Settling Out of Court
I have little vanity about my legal practice. I won cases and I lost them. I was reasonably successful but if I were asked to indicate which side of my legal career gave me most satisfaction I would point without hesitation to the number of cases which I managed settle out of court. This did not always please the juniors; and I confess to a certain sympathy with a junior barrister who found himself briefed with me in a will case which promised to last for fourteen days and so would be distinctly advantageous to him, only to find that on the first or second day the counsel’s sole duty was to announce that the case had been satisfactorily settled.
While still a raw junior, I was puzzled by litigants who insistently declined to discuss a sensible settlement. I wondered why they refused to short-circuit the delayed and expensive legal processes. I discovered that many cases originated solely because of bad temper, and that others arose from a desire by each party to establish ascendency over his opponents. Often the litigants had no idea of the obstacles which arise in litigation nor of the tremendous cost. In consequence at an early stage of my career I did my best to settle cases. Obviously a settlement requires an outbreak of common sense in at least six people. The first two obstacles are the plaintiff and the defendant, each of whom is frequently convinced that there is no possibility of his losing. The respective solicitors, too, must have a desire to end controversy as soon as possible. If a stage has been reached where counsel are briefed, three people on each side then have to be convinced that the clients’ interests will be best suited by ending the litigation on reasonable terms.
As any litigation must ultimately end, I remained convinced that the interests of the parties were best served by achieving that termination at the earliest possible hour. I frequently met with will cases, where one of the parties proclaimed defiantly that he or she did not care if the whole estate was wasted in costs – the professional term is not ‘wasted’ but ‘absorbed’. This warrior-like attitude presents a serious but not insuperable difficulty. What the parties overlook is that frequently the struggle in the courts elicits certain facts which damage the parties themselves or their witnesses – facts which are spread far and near by the press. Few laymen are conscious of the unpleasant situations which are sometimes created when a witness enters the witness box and is subjected to searching cross-examination.
I do not recall many cases when I failed to achieve a settlement when I thought it desirable. One of the most effective means I employed was simply to persuade the reluctant settlor to examine the photos of good, bad and indifferent racehorses which decorated the walls of my Chambers. I explained to the client that none of these horses came from inherited wealth but that the money to buy and train and race them had all come from individuals who insisted on voluntarily submitting themselves to litigation. Usually I ended with a perroration to the effect that I contemplated buying another animal and that I thought that the fortnight’s litigation which was the subject of our interview would finance the venture. I then offered my client the right
to name the new horse, irrespective of the result of the litigation. So knowledge and understanding gradually dawned on them. Usually I achieved a result which I thought was extraordinarily beneficial to the client, even though it subtracted from the contributions which otherwise would have been made to the legal treasury.
The shareholders, in this case, jointly owing a property were at arms length for years. Eventually a top heavy pile of affidavits was submitted for my perusal: it was my introduction to the case. In essence the two opposing groups of shareholders each wanted to control the property and in the event of a sale, to purchase it outright. The solution was obvious. I informed the solicitors that I was prepared to breach the Auctioneers’ Act and to conduct an auction sale in my Chambers before representatives of the contestants. I would start at a minimum figure, raise it by minimum sums, and adjourn the auction when a certain price was reached so that the parties might decide whether to accept the offer or reject it. Everything went like clock work, and I eventually disposed of the disputed property to one set of litigants who embraced each other with joyousness when they realised they had be become the owners. The others, I also noticed, were completely satisfied with the price they received. This settlement was arrived at after the parties had wasted nearly two years and already incurred large legal costs. I have to admit, of course, that in many settlements each party goes away slightly dissatisfied. The plaintiff is convinced that if he had delayed a little longer the defendant would have paid him more, and the defendant is equally convinced that if he had delayed a little longer the plaintiff would have accepted less.
