RECONCILING THE RIFT BETWEEN RHETORIC AND REALITY

In Conviction, McBarnet argues that, due to the separation of powers between the judiciary
and the parliament, the structure of courts have been set up in a fashion that allows the higher
courts to put on display the ideologies of justice and the lower courts to “flout the principles
of justice legally”1. The higher courts espouse legal rhetoric, while the lower courts
demonstrate a far different legal reality. Thus, after having observed Scottish magistrates’
courts in the 1980s, she concludes that there are two tiers of justice, divided by an
ideological rift.

The aim of my paper is to examine the rhetoric of justice and compare it with the reality that I
have observed in my court visits. As such I understand my task is similar to that of
McBarnet’s in Conviction. However, I aim to show that such an ideological rift, if it exists, is
neither as wide nor as dramatic as McBarnet claims, having recognised the difference in time,
location and judicial context. I aim to show that our courts strike a balance between utopian
rhetoric and pragmatic reality.

Applicability of McBarnet’s views

McBarnet attempts to prove the existence of an ideological rift by putting forward a twotiered
model of the criminal justice system. Under headings of ‘Triviality’ and ‘Relevance’,
she gives reasons on how particular groups (court personnel, the legal profession, the public)
feel in regards to the justice delivered by magistrates’ courts. These two headings, she claims,
justify the absence of due process in magistrates’ courts and thus lend support to her model.
Two glaring flaws of McBarnet’s conclusion are the definition of legal rhetoric and the
correctness of her methodology. In Hutton’s critique3, he notes “McBarnet simply asserts that
people share her own definitions of the rhetoric of due process, justice and the rule of law”.
Poorness in methodology arises in her lack of observations in the higher courts4 – was legal
rhetoric really fulfilled in practice there? Or is it simply that McBarnet’s own views on legal
rhetoric are too idealistic for any Scottish magistrates’ court? Hutton further suggests that
McBarnet’s views on rhetoric “are much more idealistic and utopian than those of ‘the
general public’”5. Being an observer from outside the legal system, perhaps McBarnet’s view
do not give sufficient weight to the need to balance rhetoric with pragmatism.

If this is the case, how applicable, then, are McBarnet’s observations to the current state of
the NSW criminal courts? My conclusion is not very applicable. This is mainly due to the
significant difference between the Scottish magistrates’ courts in the 1980s and the Local
Courts of today.

Under the heading of ‘Triviality’, McBarnet argues that the work of the magistrates’ courts is
perceived as trivial, the offences trivial, the penalties trivial. Yet this is clearly not applicable
to the Local Courts of NSW, since our magistrates are stipendiary6 and legally qualified7,
there has been an expansion of summary jurisdiction for indictable offences, and the
maximum concurrent sentence a Local Court can impose has been increased from 3 to 5
years8. All these qualifications serve to invalidate any claim that the criminal jurisdiction of a
Local Court is trivial.

Under the heading of ‘Relevance’, McBarnet challenges the conclusion that “the large
majority of cases [in magistrates’ courts] are straightforward and the facts uncomplicated and
clearcut”9. She argues “this view of the lower courts is inaccurate”10. She suggests it is rather
the lack of legal representation to develop “difficult and complicated case law”11 which
creates a perception of ‘legal irrelevance’ in the magistrates’ courts. That view, in my
opinion, does not hold in NSW, because the “difficult and complicated case law” has flowed
through into Local Courts through the expansion of the summary jurisdiction; the
accountability of magistrates’ decisions have increased since there is a right of appeal from
the Local to the District12 or Supreme Court13,14; the proportion of legally-represented
defendants in Local Court criminal matters (partly due to the provision of publicly-funded
legal aid) has been over fifty percent for the last five years15. All of these reasons serve to
reject any notion that the Local Courts’ criminal jurisdiction is irrelevant to ‘real law’.
Having examined McBarnet’s views in detail, it can be seen that her two ‘justifications’ for
the lack of due process in magistrates’ courts simply do not apply in our context.
Furthermore, it is shown that McBarnet based some of her conclusions on unsupported
assumptions and inadequate methodology. Therefore the following proceeds to do what
McBarnet would have intended to do in our context: that is to examine what constitutes legal
rhetoric, as espoused by the International Covenant of Civil and Political Rights16 (ICCPR),
the High Court’s judgments in Dietrich17 and State legislation; and to compare this against
the legal reality as perceived through my observations.

Defining the Rhetoric

The judgment of Deane J in Dietrich captures the meaning of ‘rhetoric of justice’ in brief
words: “[t]he fundamental prescript of the criminal law of this country is that no person shall
be convicted of a crime except after a fair trial according to the law”18. In support of this
definition, his Honour quotes Isaacs J, “that such a right exists… seems to me so deeply
rooted in our system of law and so elementary as to need no authority to support it”19. It is
my opinion that the definition is wholly encapsulated by their Honour’s dicta, that the
‘rhetoric of justice’ is the “elementary right of every accused person to a fair and impartial
trial”20. The procedures that constitute due process are simply mechanisms to ensure that a
fair and impartial trial is provided to the accused.

