Laws of Man vs Laws of Nature in the Due Diligence Context

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis discuss the differences between the "laws of man" and the "laws of nature" in the context of due diligence engineering. 

Drawing on their experiences as Expert Witnesses in the Australian and NZ judicial systems, the conversation covers the following key points:

• A brief history of Common Law.
• The adversarial system in common law, where lawyers argue different sides of a case before a judge or jury, differs from the inquisitorial system in civil law jurisdictions.
• The principle of "innocent until proven guilty" is a logical consequence of the adversarial system, rather than a fundamental legal principle.
• The Scottish legal system has a third verdict of "not proven" in addition to "guilty" and "not guilty", which the speakers suggest is a more pragmatic approach.
• Expert witnesses in court proceedings have a duty to the court rather than the party who hired them, which can lead to challenges when presenting evidence.
• Engineers need to manage the laws of nature first and then satisfy the laws of man in the courts.

 Find out more about Richard and Gaye’s consulting work at https://www.r2a.com.au.  

Transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss the difference between the laws of man and the laws of nature.

(00:14):

We hope you enjoy their chat. If you do, please give us a rating and subscribe on your favourite podcast platform. If you have any feedback or topic ideas, we'd love to hear from you. Email us admin@r2a.com.au.

Gaye Francis (00:33):

Good morning, Richard. Welcome back to another podcast session.

Richard Robinson (00:36):

Good to be here, Gaye.

Gaye Francis (00:38):

Today we're going to talk about the law and the differences in the laws of man, but we also have to relate it back to the laws of nature, which is really where the due diligence aspect comes from, especially for our type of work.

Richard Robinson (00:54):

That's right. In order to be safe or efficient or however you want to define it, due diligence means you've got to manage the laws of nature in a way that satisfies the laws of man. And the triggers, of course, the laws of man actually does vary a little bit from place to place, which can be quite confusing. Now, R2A does spend a fair bit of its time within the legal system. It's not something we actually choose to do so much as we get invited to do. So, for example, I spent some time at an expert witness case, the Supreme Court of Sydney with a fellow called John Agius Special Counsel. The judge hadn't read my expert opinion, so I had two hours just talking to him about various things, picking his brains as you do. And for example, that R2A sponsored the professor Law of Public Policy out from Cambridge in 2018. I think it was. Because he had a book out "Law As Engineering", and he was comparing what the lawyers do with what engineers do. And there are some significant parallels between the management of laws of nature and the way in which the laws of man goes about things and does things.

(01:52):

So what I thought might just be worth going through and making a few remarks about all this from the point of view of how engineers interpret what we've being told. Quite a lot of this is important in the sense that a lot of the principles the lawyers actually enunciate is a logical consequence of how things are done and how they've gone about it. For example, and I think we talked about this before, the way in which the adversarial system arose in the English common law system, it was King Henry II, they'd had a civil war. The king tried to extend the power of the king with these feudal lords who'd been on one side of the fight or the other before he became or ascended the throne.

(02:25):

And so he appointed his own Lord judges and those Lord judges took the book of common law and went through each of the fiefdoms acting as the judge instead of the previous Lord. And that means that English Law Lord had to have the same power and stature as the Duke or whoever was in charge of a particular fiefdom. And what they did was if they found the law that was common, nine out of 10 fiefdoms, then that was the common law which they applied in the 10th. Now, this has a number of direct consequences and you can pretty easily see that if you're a judge that just turned up from London on a circuit you'd never been to this place before, and some people having a dispute about something, how do you work it all out?

(03:02):

There's a couple of things you do. First of all, you are in charge of the law. Nobody else gets to decide the law. You might've noticed we were sitting in a VCAT tribunal just recently. The lawyers were having the discussion, we will decide the law, and our side was just a young couple and us. But when it came to laws of nature, that's when we came to the fore and how they were going to be managed. Now that's the first thing, the system, they hold onto that.