I was reluctant to advise a man to embark on litigation for libel unless his general reputation was so high that no devastating disclosure was likely to arise from cross-examination. Marshall was a robust Collingwood councilor with radical views which he expressed frequently in ill chosen language. His constant reference to the new Shrine of Remembrance in St Kilda Road as ‘that heap of stones’ was an example of the way he voiced his repugnance of war. While he often made valid observations about life he persistently expressed them in terms which were offensive to men of less radical views.
Marshall became a candidate for the Legislative Council. On the eve of the election the sitting member, E.S. Kiernan, an authoritarian businessman of right-wing views, caused pamphlets to be distributed through the province accusing Marshall of being a Communist. This accusation of course weakened Marshall’s appeal to the electors, and he issued a writ for libel. John Wren, who was violently opposed to Kiernan, financially supported Marshall in this litigation: indeed Marshall was a protege of Wren. I was retained with Harry Walker for Marshall, and Norman O’Bryan appeared for Kiernan. The proceedings attracted a crowd and were never dull.
The defence called a well-known communist who claimed that Marshall was one of the brotherhood. On the eve of one luncheon adjournment I cross-examined the communist witness, using some of the jargon with which he was familiar and, as a last question, put to him. ‘Now Comrade, we believe this do we not? The witness, extending his hands and fingers towards me and gazing at the Judge, disgustedly spat out: “We, your Honour, We” He then diverted his gaze scornfully to me. It was really a most effective retort. Though I joined the general laughter I was delighted that we were within a minute of the adjournment hour.
Victory was by no means sure and I did a lot of work on the case. In order to make more respectable Marshall’s blunt hostility to war, I collected everything I could from English prose and verse which denounced war and exhalted peace.
My final address to the jury was a series of recitals from celebrated poems and prose. I pointed out that my authors were men of genius, that poor Marshall was not and that he must be excused if he expressed the same laudable sentiments in terms less classic than those which I had recited.
Kiernan had been the Minister of Sustenance in Victoria in the recent depression, he controlled a well-known retail establishment and was a very devoted Catholic. His advisers made an error in allowing him to occupy a seat, during my address in a space usually reserved for an instructing solicitor. He therefore faced me as I spoke. From my point of view this was an admirable position as it enabled me from time to time to pause in my recitation and draw comparisons between the noble sentiments I had quoted and the authoritarian views held by ‘Herr Director’ Kiernan. His design was to mingle, so I suggested, a strict form of authoritarian government tempered by a little bit of time-payment. It was an ordeal for poor Kiernan who squirmed from time to time at the ‘Herr Direktor’ thrust.
Sir James Macfarlan, usually a caustic judge, was kind enough to appreciate my effort and after the case paid me some compliments; but the Herr Direktor partially thwarted me. Although Marshall was awarded £500 damages I was left wondering whether the damages might not have been twice as much had not the Herr Direktor with his counsel and solicitors retired to St Francis’ Church during the jury’s retirement to pray for success. Not unnaturally Marshall was a cheerful winner, and I still possess the cup which he inscribed and presented to me:
Collingwood’s Melbourne
North Province Cup
Won by: TALKING
Owner: Eugene Gorman K.C.
Trainer: Harry Walker
Jockey: Bill Slater M.L.C.
Presented by:
Mayor of Collingwood – 1937
Cr. Laurie Marshall.
Some newspapers with high circulation do not realise that public prejudice is too powerful to permit them figuring as successful plaintiffs in libel actions or as successful defendants in actions brought against them. Libel is a topsy-turvy affair. I recall several cases where a plaintiff was clearly defamed, where according to all legal standards his right to succeed in a legal action was clear, but where I strongly advised ‘No Action’. Before an individual appears
in the role of plaintiff in a libel action many questions have to be asked and many facts ascertained.
1, Is there a bias against him in the community?
2. If he enters the witness box, are questions likely to be asked of him which will seriously detract from his reputation although the questions asked are in no way connected with the libel.
3. Has he paid his income tax? Will facts be disclosed which will awaken the Income Tax Commissioner to the prospect of catching another rat in his trap.
So many of these questions should be asked by the legal advisers and so few are. In consequence a plaintiff finds that, through the cross-examination of his career in court, he suffers far more damage than the original ‘libel’ inflicted on him.