In the same case, Mason CJ and McHugh also consider arguments of counsel in interpreting
domestic legislation with analogous reference to Australia’s international obligations21.
Although not incorporated into domestic legislation, the ICCPR is ratified by the Australian
government, and thus it can be said that the provisions within Article 14 of the ICCPR have
an influence in our understanding of a fair and impartial trial. Article 14(1) states that: “in the
determination of any criminal charge against him… everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal established by law”.
Article 14(2) grants the right of the presumption of innocence. Together, they express a nearidentical
view of the rhetoric as Deane and Isaacs JJ.

To limit the scope of discussion, the following shall only concentrate on two elements of the
rhetoric most pertinent to courts, that of a “competent, independent and impartial” arbiter and
the right to representation.

Competent, Independent and Impartial

The magistrates of McBarnet’s observations were laypersons advised by a court clerk. They
would not have been legally-competent without this advice, and it would be difficult to argue
whether they were completely independent of the executive. Kirby J narrates an experience in
his younger days when there were “magistrates who were too close to the police. There were
also some magistrates (and some judges) whose hostility to defendants and the parade of
poor, disturbed and down-and-out litigants who came before them, left much to be desired”22.
His Honours words seem to have a similar echo that of McBarnet’s “triviality in the
authoritative eye of the people, the lower class and lower still, the unemployed, homeless,
feeble, who provide fodder for the lower courts”23. The magistrates of Kirby’s youth, he
notes, were “recruited from amongst the clerks” and “spent their entire lives…working
cheek-by-jowl with the police prosecutors, who were effectively part of their court team”24.
His Honour’s comments, made in the 1960s and 1970s, lend support to the contextual
accuracy of McBarnet’s observations.

The magistrates of today are legally-qualified25, with many coming “from outside the public
sector”26 and are independent of the executive. In delivering his judgment to a Chinese taxidriver
who seemed to hold very ‘Chinese’ civil law views of the legal system, His Honour
Magistrate Maloney makes the independence of the magistracy from the executive patently
clear:

“Police might appear to be part of the court system, but in Australia they are not…
They come to court like everyone else; they make mistakes just like everyone else. Just
because they wear a blue uniform, doesn’t mean the evidence they give is better than
everyone else’s.”27

His Honour Judge Nicholson, likewise, told me of an anecdote where the police tried to
tender certain ‘confessional’ evidence, induced from an Aboriginal person under unfair
circumstances28. His Honour refused to admit it. Likewise, a jury had to be discharged and a
matter retried on the grounds that the accused sacked his counsel and the newly-appointed
counsel “had not made himself informed of the DNA evidence”29.

My acquaintance with these two judicial officers has led me to the conclusion that the
independence, impartiality and adherence to due process that our magistrates and judges
exhibit are able to reach the norms of the rhetoric.

The Right to Representation

In Dietrich, Mason CJ and McHugh J acknowledged that the accused has a right to a fair trial
and, depending on circumstances, a lack of representation may mean that the accused did not
receive a fair trial30. The right to representation is held in such high regard that their Honours
stated, “the desirability of the accused charged with a serious offence being represented is so
great that we consider the trial should proceed without representation for the accused in
exceptional cases only”31. For the courts which McBarnet and I observe, however, Deane J
had this to note: “there is much to be said for the view that proceedings before a magistrate or
judge, without a jury, for a non-serious offence32 would not be rendered inherently unfair by
reason of inability to obtain full legal representation”33.

Deane J’s obiter, while it espouses the view that “the less one’s liberty is at risk, the less one
needs protection [by due process]”, might prima facie lend support to McBarnet’s criticism
that such a view on the unequal distribution of due process is “illogical” and “becomes
subject to a measuring rod”34. However, a distinction must be drawn between the judgments
in Dietrich and McBarnet: in Dietrich, their Honours were rejecting the existence of a
common law right to representation at public expense. It is impossible, in Brennan J’s view,
to impose no limit on the right to representation: “if the Courts were to declare a common law
entitlement to legal aid…the administration of criminal justice substantially [would come] to
a halt…The criminal law could not be carried into effect”35. Therefore, the rhetoric in
Australian law, as espoused by the decisions in Dietrich, establishes a right to representation
to ensure a fair trial, but not the right to representation at public expense.

As a result, does Deane J’s obiter affect the right to representation on a Local Court level? In
my observations, it does not. Domestic legislation guarantees the right to representation36.
Further, representation at public expense may be granted through legal aid, subject to means,
merit and policy assessment. Therefore, an accused faced with a non-serious charge in the
Courts of NSW would still be able to obtain representation. To me, such a position does not
signify an erosion of the due process right to representation.

