Justice measured: one judge short?

The number of ACT local politicians is soon to go from 17 to 25, but the judges are stuck on 4, as they were a quarter of a century ago.

Justice measured: one judge short?

By Jack Pappas

Everyone in the ACT* with a passing interest in our courts and our legal system knows and understands that we need a fifth resident Supreme Court Judge.

* except, it seems, our Attorney-General Simon Corbell

The population of Canberra has grown from 270,000 people at about the time of self-government in 1989 to a population 26 years later in 2015 of more than 379,000. Unfortunately that growth in population has been accompanied not only by a growth in crime, but also a growth in civil litigation.

The ACT Legislative Assembly recently voted to expand its number from 17 to 25 at the 2016 election, an increase of 47% and roughly in line with the 41% increase in population.

act supreme courtUnfortunately our judicial resources have not kept pace.  Although large chunks of what was formally Supreme Court jurisdiction have been conferred upon the Magistrates Court, the Supreme Court continues to be a busy court.

Not all judges work at the same pace and neither should a reasonable public expect them to. The quality of justice is not measured by its speed of delivery.  Indeed, often the converse applies.

There ought to be room for judges who write detailed and careful judgments examining the law and laying it out in terms which not only lawyers but interested members of the public can comprehend and apply in their everyday dealings each with the other.

We have had and we continue to have such judges, but too often they have been criticised for the slow delivery of judgments.  The answer is not to pillory hardworking, conscientious judges but to provide sufficient and appropriate judicial resources to allow the work of the courts to be conducted in an orderly and unhurried fashion, resulting finally in dispensing high quality justice.

Until you are caught up in either the criminal or civil justice system it may be hard to muster much enthusiasm for the subject of the provision of legal resources, proper case management or the amorphous concept of “the interests of justice”. Once you are swept into the legal system, however, it is hard to ignore those issues: more and more Canberrans are becoming involved each year.

The quality of a judicial system is not measured by the number of cases squeezed through the system in any 12 month period. Dispensing justice is not like making sausages.  You can’t simply crank the handle faster and point to a growing pile of sausages as some measure of your efficiency and productivity.

I suggest there are a number of things anyone caught up in the judicial system as a litigant (civil or criminal) want and I believe deserve:

i.              A timely but not rushed disposition of their case.

ii.             Their choice of solicitor and barrister.

iii.  A fair judge with sufficient time to hear their case, consider the         facts and law and deliver a clear and properly reasoned               judgment.

iv.            Affordability.

The present system is broken. Those fundamental aims are not being met and nobody is apparently prepared to say out loud “The Emperor has no clothes”.

The ACT Director of Public Prosecutions, Jon White SC, has recently complained about the listing procedures in the Magistrates Court (2013-14 Annual Report) including the need to abolish case management hearings.  He is faced with a need to concentrate his trained prosecutorial staff on so-called “significant matters” in the Supreme Court and to delegate minor prosecutions in the Magistrates Court to “paralegals”.  That is to say, people without a law degree but with some knowledge of the law and how the system is meant to work.

Case management hearings, like the now innumerable directions hearings in the Supreme Court, add very little, if anything, to the efficient administration of justice and very considerably to the costs of litigation.

Case management is the notion that a Judge or Magistrate, usually with only the most fundamental understanding of the issues in a case, can “manage” the case to early, efficient and cost effective conclusion more expeditiously that the trained and experienced lawyers who have had carriage of the matter from the start.

Occasionally, in my experience, there will be lawyers on both sides of a case who are inexperienced and need some degree of management, but more often than not the entire exercise is a time consuming, costly, tedious and entirely unnecessary kowtow to the God of Management for Management’s Sake.

In the Supreme Court we have seen the ‘civil blitz’ as a tool designed to clear the backlog of cases and more recently the “pilot central criminal listing” (a blitz by any other name) as a tool for forcing ever more sausages through the machine.

Retired judges are brought in and rebranded as visiting justices to try to churn out more and more sausages, presumably in an effort to please the keepers of statistics and to demonstrate just how effectively the system can work without a fifth judge.

The whole process is skewed by “management” and the idea that in a small jurisdiction like the Australian Capital Territory you can simply list matters to proceed in the Supreme Court before a visiting judge without any real regard to the commitments of legal practitioners on the same day in the Magistrates Courts (both in the National Capital and in Queanbeyan) or the District Court in Queanbeyan, which sits on a regular basis.