Just before the Second World War there was a paper known as the Radio Times, whose proprietor, somewhat eccentric in his views, devoted much of his issue to denouncing The Herald and its executives. The material was obviously defamatory and unjustified and I received a brief to advise The Herald on whether they should embark on litigation. Having answered all the questions in favour of The Herald, I noted that no action should be brought. This seeming conflict between my legal opinion and my advice caused concern at The Herald office. A month or so later a later issue of the Radio Times was submitted to me. I again repeated the legal advice that the article was defamatory and that before a Judge the defendant could not possibly establish his allegation but this time I added that I trusted that if The Herald wished to bring an action it could disregard my retainer and brief other counsel. My advice was reluctantly accepted and a month or two afterwards I left for the. Second World War. As soon as I was out of the jurisdiction, an action was launched against the proprietor of the offending newspaper. It was with great interest, in Egypt, that I read reports of the case. I repeat that the Radio Times had no defence in law but at the conclusion of the proceedings it won the jury’s verdict.
Oscar Wilde’s reputation would be primarily as a dramatist with only passing reference to his sexual deviation had his advisers (when he bought the famous post card to them for advice on bringing as action against Queensberry) said firmly to him: ‘Wilde, this post card is clearly defamatory. We are uncertain of the ability of the defendant to establish justification if he is challenged in court, but we know your reputation in London. You dare not go into the witness box. You will probably lose what reputation you have. It may be that you will finish in the Criminal Court “(as he did in fact)”. Wilde should have been coerced into abstaining from law and advised instead to take three months holiday on the continent. When the advice to go to the continent was given, it was too late. It is pitiful to see a man allowed to litigate when wisdom suggests that he should remain quiescent.
The man in the following story is still alive and an ornament to his profession. Of the fate of the lady I know nothing, but I hope that she is a happy grandmother.
On entering my Chambers one morning I found a young man waiting to tell me his troubles. These were the early days of motor cars, and on the preceding evening he had persuaded a young lady to accompany him in his car, and they went to the Botanical Gardens just near Melbourne Grammar school. The night was lit by a full monn, and under its influence he made considerable progress with the young lady. At a critical stage of their love affair the helmet of a policeman suddenly appeared at the car window, a demand was made for the door to open and a stentorian voice ordered the happy couple to emerge. After an inevitable delay the young man and his friend got out of the car, were separated by the policeman, and both were informed that the officer was seriously thinking of proceeding against them for offensive behaviour in a public place. The discussion took some little while and the clarity of the night enabled my young friend to see the policeman’s number. The policeman then approached the lady and whispered to her ‘You had better meet me here tomorrow night at eight’. So the interview terminated, and the man resolved to seek my advice.
I immediately thought of a senior man who had recently retired from the police force to undertake private investigations. He was short, forceful and truculent. Acting on my advice an appointment was arranged with the private investigator later in the day, and he agreed to act. Despite the tremours of the young lady she was persuaded to keep her promise to meet the policeman in the gardens. When she got there it was dusk; and the policeman, faithful to his promise, was also waiting, this time in plain clothes. Taking her arm he walked towards the scene of the previous night’s encounter. His intentions of course may have been entirely honourable; he may have merely wished to revisit the scene in company with one of the accused so as to avoid any subsequent controversy as to location. Of course the private investigator was not far away, hidden behind the shrubs. During the day he had used the policeman’s number to make some enquiries, and he now knew the policeman’s name, address, and details of his wife and family. He allowed the couple to move into a thick patch of vegetation and then approached them and began to pour his indignation on the policeman: ‘How dare you, meet my daughter night after night. How dare you, Sir act in this fashion, breaking up what was once a happy home and ruining my wife’s peace of mind. You are a blackguard, Sir. You are a blackguard’. The face of the policeman was now in full view and so the private investigator was able to do his final theatrical upper-cut. Suddenly he interrupted himself by shouting ‘Good God, You’re Senior Constable _________________ ‘
There is no occasion for me to carry the story further. There were explanations, apologies, entreaties and requests that nothing should be done; and our private investigator gravely said that he would have to give the matter detailed consideration before coming to a decision.