In the Local Court matters I attended, the majority of cases were self-represented. However,
it seems to me that in such matters, the magistrate “becomes counsel for him or her,
extending a ‘helping hand’”37. An accused who could not communicate competently in
English was able to be slowly understood through casual and simple dialogue with the
magistrate38. Another, was given very ample time to examine witnesses and fully put forward
his case39. In the case of the unrepresented Aboriginal person in the anecdote Judge
Nicholson narrated, he was still protected by the intervention of the magistrate. I conclude
from my observations that, where the defendant does not have representation, there is often
the “helping hand” of the magistrate to ensure the trial remains fair.

Reconciliation and Conclusions

Does an ideological rift exist? It depends on one’s own belief of the ‘rhetoric of justice’.
Packer’s Due Process model is a good illustration of this. If we use Packer’s analogy that due
process “resembles a factory that has to devote a substantial part of its input to quality
control”40, then an unbounded, utopian level of due process will produce little to no output;
criminal justice could not be carried into effect41.

If, however, we accept more pragmatic view of legal rhetoric, as espoused by Brennan J, “to
produce as fair a trial as practicable in the circumstances of each case”42, then my
observations have shown that our lower courts have met this standard. The ideological rift
exists due to the innate difference between utopian rhetoric and achievable reality, but in the
Criminal Courts of New South Wales it is not an unbridgeable gulf between McBarnet’s two
tiers of justice.

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1 McBarnet D, Conviction (1981) 143
2 McBarnet, op cit 153
3 Hutton N, “The Sociological Analysis of Courtroom Interaction: A Review Essay”, (1987) 20 ANZJ Crim 110 at 114
4 Conversation with his Honour Nicholson J of the District Court, March 31 2005.
5 Hutton, ibid
6 s24(1)(a), Local Court Act 1982 (NSW)
7 ss12(1), (2), Local Court Act
8 s58(1), Crimes (Sentencing Procedure) Act 1999 (NSW)
9 Widgery Report (1966) 47 per McBarnet, op cit 147
10 McBarnet, ibid
11 McBarnet, ibid
12 s11 (for the accused) and s23 (for prosecution), Crimes (Local Court Appeal and Review) Act 2001 (NSW) (‘LCARA’)
13 ss52, 53 (for the accused) and s56 (for the prosecution), LCARA
14 since the magistrates receive feedback in the judgments of the higher courts.
15 “NSW Local Court: Summary Statistics 1999 to 2003”, NSW Bureau of Crime Statistics and Research
16 New York 19 December 1966, 999 UNTS 171 [1980] ATS 23, reproduced in Sch 2, Human Rights and Equal Opportunity
Commission Act 1986 (Cth)
17 Dietrich v the Queen (1992) 177 CLR 292
18 Deane J, Dietrich, at 326
19 Isaacs J, R v MacFarlane; Ex p O’Flanagan and O’Kelly (1923) 32 CLR 518 at 542 per Deane J, Dietrich, at 326
20 Isaacs J, ibid
21 Mason CJ and McHugh J, Dietrich, at 304–306. At 306, their Honours stated: “In Jago v Judges of the District Court of
NSW, Kirby P expressed the view that, where the inherited common law is uncertain, Australian judges may look as an aid to
the explication and development of the common law… In common with the status of the ICCPR in Australian Law the
ECHR is not part of English domestic law… [h]owever, it is “well settled” that, in construing domestic legislation which is
ambiguous, English courts will presume Parliament intended to legislate in accordance with its international obligations”.
22 His Honour Kirby M, “The Rise and Rise of Magistracy”, Judicial Officers Bulletin (2003) vol 15 iss 1, 1–3. At 2, His
Honour writes, “One of my early cases for the CCL involved Glenn Corbishley, a somewhat difficult client… The CCL took
Mr Corbishley’s conviction to the Court of Appeal, seeking judicial review… Justice Holmes, in memorable words, said of
the proceedings – “The picture is one which shows the poor, sick and friendless are still being oppressed by the machinery of
justice in ways which need a Fieldings or a Dickens to describe in words and a Hogarth to portray pictorially”…”
23 McBarnet, op cit 146
24 Kirby M, ibid
25 supra, fn 7
26 Kirby M, ibid
27 in the matter of P v Lu, Sydney Local Court, Downing Centre Ct 4.3, April 7 2005
28 Conversation with his Honour Nicholson J
29 id
30 Mason CJ and McHugh J, Dietrich, at 311
31 id
32 Deane J, Dietrich, at 336, fn 67: a non-serious charge is one where “there is no real threat of deprivation of personal
liberty”.
33 Deane J, Dietrich, at 336
34 McBarnet, op cit 145
35 Brennan J, Dietrich, at 324
36 s50, LCARA
37 Mason CJ and McHugh J, Dietrich, at 302 fn 50
38 P v Lu
39 Leichhardt Municipal Council v Morrison, Sydney Local Court, Downing Centre Ct 4.3, April 7 2005
40 Packer H, The Limits of the Criminal Sanction (1968) 158-169, as extracted in Brown et al, Criminal Laws (2001) 236-
239 at 239.
41 supra fn35
42 Brennan J, Dietrich, at 324