(03:27):

The next thing is that you do get this adversarial system because you turn up at a place you've ever been before. How does a judge come to a view about what ought to be done? And the answer is, well, the court has a court appointed representatives, barristers or lawyers, who put forward the case in a way in which the judge can understand and then they start to stash it out. And then legal arguments ensues. But it's meant to be reporting on what actually happened, the events in some constructive way. But that means those representatives have to become officers of the court. And when we're an expert witness, our first duty is to the court, not to the person who's paying us, which obviously breaks all the codes of ethics of consulting engineers. But that's the way it's done. I mean, I think it only eever happened to me once. The way it's supposed to happen is that when the other side discovers who the expert witnesses, they say, oh good, we won't have to hire ours. We'll rely on them. Doesn't happen very often, but it's very nice when it does.

Gaye Francis (04:27):

So you're working for the court and you're giving the information to the court to make an informed decision.

Richard Robinson (04:31):

That's correct. Now it's done on an adversarial basis. Now, this is where it sort of gets kind of curious because I don't know if you've ever watched Rumpole (tv show) and Leo McKern and all those sort of interesting cases, but he always had this thing about the golden threat: Innocent until proven guilty. Now innocent until proven guilty, it's not actually a principle in itself. It's just the logical consequence of having an adversarial system. Because when you go to court, the only way you can have a trial is if you plead not guilty or innocent, right? Because if you plead guilty, the trial's over apart from the penalty. So it has to be that way.

(05:08):

Now that compares itself to the Inquisitorial European, Napoleonic Roman law system where it's inquisitorial. Now if you apply that principle in an inquisitorial system, what are you going to do? Talk to the entire population to find out who's potentially guilty. The only way you could do it in Inquisitorial system is to assume that a certain pool of people are guilty and then keep asking questions until you've figured out which one probably did it.

Gaye Francis (05:32):

So you're proving that the others are innocent

Richard Robinson (05:34):

In effect, yes, but they're the consequences of the different process. It's not a special principle in itself.

(05:41):

If you choose to have an adversarial system, you must be innocent until proven guilty or you can't have the argument. Conversely, if you have an inquisitorial system, you must assume that which the guilty pool are and then prove each of them innocent.

(05:55):

Now that leads onto Scot's law, and I do admire the Scots in this one. I once did a course in Scotland. They were doing London leads in Glasgow a long time ago. And so I turned up in Scotland to give a course. And I didn't realise Scot's law was quite so different. You see in the adversarial system it's guilty or not guilty. The Scots aren't quite as trusting as that. They have a different opinion. They have three outcomes. You can be proven innocent, you can be proven guilty, or the charges can be not proven. Now, I think if you get taken to court and it can be shown beyond reasonable doubt it had nothing to do with you, that's an important finding. If the charge is not proving the Scots reserve the right to give it another bash at a later date if new evidence arises. It seems to me the Scots have a very pragmatic view of the law, which is superior to the English adversarial system. Guilty and not guilty that we...

Gaye Francis (06:53):

Have here in Australia as well.

Richard Robinson (06:54):

Yeah. Now, I'm all in favour of being given the benefit of the doubt and the idea that basically you've got to be proven guilty beyond reasonable doubt before you'd be put away for a long time and all those sorts of things. So you get the benefit of the doubt. But I think the Scots have got a much better understanding of what the possible outcomes actually are. And I would've thought if we were talking about law reform commissions in Australia, consideration to adopting the Scottish model would be something we should think about.

Gaye Francis (07:21):

Well, we've talked in a number of other podcasts as well and it's, it's not a justice system per se, it's a governance system that will go through the process. It'll be due process.

Richard Robinson (07:34):

Correct.

Gaye Francis (07:35):

And so that sort of feeds into that guilty not guilty...

Richard Robinson (07:38):

They do promise justice. They promise due process. Engineers' Australia's quote: What is a fact? Is it what actually happened between sensible and smart? Most emphatically? Not at best. It's only what the trial court, the trial judge or jury thinks happened. But the trial court, the judge or jury may be hopelessly incorrect, but that doesn't matter legally speaking. I used to think I was in contempt of court for that until I found that happy quote from Engineers' Australia. I assume they have good lawyers.