My young friend, as he grew to maturity and occupied a prominent place in Melbourne, was often embarrassed by me at dinner, not by my telling of the story but by a few casual remarks which caused him to feel that I was on the verge of telling the story. It’s appropriate to observe that some years afterwards I was defending a park attendant in a case in which the principal witness was the same senior constable. I was elated to see him, especially as he knew nothing of my intervention in the gardens’ episode. I proceeded to cross-examine him concerning his noctural habits, his addiction to parks and gardens, and the number of offences he had detected even in places which were outside his beat. The case was before my friend Billy Williams, a highly sociable gentleman but not a good judge. Noting the progress that I was making in my cross-examination and fully determined that it should not disturb the course of justice, he interrupted me violently and informed me that if I proceeded on these lines any further he would ask the witness to give the names of the young couple in the episode concerning which I was cross-examining him. I desisted promptly, and was perhaps thereby deprived of the opportunity of freeing a gentleman who, unfortunately, was convicted.
I wish the writers of textbooks would instruct us what to do when the accused in the witness box, in reply to the Crown Prosecutor, asserts that he has not set eyes on Mr Jones for the last three years. I am painfully aware that Mr Jones has attended a conference only forty eight hours earlier and that he is at the moment looking through the glass door into the Court where the accused is being tried. Do interrupt the proceedings with a request for an adjournment and, at the end of ten minutes, return and state that owing to somewhat unusual circumstances, I must retire from the proceedings? Or do I lean over to the instructing solicitor and say ‘For God’s sake tell that fellow at the door to disappear to the other end of Melbourne’.
I don’t know the answer.
There is general acknowledgment that the high standard of disclosure and good faith required in civil proceedings does not apply in its entirety in the criminal jurisdiction, but eminent writers are very careful to abstain from describing the exact amount of permissible latitude. I have read great tributes to the acumen of cross-examining counsel who held up a blank sheet of paper – as though he were reading from a letter – and enquired from the witness, ‘Is it not a fact that you wrote to Mary in the month of June as follows? These tibutes to trickery, mainly from American sources, are counter-balanced by certain other readings from highly moral writers who suggest that counsel employing such tactics deserve to be disbarred. To this dilemma I can offer no positive answer.
When a hand-writing expert gives evidence, and positively identifies a number of documents as being written by my client, am I entitled to test his expertise by quietly arranging to have some words scribbled by the instructing clerk and the manufactured document placed in the file? Can I then take the witness through the file and secure his acknowledgment that the interpolated document was in fact written by the accused? I am not inventing this situation. I have known it to happen. Always the expert has been as positive about the stray slip of paper as he has been about the others.
Is a device a mere dirty trick or is it legitimate cross-examination? As a young barrister I must admit to the following tactics which at the time I thought clever. I am not nearly so sure now as to the correctness of my evaluation.
An expert witness gave evidence concerning a new city building, which, through ineffective concrete on one floor, was threatened with total demolition. He was very biased and anxious to support the prosecution. My questions went as follow.
‘Now Mr X, I want to be quite sure that you have qualified yourself for your responsible role. In submitting certain titles of books to you I give you an undertaking that I shall not try to perplex you by cross-examining you on the detailed content of the books’. The book ‘Symes on Cement’ was promptly produced. ‘All I want you to do, witness, is to tell me if you have read it’.
‘Yes’ was his answer when he was shown the book.
He was shown another well known text book on bricks, another on building practice, and another and another. When each book was mentioned he was assured that there would be no attempt to confuse him by suggesting that he should be acquainted with its entire contents. Each time the text book was actually exhibited to the witness. Finally he was asked: ‘May I assume, witness, that you know reasonably well the book ‘F.E. Lines on Roofs’, to which the witness quickly responded, ‘Yes’. After he had repeatedly confirmed his answer he was given the verbal blast: ‘F. E. Lines on Roofs’ ! ‘Felines on Roofs’ ! Now what type were these felines – Manx felines, combative felines, black and white felines’, and so on and on. There was, of course, no such book as ‘F.E. Lines on Roof’s’, and the witness suffered acute embarrassment. In fact his embarrassment and subsequent poor performance were so great that it determined the case against the prosecution.
