The Trial: Principles, Process and Evidence

Australian Journal of Forensic Sciences ISSN: 0045-0618 (Print) 1834-562X (Online) Journal homepage: http://www.tandfonline.com/loi/tajf20 The Trial: Principles, Process and Evidence Nicholas Cowdery To cite this article: Nicholas Cowdery (2015): The Trial: Principles, Process and Evidence, Australian Journal of Forensic Sciences, DOI: 10.1080/00450618.2015.1121798 To link to this article: http://dx.doi.org/10.1080/00450618.2015.1121798 Published online: 20 Dec 2015. Submit your article to this journal Article views: 29 View related articles View Crossmark data Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=tajf20 Download by: [Library Services City University London] Date: 25 March 2016, At: 20:36 Australian Journal of Forensic Sciences, 2015 Downloaded by [Library Services City University London] at 20:36 25 March 2016 BOOK REVIEW The Trial: Principles, Process and Evidence, Jill Hunter, Terese Henning, Gary Edmond, Rebecca McMahon, James Metzger, Mehera San Roque, Sydney, Australia, The Federation Press, 2015, 710 pp., RRP $125.00. ISBN 978-1-76002-026-2. As I wrote in the Foreword to this book, when Franz Kafka wrote The Trial during the early part of the First World War (published posthumously in 1925), he told of a prozess conducted by a remote authority that concealed from the subject, Josef K, and from the reader the identity of the accuser, the nature of the crime alleged to have been committed and the adjudication process itself. Although the novel ended (with K’s death/execution), it was never really completed and we are left with some uncertainties and inconsistencies to ponder. It is said that Kafka was influenced by a real case that he had experienced – but that was a century ago in a far off place… The authors of The Trial: Principles, Process and Evidence do not pose such conundrums. These days in Australia (and in cognate jurisdictions) the accuser, the charge and the process are plain – there can be no uncertainties (although the results can still be less than perfect). The authors of this book expose and thoroughly explain the whole trial process for the benefit of law students, law teachers, lawyers, judges and – if they have the time and application – the public. It should be a compulsory reference for the media and any politicians venturing into the area. Scientists of all hues who testify in court and lawyers dealing with expert opinion evidence will benefit especially from Chapters 6 (The Witness in the Box), 7 (Crossexamination, Witness Credibility and Related Challenges) and 15 (Opinion Evidence). This is an epic journey through the detail of the process that has built up and adapted over centuries in our common-law-based Australian legal system – the accusatorial, adversarial criminal trial of indictable offences as we know it in 2015. There is an emphasis on evidence, the way it emerges and the way in which it is treated; but those matters shape the course of a trial and deserve attention. Extensive case studies illustrate approaches to and the judicial resolution of controversies. Ethical rules and practices are explained. This is an ever-changing process and in painting the full contemporary picture the authors identify and explore some important areas of present controversy (including identification evidence, interrogation, expert opinion evidence and dealing with the vulnerable). The criminal trial is like a legal laboratory. It is in the conduct of this prozess that the law and legal theory are examined and tested and jurisprudence of general application created. The most competent laboratory is the jury trial, where the legal, fact-finding and adjudication functions are physically divided between two bodies and the rules that apply and their application can be more readily examined, tested and reapplied. Results from this laboratory have significant implications for other processes throughout the legal system. In their treatment of the prozess, the authors leave us in no doubt about the purpose of a criminal trial. It is not to discover the truth. It is clear to me, after more than Downloaded by [Library Services City University London] at 20:36 25 March 2016 2 Book Review 40 years of practice mostly in criminal law and after having it confirmed most recently by reading this book, that the purpose of a criminal trial is to assess the prosecution case that has been presented within very detailed and complex legal constraints on substance and procedure. So the prosecution frames and mounts its case, the defence attacks it and may mount its own positive case in opposition and the jury (or judge) decides not what happened, but whether or not the prosecution case about what happened emerges at the end of the process at the level of satisfaction described as beyond reasonable doubt. If so, a conviction follows; if not, an acquittal is recorded and the accused person’s presumption of innocence continues (but there is not a positive finding of innocence). This book explains the legal and ethical parameters in which that process occurs, how it is done by all the participants and why that must be the outcome. Forensic science practitioners of all kinds might note that in Chapter 15, Opinion Evidence, Professor Gary Edmond analyses the currently fraught area of expert opinion evidence on which he has written and commented extensively over a long period. He points to the desirability of Australian law importing ‘reliability’ into ‘specialised knowledge’ (as in the USA) before it should enable an expert to rely upon it to ground an opinion. This is not just a book of sound analysis and a discussion of what is and a synthesis of what might be (as one would expect from this team). This is a book that goes beyond theory, crammed as it is with practical description, legal references, case examples and ideas for dealing with the stages and aspects of the criminal trial that criminal practitioners (for whom this should be an ever-present handbook) encounter every day. Even to experienced practitioners of all kinds there will be something new or something tacitly recognised for which a thorough explanation is now given. The book shows why there can be no basis for describing any properly conducted modern Australian trial as ‘Kafka-esque’. Nicholas Cowdery AM QC Former Director of Public Prosecutions, NSW Former President, International Association of Prosecutors Inaugural Co-Chair, Human Rights Institute, International Bar Association Visiting Professorial Fellow, Faculty of Law, University of NSW Adjunct Professor, Faculty of Law, University of Sydney Email: [email protected] © 2015, Nicholas Cowdery http://dx.doi.org/10.1080/00450618.2015.1121798