Judging judges is fraught with dangers, says Louis Coutts. In any examination of the legal system, we should also examine the competency of prosecutors and defence lawyers.
Judicial independence under assault
By Louis A Coutts*
The hungry Judges soon the sentence sign,
And wretches hang that jury-men may dine.
– The Rape of the Lock, Alexander Pope
There was more truth in that statement during the time of Pope (the early 1700s) than there is today. However, one of the given attributes of Judges in Pope’s time was their independence, which had been hard won.
In the early decades of the 17th century, Sir Edward Coke, who was Chief Justice of the principal judicial system in England, annunciated the legal proposition that the Crown was subject to the law. This resulted in him being sidelined by James 1st as a result of which Coke entered Parliament and constantly campaigned for the independence of the Judiciary thus infuriating the Monarch. The issue reached its absurdity when James’s son, Charles, ultimately lost his head at the insistence of Cromwell. Earlier, Sir Thomas More, although not a Judge, would not bend to the insistence of Henry VIII to support Henry’s insistence that the Pope annul his marriage with Catherine of Aragon. He paid the price with his head.
Gradually, our Anglo Saxon legal system evolved into one of the three arms of government that have become recognized as the Legislature, the Executive and the Judiciary. Concurrently with that evolution was the theory of what we call “The Separation of Powers” which is an inseparable and critical ingredient of our governing system. The doctrine of the Separation of Powers establishes that each branch of government shall be strictly independent of the other. This means that a Judge cannot legislate, nor can the Executive or Legislature perform the functions of the Judiciary. It also means that a member of the Executive Branch of government cannot influence a Judge in the performance of his or her duties except by way of legal representation in open court where the opponent of the Executive is also represented. Any attempt at a back door approach to a Judge is deemed to be a criminal act (which is an activity with which High Court Justice Lionel Murphy was accused, but acquitted). Any attempt on the part of the Legislature or Executive or members of those institutions to constrain the judiciary in its free exercise of its judicial functions undermines the concept of the separation of powers and erodes the independence of the judiciary.
The independence of the Judiciary is a fundamental protection against undue influence being brought to bear on a Judge in any Court proceedings. By way of an example as to how this concept of judicial independence can be insulted, there is widespread belief in the West that President Putin instructs the Judiciary in Russia how to deal with his political opponents. The consequence of this is that, no matter how innocent a person may be in a Russian Court, if it is the wish of the President to punish that person, he can simply do it by instructing the Judge hearing the case to convict and imprison that person, so the belief goes.
The consequences of suspending the independence of the Judiciary would be catastrophic.
As against that, there is the argument that Judges can and do get it wrong with disastrous outcomes for affected parties. There is a widespread public perception, generated by persistent and uninformed media commentary, that Judges are too lenient and criminals get off too lightly. This perception has become so widespread that it is good politics to lambaste the Judiciary so as to justify legislation that is said to be “tough on crime”.
Laws that impose mandatory and minimum custodial sentences are becoming more and more common with the result that the act of sentencing, previously having been the province of the Judge, has now been assumed by the legislature. The only saving characteristic of this legislative insult to the Judiciary is that the punishment inflicted by the legislature comes after conviction and the actual process of court proceedings leading up to a conviction is still in the hands of the trial Judge. Even that is no longer the case in terrorist trials where the legislature suspends procedural protections that are traditionally enforced by the Judiciary, thus emasculating judicial independence.
The legislature of Queensland has gone even further by passing legislation that proscribes certain conduct of members of “bikie” groups resulting in them being imprisoned in solitary confinement without bail even, though they have not been convicted of any offence.
There is a pronounced move by legislative bodies at both the Federal and State level to remove sentencing discretion from Judges: nothing could be a more blatant transgression of the doctrine of the Separation of Powers, not to mention an attack on the independence of the judiciary.
There are other episodes of the assault on the doctrine of separation of powers that are not relevant to this essay but are worth mentioning briefly as an indication of the slippery slope we are on to a complete abandonment of this concept designed for the protection of the individual.
For example in cases of control orders pursuant to anti-terrorist legislation, the legislature imposes on the Judiciary the responsibility to control or limit the behavior of individuals who have not been convicted of any offence but are said to be a terrorist threat a la David Hicks and Jack Thomas. It is the role of the legislature to define proscribed conduct and not the Judiciary. However, let us return to the theme of the independence of the Judiciary.
Not only are our legislative bodies directly assuming the role of the judiciary in the imposition of sentences for different offences but the Federal Parliament is conferring on members of the Executive certain judicial powers. For instance, it is not commonly known that Fisheries inspectors have the power to imprison people and have them transferred to any custodial institution in Australia without the person having been charged with any offence.