Was that legitimate cross-examination or was it merely ‘a piece of crude work to which no respectable counsel would resort?’ The answer to this question can be posted to me a month or two after my decease.
Whenever a husband and wife or members of a family give evidence on a family case, they have to pass through a moral turnstile. The inevitable queries come from the cross-examiner:
‘Have you not talked this over with your husband?, or Have you not talked this over with your wife?’ I have known witnesses deny with such stubborness that my ironical question – ‘I assume you have not even discussed this with your solicitor’ – received an emphatic ‘No’.
The tendency to deny is common. I recall appearing for a railwayman who was charged with the theft of railway sleepers valued at fifteen shillings. Conviction would have involved dismissal from the railways and the loss of pension rights. Accompanied by my solicitor I warned the railwayman’s wife not to tell a foolish lie if she was asked in court the conventional questions. If, as was inevitable, she had talked over the case with her husband, there was no reason why she should not frankly admit so in court. The case was tried before a kindly Gippsland magistrate. When the prosecuting sergeant rose in great majesty to cross-examine the lady, his first query was, ‘Have you not talked this over with your husband?’ The lady who was most dignified and gracious, turned to the Bench and said ‘Your worship, since this dreadful charge has been laid against my husband we have talked of nothing else’. The response from the Magistrate was immediate: ‘For thirty years I have presided over these courts, and I would not like to say on how many occasions I have heard this or a similar question asked, But never during my long experience have I heard the question so splendidly and honestly answered. Case dismissed’.
Then there arises the question of dress. If a lady of the street happens to be a witness for my client, I have never seen any necessity for her to appear in a picture-hat or to be attired more for her evening labours than for the Court which she is temporarily adorning. How far one can go in dressing up the witnesses, is, I suppose, uncertain. I remember as a boy reading a. case in which Henry Hawkins appeared, and at his instigation a witness – a prize fighter by profession – was given a clerical collar so that he could be mistaken in the box for a clergyman. The biographer of Hawkins appeared to think that this was a wonderful example of ingenuity, but more moral writers might regard it as a gross deception.
I remember appearing for a young larrikin who had grievously wounded his uncle. The defence was that the uncle had provoked him by taunts, general rudeness and cruelty. When the trial took place, it might therefore be an issue of some importance whether the uncle’s taunts had been provoked by the young man. To my horror the young man appeared, a few minutes before the trial, in an ornamental costume which would be bizarre even in these go-go days. I’m unable to recall the exact shades of his costume except that it included purple and pink and colour
contrasts that would be startling anywhere except in a theatre. I at least took the precaution of saying to his solicitor: ‘Look, I don’t care whether your client is fined for contempt through being late for Court, but I would prefer him to appear in the nude rather than in his present attire. Go down to a second hand store and buy something more appropriate for the down-trodden youth whom I’m supposed to be safeguarding’. The metamorphasis was remarkable when the young man appeared twenty minutes later.
Was I right or was I wrong? Again answers can be directed to the address previously indicated.
I am aware of the precautions which English lawyers take to avoid consultations with their clients. I assume that these precautions are observed as faithfully as the authors of text books say. Undoubtedly it serves to protect the barrister from any contamination – a laudable result indeed – but I am far from sure that the bona fide interest of clients is thereby so well served as in Australia where counsel is prepared to have a consultation with clients and hear his client’s views.
I do not think that it is common for counsel to make suggestions to clients that might pervert their evidence or change, their story. I will admit, however, that casual remarks to my clients have sometimes had unexpected results.
