Some years ago the noted scientist Paul Davies wrote a book called “The Last Three Minutes” (Weidenfeld & Nicholson, 1994). He was not reminiscing about the very recent past. The book is about the life and possible death of the universe.
In it he wrote:
“As far as we can tell, the universe started out in a more or less featureless state. With time, the richness and variety of physical systems we see today has emerged. The history of the universe is therefore the history of the growth or organized complexity.”
The history of the public office of Director of Public Prosecutions has parallels with this description.
Professor Davies wrote of the difference between organised complexity and entropy, or disorder, and the new fields of research into those concepts. He said that order somewhere gives rise to disorder somewhere else and because of the second law of thermodynamics [heat flows from hot to cold] entropy always wins (because it is cold).
If order in the form of organised complexity has developed in the NSW Office of the DPP since its commencement in 1987, then it may be said that disorder has indeed developed elsewhere; notably among politicians, their advisers and their talkback radio entertainers. Unlike in nature, however, the heat is in the disorder, not in the organised complexity of my Office. Does that mean that disorder – entropy – in this context will win or lose?
Professor Davies developed the hypothesis that
“a sort of ‘law of increasing complexity’ operates in the universe, standing alongside the second law of thermodynamics. There is no incompatibility between these two laws. In practice, an increase in the organizational complexity of a physical system increases entropy… [but – and this is important] organization is not the negative of entropy.”
In the context of the end of the universe, the existence of a law of increasing complexity has a profound significance. If organized complexity is not the opposite of entropy, then the limited store of negative entropy in the universe need not place a bound on the level of complexity. The entropic price paid for the advance of complexity may be purely incidental.”
I am heartened by that proposition. It supports the view (I hope) that we prosecutors may regard the disorder that we encounter as “purely incidental”. We must tolerate it, while maintaining and developing – organising and increasing the complexity of – our conduct. The heat will flow to the cold in our model and be absorbed and entropy will not win.
I was fortified in this conclusion by reading an article recently by Richard Eckersley of ANU (Sydney Morning Herald, Spectrum, 20.1.01). He was also writing about the end of the world as we know it, but he wrote:
“What we need to become are systemic optimists: those who believe life can get better but only with whole-system change, only if we alter quite fundamentally the way we think and do things.”
I think I am a systemic optimist. I believe that we can make life better by changing systems – but only if we also overcome the incidental disorder (entropy). Therefore, for the time being at least, it must be my lot to continue to be in conflict with those I have mentioned.
You may know by now that I have written a book (“Getting Justice Wrong”, Allen & Unwin, 2001 - $19.95). In it I have tried to approach a number of aspects of criminal law and procedure rationally and, I hope, with common sense. It is an attempt to wean the politicians and commentators away from the common irrational responses to crime that we usually see in the headlines, hear on talkback radio and witness at election time and in the halls of State Parliament. There is an incidental entropic price to be paid, of course; but the heat will flow to the cold in due course. [There will be a launch of the book here by the Institute of Criminology – along with Chris Cunneen’s new book “Conflict, Politics and Crime” – on 11 April at 6 pm.]
There is a serious purpose behind the publication of the book. The criminal justice system depends for its efficacy on public confidence. If we lose that we might as well shut up shop. The public must know what the system does. It must know why it does those things. Especially it must have confidence that decisions are made independently and according to law throughout the criminal justice process. The public cannot have that assurance unless it has information and the limited and slanted information it gets from the public media (by and large) is not enough – and often not helpful. I hope that the book will give information to people that will enable them to think and to form their own views about matters; and, hopefully, encourage them to make representations to their political representatives for future action.
I also ask policy and decision makers to pause and ask “why” before they act. I ask them to look beyond today, next week, the next election and to put the resources we have available into measures that will provide long term gains of substance. I suggest some measures. If we can address these problems before they arise, then there can be less for us undertakers – cleaning up at the end of the line – to do and less public money will need to be spent on us.
