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Justice Shaw and the missing blood Sample

by Simon Longstaff

Justice Shaw is bound by a solemn oath relating to his office. In line with this, I would say that the nature of holding judicial office is such that, as a judge, Justice Shaw is ethically obliged to ensure that justice is done (and seen to be done) without fear or favour and without any regard to his personal interests.

However, anyone who holds such a position is then bound to consider carefully the precise nature of the justice to be done in a liberal democracy, like Australia. In this context, one of the central questions to be resolved is how best to balance the rights and responsibilities of citizens against those of the state.

One of the great achievements of the liberal democracies has been to secure the liberty of its citizens - often against the otherwise unrelenting power of the state. The liberties secured over time are all the more remarkable for having been accorded to all citizens - irrespective of wealth, position, education or any other consideration.

When it comes to the operation of the criminal law (and the system designed to ensure its enforcement) legislatures in the liberal democracies have consistently acted to preserve the greatest amount of liberty consistent with the overall welfare of the community. So it is that most laws tend to determine what we must not do. In proscribing (rather than prescribing) certain conduct the law presumes that (with a few exceptions) people should be free to do whatever is not forbidden. That is, there is a presumption in favour of liberty.

Consistent with this approach to liberty, it is essential that certain core principles must be upheld. These principles include that:

• all be equal before the law - irrespective of position etc (the 'rule of law')
• citizens be presumed innocent until proven otherwise
• citizens not be obliged to participate in acts of self-incrimination
• the burden of proof fall on the Crown (with its significant resources etc)
• that the standard of proof be 'beyond reasonable doubt'.

Those who gain most from these principles are the relatively poor and powerless in society. People operating at the 'big end of town' are often in a much better position to defend their position. Ordinary men and women depend on these principles applying - with strict equality - to all.

These principles are not, in some sense, 'external' to justice. They are part of what justice means - and as such, when we say justice should be done (and be seen to be done) we should mean that, amongst other things, these principles should operate and be defended in practice.

Justice Shaw therefore has an obligation to uphold these principles - irrespective of whether or not it is in his personal interest to do so.

Unfortunately, various politicians have suggested that these principles should be set aside 'because he is a judge'. However, if this argument were to be accepted it would amount to saying that there are some citizens (judges) to whom the exception should apply. Yet, given the 'rule of law' any judge is obliged to reject this proposition - or be derelict in the discharge of the duty that they owe to us all.

This is not for their protection. It is for the protection of all. Once an exception to the core principles is established (judges), then who will be next? Do journalists have an overriding ethical obligation to the truth (a defining element of their profession)? If so, then should there be an exception in their case? I won't labour the point.

This said, if Justice Shaw is charged and sent to trial then (like all) he will be required to answer truthfully under oath and be judged, by his peers, on the evidence.

All of this is about the ethical obligation of Justice Shaw (as a judge) - which is how the matter has been shaped by politicians and others.

The question is somewhat different if we look at the matter exclusively in terms of Jeff Shaw as a citizen. Like any one of us if guilty of a crime, he is at liberty to make a full and frank confession to the police. People do this every day (I suspect) and probably feel better for doing so. There is nothing about being a judge that prevents this from occurring - as all citizens are at liberty to do so under the law.

However, my argument is that it is self-defeating for defenders of 'justice' to say that he must do 'this' or 'that' because he is a judge.

Many people disagree with me because they feel that what I say cannot be right. This group often includes the people most vulnerable to the exercise of power by the state - or those who happily rely on principles such as that of legal professional privilege (another principle of justice designed to protect the liberty of citizens).

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