Many years ago I was asked to defend an old porter at Spencer Street railway station. My instructing solicitor was Bill Slater, a leading Labor politician who for many years had been solicitor for the Railways Union. The charge against my client was trivial – he was on the eve of retirement and was a man of unblemished character but was said by a railway detective to have pilfered a small amount of milk. The detective claimed he had observed the porter walking with a pink paper – The Sporting Globe – concealing a cannister and that he had poured milk from a large tin can into his own cannister and then placed it in his room. There it was found by the detective.I accepted without much demur my client’s statement that his cannister merely contained milk brought from his own home and that if he had moved the large tin can it was because it was not standing firmly on a level base. The preliminary conference with my client was concluding when I enquired – ‘What did you say to the detective when he arrested you’. The old porter muttered very inaudibly: ‘I denied it’. It so happened that the porter’s son was present at the conference and he must have given his father, that night, very effective advice on the dramatic manner in which he should deny the allegation.
The case was heard before Judge Macidoe and a jury. The usual evidence was given. The porter entered the witness box and deposed on the lines I have already indicated. The cross- examination followed the expected course.
‘You have been thirty five years a porter’….’Yes’.
‘There has been no charge against you either in the Service or out of it?’.… ‘No’.
‘You are on the eve of your retirement?’….‘Yes’.
Tell me, when this detective accosted you and charged you with stealing this milk what did you say?’ The accused raised his hand towards the ceiling and brought it down on the witness box with the force of a sledge hammer. ‘I said, you’re a bloody liar, man’ The jury laughed, the judge laughed, the prosecutor laughed. The judge turned to the prosecutor and said: ‘Mr Prosecutor, do you think that in a case of this character and in view of the trivial amount, and the explanation the accused has given,…..’ The prosecutor bowed humbly, and the jury was directed to give a verdict of ‘Not Guilty’, I hope that the father felt as much obliged to the enthusiastic son as I did.
One difficulty arises in this country through the practice of arranglng consultations with counsel, the accused and witnesses. In the course of such a consultation it is very difficult indeed for some legal participant to refrain from comment when the accused or a witness uses a sentence or a word, the effect of which may be detrimental or even fatal to the accused. I am not suggesting that then the counsel, solicitor or solicitor’s clerk present should actually tell the boy who is out of step: ‘If you give your evidence in that way, the accused is sure to be convicted’. But a startled look an exclamation, or a critical question demanding whether in fact the offending sentence is completely correct, can suffice to make a man step back into line. We know the rules that define what a barrister can or cannot do; even the tyro knows that he cannot put his clients in the box to depose the stories which he knows to be false. But in a court it is often the little things that count – the odd word, the inflection, the emphasis.
Why no true life of a criminal-barrister has ever been written is that the writer would not dare to deal exhaustively with the problems arising from conferences. He would rightly be fearful of risking such reputation as might still remain with him after his career as a criminal-barrister is completed. Other members of the profession and lay readers of his book would be quick to draw the inference that he was a fixer of evidence.
Everyone knows·, and even moralistic authors of text books are prepared to admit, that more latitude has to be allowed in criminal cases than in civil cases. Everyone knows that no duty is imposed on the accused’s legal advisers to lay all facts before the Court. So long as a lawyer’s reminiscences are confined to generalities they may be pleasing to read and not unamusing. My complaint is that none of the barristers who describe their own exploits, and none of the authors of text books, ever grapple at close quarters with the many problems which place a strain upon an ordinary decent man who practises in the Criminal Court, gets a reasonable fee for his services, is entrusted by his client with his confidence, and is anxious to give value for money. I am not prepared to assume the task which has been declined by so many more successful and famous men, and I do not expect to live long enough to see anybody accept that task.