Noisy support for the undertakers (police, prosecutors, courts and prisons) is easy and cheap. But it is short-sighted and ultimately unproductive.
It is the prosecutor’s lot to be such an undertaker. We are one of the cogs in the wheel that moves into action after the harm has been done. We try not to do further harm, but sometimes that is unavoidable. We represent the community at large. Last year I had the honour to present Nelson Mandela with the Medal of Honour of the International Association of Prosecutors. In his acceptance speech Mr Mandela said, particularly of prosecutors:
“The challenge for the modern prosecutor is to become a lawyer for the people. It is your duty to build an effective relationship with the community and to ensure that the rights of victims are protected. It is your duty to prosecute fairly and effectively according to the rule of law; and to act in a principled way without fear, favour or prejudice.”
To operate effectively, prosecutors must have the confidence of the community we serve. Accordingly, we must be able to demonstrate that we act in accordance with the law and with principles that have been well-established and are generally known. Published Prosecution Policy and Guidelines go some distance towards ensuring that.
We must also be able to act completely independently of improper influences, be they from politicians, the media or particular individuals or groups in society. Independence of prosecutorial decision making is the rock on which we stand. If it is undermined directly or indirectly (for example, by fettering our administrative independence), then public confidence in the integrity of the process will be weakened and ultimately lost. If that happens, we lose our justification for being. Decisions might as well be made by drawing lots.
But we are not a law unto ourselves and, just as importantly, public confidence depends on the competence and professionalism of prosecutors themselves. It is not so long ago – certainly after I left this Law School 30 years ago – that the practice of the criminal law started to become respectable. It was formerly regarded as something a little sleazy or devious – practised by people who were not quite to be trusted. And that applied to both sides of the record. Justice Kirby of the High Court recently referred to this from a different angle when he said at the launch of a book on criminal law: “Until recently, the upper echelons of the legal profession tended to look down their noses at crime. This may have been because of the old adage ‘crime doesn’t pay’.” He referred to students in his day – and it applied in mine as well – having to use English textbooks to study criminal law in Australia.
More recently, however, things have improved with an increased recognition, I believe, of the importance of this area of practice to the wellbeing of society generally and of the high level of skills required to practise criminal law successfully. Justice Kirby said at that same event: “Criminal law should attract the best lawyers in the country. No other branch of the law is so important. It is where our commitment to fair trial and the rule of law are tested every day, in courts throughout the nation. It is where fear of wrongdoers intersects with respect for basic human rights.”
The proof of general recognition of the importance of the criminal law, for me at least, is in the number and quality of the applicants DPPs’ Offices receive whenever vacancies are advertised and in the increased level of ability and professionalism displayed (generally speaking) by prosecutors and defence lawyers in the conduct of matters in court.
Indeed, I have private Senior Counsel prepared to appear for the Crown free of charge, just for the experience and the contribution they are able to make to the community.
The successful practice of criminal law requires at least a working familiarity with many other branches of the law – tort, contract, tax, succession, commercial law, family law and so on. It also requires a keen sense of human rights law. This appears from the list given by Justice Kirby of new crimes and aspects of old offences that are now coming before the courts including: “female genital mutilation, sadomasochistic assaults, stalking, knowingly infecting others with HIV, computer crime, electronic invasion of privacy, money laundering, sexual trafficking, underage sexual assaults overseas, child pornography on the Internet …”
Since I am speaking to students and academics I thought I should mention that early stage of professional development and some observations that have been made by persons far more knowledgeable than I.
It must be conceded, I think, that both the study and practice of law are under a slight cloud at present. The then Governor of Victoria (and former Justice of the Supreme Court), Sir James Gobbo, in his 2000 Sir Leo Cussen Memorial Lecture (“The Legal Profession in Victoria – Idealism under Stress”, 18.10.00 – reported in the December 2000 edition of the Victorian Law Institute Journal) said: “Never have there been more young people trying to enter the profession and yet – quite possibly – never have there been more seriously thinking of leaving it.” He went on to examine why that should be so and identified a perception of a fall in idealism among students and lawyers. But he said that idealism and nobility in the law are not dead and set out to demonstrate why that is so. Among the matters to which he referred were the way in which lawyers strongly defend the principles inherent in securing a fair trial for all accused persons and the improved treatment of female complainants in sexual assault cases.