The retainer of a solicitor and a barrister is a decision which I imagine is made carefully, weighing up many factors including their experience, their reputation, their personal characteristics, their affordability and the seriousness of your situation.

Booked well in advance

Good solicitors and barristers, like good surgeons, good accountants and good professionals of every kind, are busy and generally booked up well in advance…for good reason.

For a litigant to be told months and sometimes years into a court case that they simply have to find someone else to appear for them because it is expedient to “manage” their case into a hearing date which cannot be accommodated by the solicitor or barrister (or both) of their choice is not good case management.  It can rarely, if ever, be justified by reference to that amorphous concept “the interests of justice”.

There is an increasing demand for accountability in relation to functions which are described as administrative but which are closely related to the judicial process.

It has been said that the function of the head of a jurisdiction or judge administrator to assign members of a court to hear particular cases or to allocate the business of a court for disposition according to certain internal arrangements should be free from external interferences as an essential aspect of judicial independence.  That does not mean, however, free from scrutiny.

Understandably the public and other branches of government want to be satisfied that the courts are using the funds made available to them wisely. It is natural enough that there should be a demand for accountability in respect to the way in which courts apply public money.  That, however, is not the end of the matter.

There is a well-recognised judicial immunity from suit in relation to acts done in the exercise of a judicial function or capacity.  As expressed by President Kirby in Rajski v Powell (1987) 11 NSWLR 523 at 527:

It is a fundamental principle of our law that a judge of a superior court is immune from civil liability for acts done in the exercise of his judicial function or capacity. Such immunity rests, as it has been said, upon considerations of public policy. Its object is not to protect judges as individuals but to protect the interests of society. The purpose of the rule is to preserve the integrity, independence and resolve of the judiciary and to ensure that justice may be administered by such judges in the courts, independently and on the basis of their unbiased opinion not influenced by any apprehension of personal consequences.

Even if a judge were to take a bribe and enter judgment in favour of the corrupt party, that judge would nevertheless be immune from a civil action for doing so.  See Yeldon v Rajski (1980) 18 NSWLR 48 per Kirby J at 58.

There would, of course, be no immunity from the criminal consequences of such conduct.

For a Supreme Court judge to say well, it may cost your client $10,000 or $12,000 to retain another solicitor or another barrister at this stage; and that solicitor or barrister may not be the one you want and you might not like them or you might not have the same degree of confidence in their ability but that is just tough luck is neither fair nor is it in the interests of justice.

The income of a Supreme Court judge is not that of an ordinary member of the community.  The Average Weekly Ordinary Time Earnings of a member of the public in the Australian Capital Territory is $85,845 per annum.  Many who come before the Supreme Court are not earning $85,845 per annum.  Even if they are, $10,000 or $12,000 represents about 14% of their gross annual income.

The interests of justice is a wide concept incorporating the interest of the community in the timely resolution of disputes and the timely administration of criminal justice; the interests of the parties to the dispute, including the interests of any alleged victims, and the interests of the community and the parties in a fair and affordable system of justice.

To ignore practitioner’s commitments in other courts when listing matters for hearing in the Supreme Court or, if not to ignore those matters, to provide very little flexibility, is to engage in ostrich management. Apart from the irrecoverable expense there is the serious erosion of confidence in a system which forces people, sometimes at a late stage or even after witnesses have been examined at a preliminary hearing, to find new legal representatives.

There are various statements in the cases about the importance of litigants being able to retain the lawyer of their choice…but usually qualified by the observation that the public interest in litigants not being deprived of the lawyer of their choice is not an absolute and choice may have to give way to “good cause”.

“Good cause” is not defined.

The impossibility of recovering costs thrown away or wasted by the court managing a case in such a way that counsel of choice becomes unavailable is rooted in arcane tradition to do with “The Crown”. As Chief Justice Griffith expressed it in the High Court in 1906: “The reason formally given for the rule was that it was beneath the dignity of the Crown either to receive or pay costs”.

That position can be reversed by statute but has not been in relation to Supreme Court criminal prosecutions in the Australian Capital Territory.