HERE
The topic of police evidence is contentious. That a fair proportion of it is inaccurate is accepted by men of experience. In most criminal cases there is no occasion to tell anything but the plain facts. The problem arises occasionally when the accused is of the criminal class, is suspected on good grounds of being involved in the crime under trial, but the evidence against him is just a little slender. It is then that the pressure is on a not-too-virtuous policeman who has to give evidence. He might add sometimes a sentence, sometimes only a few words, but sufficiently suggestive of an admission by the accused. In the worst episodes, which are more rare but not unknown, miscreants in the police force are prepared to ‘give him the verbal’; I understand the phrase originated in England. It means in substance that when the suspect is ‘known’ by the police to have committed the crime, but evidence is lacking, two young or not so young members of the force take him aside, continue the interrogation, and return with a verbal statement constituting an admission of guilt.
I hope that none of my friends in the police force, or their relatives who may chance to read this, will resent what I have written. It is not intended as an attack on police morality and truthfulness. It is merely a recognition of a state of affairs which exists.
The police really stand together when a member of the police force is himself charged with assaulting a prisoner. Then the troops converge. The prisoner’s black eye, we learn, was sustained as he rushed at a policeman who put his fist up in self defence. The bruise on the prisoner’s head – the evidence is overwhelming – was sustained as the prisoner rushed to the door trying to escape. In the result only a pretty good story can stand up to the weight of policemen, all testifying to misdeeds of the prisoner who alleges that he has been assaulted I know. I appeared in more than one case where police were charged. I even had the experience, as a prosecutor, of being asked on one occasion whether anything more was necessary.
Let us face the facts. For reasons of convenience it is difficult for magistrates, hobnobbing daily with local policemen or sometimes returning to town in the company of the detectives engaged in the case, to be courageous enough to conclude that a policeman has told a lie. Their situation is most inconvenient. If divine justice were being administered the man on the bench would, of course, do his duty nobly. I have read that human justice is at least a reflection of divine justice but I have to confess that sometimes I found that the reflection was rather pale. I cannot see any easy way out. Sometimes the parrot-like recital of evidence by two constables who witnessed a felony provokes winks and nods from the connoisseurs who are listening. As the accused are almost invariably men with prior convictions, their denials are not likely to be accepted. And I suppose we have to content ourselves with the idea that the accused, even if convicted, are still a few points up on the law because of their numerous misdeeds which were not witnessed.
That a man will not lie because he is a member of parliament, a minister of religion, a barrister at law or a policeman is an absurd proposition. Even an heir to the throne may be tempted. Unless my memory fails me, I once read of King Edward VII being acclaimed a gentleman because he entered the witness box in a divorce suit and blandly denied that there had been anything between him and a particular lady. In fact the whole world suspected that sometimes, between him and that lady, was not even a bed sheet.
I hope I will be excused for these comments. I don’t expect to be here to know how they were received. All that I wish to say is that in raising these issues, I have approached a little closer to the edge of the precipice than most and dare not go further for fear of falling to the bottom. I don’t want to give my son or my nephews cause to disown me.
Amongst the many motives I had for ceasing to practice law before I was aged fifty was my aversion to cross-examining policemen in criminal cases. I came to know many of them, I believed them to be as honest as most of us, yet I found myself in the position of having to cross-examine them and to hint at their inaccuracy because their evidence did not tally with the version given by the accused. I began to feel uncomfortable. Even in civil cases I was increasingly embarrassed. This city of ours, though it now contains more than two million people is still not a large one for those who come into the public eye.
How many dozens of time (bit obscured)
asked, ‘Where to, Mr Gorm (bit obscured)
and met many socially, it (bit obscured)
frequently find myself (bit obscured)
decent people was called (bit obscured)
I was appearing. If his (bit obscured)
probabilities favoured a (bit obscured)
giving a different version of the affair. Reluctantly I had to cross-examine people whom I knew and liked and of whose integrity I thought well.
I do not like poachers who become game-keepers nor drunkards who degenerate into temperance lecturers so I disavow any suggestion that I resolved to abandon my evil ways. I simply found myself discontented with the role that I had to play. Had I been of more sedentary habits and spent my Saturday afternoons quietly reading or gardening, instead of ascertaining the latest price about the favourite and meeting people, many of my difficulties would hot have arisen. But my Saturday afternoons and many of my evenings were not spent as a hermit.