Sadly, these are only examples of the extent to which the lines of separation of powers have become blurred as a result of legislative and executive activity. Even sadder is the fact that our High Court has given its imprimatur to many of these jurisprudential insults.
Despite all this, there is a feeling within certain segments of the community that Judges should be subjected to much stricter controls so that any judge who is incompetent can be called to account and dismissed. The formal process of dismissing a Judge in Australia is by way of a successful motion of both Houses of Parliament. This technique was used to dismiss Justice Vasta from the Queensland Supreme Court during the reign of Premier John Bjelke-Petersen and brought little credit to that regime. Vasta used his right to address Parliament and I am told that his address was so persuasive that Bjelke-Petersen had to use all of his authority to enforce the vote to dismiss Vasta.
Some believe that this process of making Judges accountable prevents an effective oversight of the Judiciary. At the moment, the formal process of overseeing the performance of Judges is the appeal process which is rigorously entrenched in our legal system here in Australia.
Judges do make mistakes
Having said that, Judges do make mistakes and there are occasions where decisions of the judiciary confront the thought processes of rational individuals. Often such mistakes are corrected on appeal but there are occasions when the mistakes are actually made by the final Court of Appeal such as the High Court.
For instance, in the case of Al Kateb v the Minister for Immigration, the High Court was confronted with a legal dilemma. The Immigration Act provided that a person who was not an Australian citizen could only reside in Australia if they had a valid visa. In the absence of a valid visa, they had to remain in confinement until transferred to another country. In the case of Al Kateb, he had no papers, was refused a visa but all attempts to find another country to which he could be deported failed. The literal interpretation of the Act meant that he had to remain in indefinite detention which, in his case meant life imprisonment. This, of course meant life imprisonment without ever being charged with an offence.
It is the judiciary’s role to imprison people, not the legislature’s. Nevertheless, the majority of the High Court (Kirby J dissenting) had little difficulty putting its imprimatur on this abuse of the separation of powers and the independence of the Judiciary. Fortunately, Executive wisdom as against judicial intransigence overcame Al Kateb’s difficulties and he was finally issued with a temporary visa and has become an Australia citizen.
The Sue Neill-Fraser case in Tasmania has been quoted as a case of judicial errors and procedural irregularities resulting in a 20-year prison sentence for the person accused of murdering her partner. Sadly, there are many cases in the history of Western legal systems where people have been wrongly convicted and where the judicial system has failed to protect that individual. Fortunately, the cases are rare but nevertheless are catastrophic for the victim. These legal tragedies then become the focus of the imperfection of the judicial system and it is indeed encouraging that community pressure sometimes results in these terrible injustices being recognised. They can never be put right.
It is also fortunate that we live in a society that can still freely express our displeasure and anger at perceived or real injustice. However, once we remove the oversight of judicial behaviour to the Executive we are tampering with the doctrine of the separation of powers as well as the institution of the independence of the Judiciary. We are already part way down that track and the results are appalling.
On the other hand, we have to measure the overall performance of our judicial system which labours under the handicap of the absence of a Bill of Rights. Judges will make mistakes, many of which will be set right on appeal. Sadly, there will continue to be some Judges who are unfit for office but happily, in my experience, these episodes have been delicately handled with the retirement of the person as a result of counselling by his or her fellow Judges.
The alternative is to introduce measures that further erode the independence of the Judiciary..
We live in an imperfect society and one would hope that our legal system is sufficiently perfect to avoid the incarceration of innocent people, but occasionally it fails. It would be wonderful to achieve perfection but sadly, we have to accept the next best which is a structure of safeguards in our jurisprudence that is intended to minimise error. While this system may or may not have failed in the case of Neill-Fraser (it certainly did fail in the case of David Hicks), in the vast majority of cases, it works well. Hopefully, if Neill-Fraser is innocent, the community activity and the work of man people acting pro bono will ultimately result in her freedom but if to achieve that freedom we have to abandon the independence of the Judiciary, then the cure will be worse than the disease.
What is often overlooked in situations where the outcome is considered unjust is the role that prosecution and defence lawyers have in the criminal process. Not infrequently, these travesties, when uncovered, are traced back to either the innocent or deliberate concealment by the prosecutor of evidence that might in fact be favourable to the accused. In a recent case in the USA – where a person was convicted of murder and had spent 25 years in prison – investigations revealed that there was documentary evidence of his alibi which had been concealed by the prosecution. Its discovery resulted in the prisoner’s release.
Just as Judges don’t always get it right, the competency of defence lawyers does not always measure up to the standard required, resulting in an accused being inadequately represented.
*Louis A Coutts is a lawyer and a CLA member from Victoria