Sir James said that:
“If there are shortcomings and narrowness of vision, these will not respond to rules and codes of behaviour or regulation or even the mission statements much beloved of modern corporations and especially the new wave of consultants who have invaded settled professions and callings with instant solutions and negligible long-term accountability. The answers lie mainly in leadership and education. In the profession itself, continuing education which is alert to the wider dimension of idealism and noble expectations – covering solicitors, barristers and judges – could make a difference.”
He quoted from the work of the Dean of the Yale Law School, Professor Kronman – that the case method of teaching with its reliance on the adversary method and analysis of judicial decisions may limit the promotion of civic mindedness and break down early idealism – that the case method makes every position respectable.
And from Professor Menkel-Meadow of the UCLA School of Law:
“If we examine our teaching, rather than our more idealized scholarship, the real messages we convey about lawyering become more apparent – and less flattering. As others have noted, the traditional classroom fosters adversariness, argumentativeness, and zealotry, along with the view that lawyers are only the means through which clients accomplish their ends – what is ‘right’ is whatever works for this particular client or this particular case. We extol loyalty to the client above all and neglect the responsibility of the lawyer to counsel the client about moral and other concerns. Our case-by-case method, which focuses on identifying principles of doctrine rather than principles of behaviour, also encourages moral relativism. The values that we attend to in the classroom are apt to be individualism and autonomy, which we present as the basis for the adversary system, the Bill of Rights, and the standard of proof in criminal cases. We fail to teach our students that lawyering involves responsibility to and for others."
She poses questions that teachers should ask:
“What are the ends or results accomplished by particular acts of lawyering? Are these ends morally justifiable? What responsibility does a lawyer have to discuss moral and ethical concerns with clients, and how should ethical disputes be resolved? Do the means used to accomplish a legal outcome serve the ends, and are they morally justifiable themselves? How is my work contributing to a good life -–for myself, for those I serve (or teach), and for the larger society? Does my work further or hinder the achievement of fairness, justice, and equality?”
Sir James added: “In the final analysis, nobility and idealism will depend not on texts or exhortations but on what are the role models and what imagery is engendered.”
Observations of these kinds raise all sorts of interesting issues for the practice of criminal law in particular.
Prosecutors are in a special position when it comes to the values advocated by such commentators. Their client is the community at large. The work they are doing is calculated to improve the life of that community. They work in a strongly collegial atmosphere which can strengthen and support an ethical – indeed, moral – foundation to their work. I commend it to you as a career (but, as I have said, entry is highly competitive).
Of course, there are always difficulties and challenges to be confronted, in that part of the profession as elsewhere. Politicians and noisy popular radio entertainers always think they know better than those with first-hand experience. (There is a lot of entropy about.) It is not easy, to be sure, to deal constantly with victims of crime, especially children, and families affected by crime. The legitimate interests of the accused must always be taken into account. The law to be applied is becoming increasingly complex and demanding, no thanks to the High Court especially, and quite often there is an air of unreality about legal argument during jury trials and appeals, in particular.
Nevertheless, a prosecutor’s lot can be a happy one. We are happy in our independence. We know that our decisions and judgments are to be made on the basis of the law, the facts, and such matters as are addressed in my Prosecution Policy and Guidelines – that they are not to be influenced in any way by the clamour from outside. We know that as a body we are highly skilled and very professional. We know that we have access to the highest quality research facilities, able to be kept informed of the latest developments in the law. We know that we can rely on each other for assistance, when required. And we know (even if it is not always immediately apparent) that what we are doing is somehow for the benefit of our communities.
And we know that there will always be a call for our services.