In 1992 Justice Higgins of the ACT Supreme Court, as he then was, considered the question  in the Sam Scott case – R v Sam Scott [1992] ACTSC 32 – whether it was “just” that someone “accused of an indictable offence and committed to stand trial … should be financially penalised by properly incurred legal costs if the accusation fails or is withdrawn”.   He concluded without doubt that it was unjust.

His Honour pointed out that, since the 1972 decision in McEwen v Siely – (1972) 21 FLR 131 – the “general rule” in inferior courts had been thrown out and commented that the so-called “general practice” (not to award costs against the Crown) in the Supreme Court “though hallowed by repetitive application had no more underlying virtue to support it than the ‘general rule’”.

In the Sam Scott case Justice Higgins found a way around the so-called “general practice” because the Crown withdrew the charges against Mr Scott before an Indictment had been presented.  His Honour said he was exercising supervisory jurisdiction and not criminal jurisdiction, and he ordered the Crown to pay Mr Scott’s costs of and incidental to the committal proceedings as well as his costs in preparing for his trial in the Supreme Court.

The ACT Attorney-General and the ACT Government has, since that time, all but abolished committal hearings so that there is now virtually no sifting and analysis of evidence gathered by the police. Matters pass through a perfunctory committal process which involves, in almost all cases, a Magistrate reading the various witness statements prepared by police and satisfying themselves by application of a test heavily slanted in favour of committal that the accused has a case to answer. The matter is then committed to the Supreme Court for hearing.

That process is yet another unnecessary and expensive speed bump on the road to justice. If committal hearings are a rubber stamp process (and they now largely are), get rid of them altogether.

The fact is that committal hearings as they once were served a very useful purpose in pointing out Swiss cheese holes in cases put together by myopic police. Many people were discharged at the committal hearing stage and had their costs paid and their outlays reimbursed.

No doubt the bleating of the ‘law and order’ claque demanded more people be sent to trial no matter how unsatisfactory the evidence against them might be and despite the fact that if acquitted at trial they could still be financially ruined.

One small stepreversed

In due course Justice Higgins’ small step in the Sam Scott case was completely reversed on appeal by a bench of three judges. Hill J found that the proceedings before Higgins J were inextricably part of criminal proceedings that would have followed the filing or presentment of an Indictment and were, therefore, to be classified as criminal proceedings so that the “general practice” applied.

Cooper J found there was no jurisdiction for Higgins J to make any order because the Director of Public Prosecutions had determined not to proceed with Mr Scott’s case and he was thereby discharged from the Magistrate’s order of committal and his bail obligations. Miles J simply agreed with Cooper J but endorsed the views of Hill J.

In the concluding words of F Scott Fitzgerald’s novel The Great Gatsby:

“So we beat on boats against the current borne back ceaselessly into the past”.

Every week in the Supreme Court matters are called up for directions hearings; micro-management takes place; lists are formed, re-formed and amended; matters are listed for hearing to suit the convenience of the Crown, the judges (both resident and visiting) and accused persons are afforded very little leeway in terms of their convenience, their choice of legal representative, or the irrecoverable costs to which they are exposed.

Cooper J in 1993 in the Sam Scott appeal concluded his judgment with the observation that Mr Scott had “suffered a serious detriment in the matter of costs” but one which could only be cured by statutory law reform.

In the intervening 22 years there has been no such law reform and the sausage factory management of cases in the Supreme Court results in more and more irrecoverable costs being incurred on a regular basis.

Accused persons should not be treated as second class citizens when it comes to case management.  Their interests (especially their financial interests) should not be subjugated to the so-called interests of justice in pushing cases through the system.

Statistics do not make a good, fair or healthy justice system.  In fact they tend to obscure the underlying ills and injustices of the system.

My understanding is that some of these concerns have been raised by the Bar Association of the Australian Capital Territory with the Chief Justice.  Notwithstanding those approaches, management of cases continues apace.

Someone at some stage needs to take a good long, hard look at just exactly what is being achieved by micro-management of cases in the Supreme Court; how much that management is costing litigants; where that expense will eventually appear in the public balance sheet and whether the failure of the government to provide sufficient judicial resources is the real driving force behind the management and the root cause of the problem.

pappasJack Pappas is a Barrister-at-Law with 35 years experience in the ACT.  He is also a member of Civil Liberties Australia.

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