Andrew L. Urban
If a bus carelessly runs over a pedestrian, we rightly expect the driver to call an ambulance – and he or she does so. We also demand that the driver be punished and better trained. The criminal justice system doesn’t take the same attitude when it is claimed* to have wrongfully convicted an accused. The accused becomes roadkill, often still lying by the side of the road years later. The self policing legal system closes ranks, more concerned it seems with protecting its all-important reputation than healing its victims.
Inheriting our legal system from Britain, it is telling that Britain’s Criminal Cases Review Commission began its work in 1997 while Australia in 2026 still lacks this important platform intended to help correct mistakes. Which raises the question: does the Australian legal system know right from wrong? But the legal system is not a sentient being; it is administered and governed by individuals in the legal profession, from judges to barristers, lawyers to magistrates – and police. (I categorically exclude from this damning essay the decent, honourable and genuinely truth seeking professionals in the legal system, some of whom I know.)
Why do I accuse the legal system of such heartless failure to differentiate between right and wrong? The main reason is that in the dozen or more years I’ve been writing about wrongful convictions, I have seen no examples of the system rushing to examine and if necessary to correct what may have been a mistaken conviction. On the contrary. The kneejerk reaction is to safeguard that conviction. From the often multiple failed appeals of accused including Lindy Chamberlain, Henry Keogh, Derek Bromley and Sue Neill-Fraser, to refusing to abandon junk science in Shaken Baby Syndrome cases, the legal system tends to regard convictions as sacrosanct. As if …
But perhaps it is a fear that the truth will reveal their professional currency: lying.
Law professor Nancy Lee Firak, of Northern Kentucky University, wrote in ‘Ethical Fictions as Ethical Foundations’: Justifying Professional Ethics (Osgoode Hall Law Journal, 1986): ‘Lawyers are trained to cast the facts of a single event in several different (even contradictory) forms and are then taught how to argue that each form accurately represents reality.’ In short, how to lie. That suggests law schools stand foursquare for artifice, chicanery and greed.
Those words are taken from Evan Whitton’s infinitely researched and damning work, Our Corrupt Legal System (Book Pal, 2009), which opens the window into that world, and reveals the answer to our question about knowing right from wrong. The answer is … that isn’t the point.
permit for lawyers to operate as a cartel
Multi award winning journalist and legal historian the late Evan Whitton, considered the adversarial system Australia has imported from Britain a disaster for justice, nothing more than a permit for lawyers to operate as a cartel, in which truth is not the ultimate objective. Winning is.
Harvard ethics professor Arthur Applebaum said in Professional Detachment (Harvard Law Review, 1995): ‘Lawyers might accurately be described as serial liars because they repeatedly try to induce others to believe in the truth of propositions, or in the validity of arguments, that they believe to be false.’
Not all lawyers lie without shame. Law professor James R Elkins, of the University of West Virginia, author of The Moral Labyrinth of Zealous Advocacy (21 Cap. U. L. Rev. 735 (1992) and Can Zealous Advocacy Be a Moral Enterprise? has said: “[Taking] zealousness to its adversarial limits (all the while promoting the adversarial system as a system of justice) poses a serious moral problem. Basically, we need to admit that there is occasion for shame in our profession. It would be overly dramatic to say that it is a surplus of shame that is driving lawyers from the profession, but something is.”
In The Moral Failure of Law Schools (Troika, November-December 1996), Alan Hirsch, later Professor of Legal Studies at Williams College, Massachusetts, explained how the case method corrupts law students and destroys their idealism:
“… the primary method of legal instruction in the US is a blunt weapon for destroying a commitment to the public interest. … the so-called Socratic method carries out the mission not of Socrates but of his adversary, the sophist Protagoras, to show that clever arguments can be made on behalf of any proposition and that there are no right answers. The teaching of sophistry in law schools is subtle but pervasive. The student called on to start the Socratic inquiry is often told by the professor which position to defend, or simply told to take any position willy-nilly, without regard for what she may regard as correct. Sometimes, in the midst of the student’s analysis, the professor will tell her to shift gears and advocate the other side of the case. … Much of the academic community [seems] to agree with the Harvard professor, who as legend has it, snapped at a student: ‘If it’s justice you want, go to divinity school.’”
And perhaps it isn’t just a unique hubris but also greed that drives the legal profession’s resistance to correcting mistakes.
Associate Professor Benjamin Barton, of the University of Tennessee College of Law, put the question, Do Judges Systematically Favor the Interests of the Legal Profession? in the Alabama Law Review of December 2007. In what may be termed the Barton Hypothesis, he answered his question thus at page two of his 52-page (14,821 words) paper:
“Here is my lawyer-judge hypothesis in a nutshell: many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.”
The origin of lawyers’ immunity from suit is a brazen example of the Barton Hypothesis.
Barristers cannot be sued for negligence. That notion still obtains in Australia, if in few other countries.
Dickens said: ‘The one great principle of the English law is to make business for itself’.
Evan Whitton (1928 – 2018) was Editor of The National Times, Chief Reporter at The Sydney Morning Herald, and Reader in Journalism at Queensland University. He received the Walkley Award for National Journalism five times, and was Journalist of the Year 1983 for ‘courage and innovation’ in reporting an inquiry into judicial corruption.
