughly rotten judgment” with endless circumlocutions (“with respect”, “one might suggest”, “perhaps”, “there may be a viewpoint”.) Alas, I write this from home and the online ALJ only runs from 2001. I’ll edit this post with a citation and quotes from the article once I locate it in the law library – assuming of course, that I didn’t just imagine it!
[EDIT: No, I didn’t imagine it, although I got the date wrong by a decade: The article is Fred Roddell, ‘Goodbye to Law Reviews’ at (1999) 73 ALJ 593, although that is a reprint of the same article first published in the 1930s in the States. I am clearly not the only person to be moved by it; to the contrary, an accompanying commentary describes it as ‘perhaps the most famous law article in the common law world.’
Here’s a taste of why:
There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground…
To go into the question of style , it seems to be a cardinal principle of law review writing and editing that nothing may be said forcefully and nothing may be said amusingly. This, I take it, is in the interest of something called dignity. It does not matter that most people–and even lawyers come into this category–read either to be convinced or to be entertained. It does not matter that even in the comparatively rare instances when people read to be informed, they like a dash of pepper or a dash of salt along with their information. They won’t get any seasoning if the law reviews can help it. The law reviews would rather be dignified and ignored.
Suppose a law review writer wants to criticize a court decision. Does he say “Justice Fussbudget, in a long-winded and vacuous opinion, managed to twist his logic and mangle his history so as to reach a result which is not only reactionary but ridiculous”? He may think exactly that but he does not say it. He does not even say “It was a thoroughly stupid decision.” What he says is–“It would seem that a contrary conclusion might perhaps have been better justified.” “It would seem–,” the matriarch of mollycoddle phrases, still revered by the law reviews in the dull name of dignity.
One of the style quirks that inevitably detracts from the forcefulness and clarity of law review writing is the taboo on pronouns of the first person. An “I” or “me” is regarded as a rather shocking form of disrobing in print. To avoid nudity, the back-handed passive is almost obligatory:–“It is suggested–,” “It is proposed–,” “It would seem–.” Whether the writers really suppose that such constructions clothe them in anonymity so that people can not guess who is suggesting and who is proposing, I do not know. I do know that such forms frequently lead to the kind of sentence that looks as though it had been translated from the German by someone what a rather meager knowledge of English.
Long sentences, awkward constructions, and fuzzy-wuzzy words that seem to apologize for daring to venture an opinion are part of the price the law reviews pay for their precious dignity. And circumlocution does not make for strong writing. I grant that a rapier in capable hands can be just as effective as a bludgeon. But the average law review writer, scorning the common bludgeon, and reaching into his style for a rapier, finds himself trying to wield a barn door.
More choice quotes are available here.