The contemporary trial. (Letters).(Comparisons of the possible experiences of an accused in a contemporary trial in Australia to that depicted in Kafka?s allegory The Trial.)(Letter to the Editor)

SIR: One could not overlook the irony of Bruce Dawe's poem, "Family Court", being placed after Nicholas Hasluck's article "The Legal Labyrinth" (January-February 2003).

Mr Hasluck related Franz Kafka's surrealist allegory, The Trial, to perceived bewilderment and intimidation of lay subjects at sudden confrontation with legal procedure and the awesome authority of the institutions of the nation-state. He tried as best he could, but at the end of the day, he is still a lawyer and his aim was, it seems, to praise our legal system.

And so he should. But he missed a few things, and some of the comparisons with our adversarial common law system don't stand up. He tried, but did not successfully put Kafka's Trial in its proper paradigm of time and locality. Continental Europe, especially from Germany to the Balkans and beyond, in Kafka's day was a rigidly inflexible, authoritarian bureaucratic nightmare, where officials ruled like Grand Inquisitors and surreal allegory was the only way to get away with social and political criticism.

The other issue of relevance is the difference of legal systems, which in Kafka's world was inquisitorial and authoritarian, as evolved from the Holy Roman Empire's inquisitions. Our adversarial common law system is more evolved from the Roman republican system with smaller juries; and they work quite differently, even more so in those days. Of course, Mr Hasluck did not invent the correlation but simply commented on it and on common perceptions.

Things have changed and people are not as defenceless any more. We have legal aid and the internet now. We can access every High Court judgment since 1940 and most transcripts, we can access judgments of most superior courts and the statutes of the Commonwealth and most Australian and foreign states (except Western Australia's, where one has to pay $600 first). We have freedom of information acts, limited though their applications are. If we have enough money we can litigate anyone into submission; everything goes; every argument, however absurd, gets a hearing if one can pay.

Be that as it may, and irrespective of the merits of the common law system's better ability to keep the state in check, an impecunious person's inadvertent encounter with the legal system today can be as bewildering, frightening and Kafkaesque as it was in early twentieth-century continental Europe. And that is what Mr Hasluck, apparently, does not understand. Even in twenty-first-century Australia, an accused is still as disadvantaged--and not only in conflicts with the state or the crown--as Kafka's Joseph K in regard to investigations necessary for preparing his defence.

How do you compete with the limitless investigatory resources of the police and the prosecution from a prison cell, for instance? If you can pay you may hire top silks and professional ...