*In this context, “claimed” means an appeal or appeals lodged against the conviction on reasonable grounds.
The Deadly Delay Justice Denied by Design – Fiona Brown and the Roadkill Culture
I have followed Andrew L. Urban’s powerful January 2026 essay “Roadkill of the legal system” with complete agreement. Bob Moles response, directing readers to Evan Whitton’s essential works (freely available on the Networked Knowledge site), was equally spot-on. The Australian criminal justice system treats those it damages, whether through wrongful conviction or institutional betrayal noted by Andrew as roadkill. Roadkill left injured by the roadside while the machine rolls on, reputation protected above all else.
Today I want to focus on one lethal feature of that culture, delay. Delay is not mere inefficiency. It is a deliberate weapon. It exhausts complainants financially and emotionally, drains their resources, and allows powerful institutions to outlast those seeking accountability. I know this from bitter personal experience.
In my own case, acquitted unanimously by the High Court after a day of arguments ended in just four minutes with an acquittal. After 2,373 days in prison for a murder I did not commit, delay formed part of the grinding process. Prolonged proceedings amplify financial and psychological pressure. The system favours those with deep pockets; everyone else risks being crushed.
This same corrosive delay now confronts Fiona Brown in her Fair Work claim against the Commonwealth, lodged on 28 November 2025. The Commonwealth has still not filed its defence. Mediation was ordered for late April or early May 2026. The substantive hearing is listed for March 2027 that is more than 15 months after filing. For a dedicated public servant allegedly muzzled by senior figures in Scott Morrison’s office, stripped of her responsibilities overseeing The Lodge and Kirribilli House, isolated, and driven to a suicide attempt, this is not neutral procedure. It is attrition by design.
I have written before on this site about how court delays manufacture injustice. In my March 2026 piece on extending court hours, I noted that prolonged pre-trial detention and backlogs coerce guilty pleas even from the innocent. Over 90% of convictions now come via pleas rather than trials. The same logic applies here. Delay shields errors, conceals inconvenient truths, and protects the powerful.
Australian politicians across parties remain beholden to powerful police unions that defend their members with extraordinary vigour. Video or audio evidence that would condemn any ordinary citizen is too often dismissed as “out of context” or buried in years of internal reviews when it implicates officers or prosecutors. The double standard is glaring. Ordinary Australians wait years. The system protects its own.
Fiona Brown’s case fits this pattern perfectly. Senior advisers allegedly withheld critical media questions from her, issued statements in her name without consent, warned her against defending herself lest she “kick the story along,” and demoted her overnight. Male colleagues facing scrutiny were protected.
The Commonwealth now drags its feet, just as police unions and prosecutors do when their conduct is challenged. Evan Whitton rightly described the adversarial system as a cartel where winning trumps truth. Professor Benjamin Barton’s “lawyer-judge hypothesis” explains why outcomes often favour the legal profession and state interests. Delay is the safest, most effective tool for that protection. It looks procedural. In reality, it is lethal.
Britain established its Criminal Cases Review Commission in 1997. Nearly three decades later, Australia still lacks any equivalent independent body. Instead, we have self-policing that treats every official decision as sacrosanct until the complainant collapses.
Fiona Brown is the latest name on the roadkill list alongside Lindy Chamberlain, Henry Keogh, Derek Bromley, Sue Neill-Fraser and too many others, including myself. The human cost is real. The human cost ruined careers, broken health, lost years, and in Brown’s case, a suicide attempt after Morrison’s parliamentary apology appeared to endorse the narrative against her.
We must demand reform, timely disclosure, independent review mechanisms, an end to absolute prosecutorial immunity, and genuine accountability that applies equally to police, prosecutors, and political staff. Until politicians stop yielding to unions and the legal profession stops treating truth as optional, the roadkill will continue to mount.
Justice delayed is justice denied by design. The system knows it. The question is whether we will force it to change.
Thank you Andrew. It may help your readers to know that the full text of Evan Whitton’s books on these issues is available from the Networked Knowledge web site. Evan said the shortcomings of the legal system should be more widely known, and he was keen for me to distribute his books free of charge to all who might be interested in these issues. They include the following:
Trial By Voodoo 1994
The Cartel 1998
Serial Liars 2008
Our Corrupt Legal System 2009
They are all available at http://www.netk.net.au/WhittonHome.asp
Thanks Bob, appreciated. I recommend readers take advantage of this generous offer.
Thanks also Bob.
I’ve got Trial by Voodoo and The Cartel but will look forward to having a look at the other two. Needless to say, my interest in the topic was sparked by what I’ve witnessed and more importantly, experienced myself.
I saw a qood quote attributed to Edmund Burke – who was himself a liar..er lawyer. ” …the law is injustice codified; it protects the idle rich against the exploited poor and adds a new evil, – lawyers”.
Enough said.
I may be late to the party on this, but I am currently reading a book called Framed by legendary fiction writer John Grisham and Centurian Ministeries founder Jim McClosky who has dedicated many years advocating for wrongly convicted prisoners. They each write about five cases in the US where innocent people have spent decades in prison unjustly. It is a must read, and it parallels what has happened to many in Australia, lost blue rag, police “bricking” suspects, incompetent judges, prosecutors and defence lawyers. I highly recommend this 2024 real crime book.