Gaye Francis (08:05):

So I think that's one of the interesting things, isn't it? You go on, and that would be our experience in some of the court cases that we've been involved in. You have very clever lawyers and some of the things that are presented are very focused in and targeted in a particular direction.

Richard Robinson (08:26):

Well, I better not talk about the case in particular, but I remember doing one in a county court, I think it was... There was a six person jury panel when I turned up to do my piece, which was a genuine surprise to me, and I couldn't figure out why until I sort of got in there in the afternoon. A different jurisdiction do things in different ways. In Victoria expert witnesses don't get invited till they're needed. Whereas when I was sitting around the Supreme Court in New South Wales, you get to listen to the whole proceedings, you know exactly what's going and just how rotten the other opposing barrister may or may not be. But in this instance here I was a bit nonplus because it wasn't a big matter and I was surprised to find a jury panel. Anyway, what I did was I pulled up my report to talk to it because in the past what I've discovered is your barrister and, quotation mark, sort of says, who are you and why might you be an expert? And all these different questions they ask you. And then they make you, what the expression is, read your report into evidence. And they'd take you through your report to make the key points and things like that. Now, I pulled my report out to get ready to talk to it in the witness box and the opposing barrister said: He's going to read from his report. I said, what?

(09:34):

And then I got kicked out, the jury got kicked out, and the two barristers were going hammer and tongs before the magistrate. A little while later we get called back in and I think I worked out what happened. You see in my report I had a series of photographs showing what had happened and I'd gone through the four tests of causation. And I said, based on this, my expectation, if this matter goes to court, then I would think that the plaintiff will win the case and the defendant will lose it.

Gaye Francis (09:59):

So you put a finding in there.

Richard Robinson (10:01):

I put a finding in there. Now as I sort of discovered there is a rule that an expert witness is not allowed to lead a jury to a conclusion. And that was a conclusion.

(10:14):

Now if it was just trial by a judge, which is what I was expecting. Whether or not I've drawn a conclusion or not, the judge gives no cognizance of that. They'll listen to my argument and think whether the argument's reasonable to circumstance and therefore the finding should go one way or the other. But when there's a jury involved, I'm not allowed to do that. So that meant the barrister on my side should have told me to take that out just in case trial by jury happened. But having left it in, if you did have trial by jury, that could not be led in evidence. So the reason why I came to that conclusion was because my photographs were allowed to be submitted to the jury when we all came back inside and the barrister asked me all the core questions that were in my report, but my report was never entered into evidence.

Gaye Francis (10:57):

But didn't ask you that final question. What are your thoughts on: What would happen if?

Richard Robinson (11:02):

Well, that's correct because that was not appropriate in front of a jury.

Gaye Francis (11:05):

Yep.

Richard Robinson (11:05):

But that means the entire legal system was set up and my report wasn't helpful to the defense, let's put it that way. So the opposing barrister thought they'd do something clever and panel the jury, get rid of my report, which didn't seem to work too well for them. But anyway, that cost an awful lot more money, consumed the time resource of a whole lot of our citizens. But that was the process.

Gaye Francis (11:25):

Yeah. So I guess just in wrapping up this podcast, there are different ways that the law can be interpreted and different ways.

Richard Robinson (11:37):

Jurisdictions.

Gaye Francis (11:40):

Thank you! So you just have to be mindful of that. But always in our work that we do, you're always managing the laws of nature first.

Richard Robinson (11:48):

Yep.

Gaye Francis (11:49):

Then in a way that satisfies the laws of man.

Richard Robinson (11:51):

Correct.

Gaye Francis (11:52):

So credible, critical issues, make sure all reasonable practical controls are in place.

Richard Robinson (11:58):

Indeed.

Gaye Francis (11:59):

Thanks for joining us again, Richard, and we'll see everyone next time.