Gallavin on Litigation: Getting "bogged down" with truth

by Dr Chris Gallavin

I had a written an entirely different piece for this week’s edition of LawTalk but parked it on hearing an interview with David Hislop QC, counsel for Mark Lundy on his appeal to the Privy Council.

The interview on National Radio was largely uneventful save for one comment that completely grasped my attention. When asked how he thought his submission had gone he answered positively and included a line that went something like this, “I avoided getting bogged down with the notion of truth”.

I thought to myself that this statement was perhaps the most remarkable statement I had ever heard a lawyer say on public radio.

I then asked myself how that statement would be interpreted by the average man on the street, or at the very least the average listener of National Radio (the two probably not synonymous). I supposed that it would be completely dumfounding to most, especially when one considers that the New Zealand public has been fascinated by the Lundy case entirely because of the question of truth.

To be now confronted with an apparent rejection of truth as both an inconvenience and a distraction seems at the very least rather remarkable. A likely retort from a common member of the community to Mr Hislop might, I suppose, go something like this “if a trial is not about establishing the truth then what is it about?”

Now, in answering that question it would be easy for me to jump to the defence of Mr Hislop (with whom I greatly admire and respect) applying my years of legal training and self perceived intellectual superiority by expounding the virtues of systems and processes, the philosophical and practical impossibility of establishing the truth in all but the clearest of cases, and waxing positively lyrical about the role of the advocate in putting the best case forward, etcetera, etcetera, etcetera.

But part of me thinks that I, too, ought to find the comment of Mr Hislop disconcerting. The realisation that for all my fancy learning it might be me and not the public who have missed the point is, well, uncomfortable.

I am confident in my position on the purpose of a trial, the role of an advocate, and so on, but I do think it healthy for us to occasionally demand answers of ourselves to basic questions. This applies equally to myself as an academic looking at the workings of the system as a whole, as it does you (I suggest) as a practitioner working with the reality of litigation on a daily basis. I make a very similar point to my students when talking about propensity evidence.

Most members of the public find it reprehensible that previous convictions of a defendant or witness are routinely kept from a jury. Although I am not an apologist for the rules of evidence in New Zealand, I can answer this concern comprehensively (at least to my satisfaction). But, as I say to my students, we ought to always leave open the possibility that it is us that have it wrong and that the public, in all their indignation over the propensity issue, have it right.

For me it is always important not to see or place myself in the position of all-knowing but to continually place myself in the position of all-learning.

The reality is that as with the practice of law, the academic game of intellectualism can become jading. In order to keep fresh I believe it important to ensure progressive development within ourselves by challenging our own perceptions, behaviours, endeavours and practices.

And so I ask the question; what would a truth-based approach to trial advocacy look like? Would it, in fact, look any different to the process we currently have both in the civil and criminal jurisdictions? Save for those very small minority of cases in which truth seems largely illusive (for example, Bain, Lundy, McDonald) is it appropriate for us to hide behind the veil of process and systems, notions of rights being breached and even the weighing of counter wrongs (that is, stays and improperly obtained evidence)? Do we at all, in fact, hide behind these and other arguments?

Now I am neither a neo-liberal in crisis nor a closet Sensible Sentencing Trust member, but the notion of a truth-based system intrigues me. Would it, for example, result in a more inquisitorial structure, encourage and/or legitimise greater judicial questioning of witnesses, change the notion of compellability, change the face of legal ethics and even interfere with our rights-based foundation?

I do not, unfortunately, have the answers to these questions and merely leave two questions and a rhetorical statement for you. First, when was the last time you thought about the truth of the case you were arguing? Second, did it, or would it, change the way in which you argued your case?

Finally my rhetorical question: are we bogged down by truth or are we bogged down by the processes we put in place to disavow ourselves of the responsibility of establishing the truth?   

Dr Chris Gallavin is an Associate Professor of Law at Canterbury University. He is also the Dean of the Law Faculty and the Head of School at Canterbury. Dr Gallavin has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence(LexisNexis, Wellington, 2008), and as a barrister and solicitor regularly undertakes consultant work in the area of the law of evidence.

 

This article was first published in LawTalk 824, 2 August 2013, page 11.