Victoria's judges are effectively unaccountable

Justice Ipp of the NSW Court of Appeal explains:

Once a judgment is given, it is scrutinized for errors [by] armies of highly paid barristers and solicitors. There can be no other profession - exposed to such rigorous scrutiny. I think it laughable when members of the public say judges are not held accountable. (2004 NJC Conference Beijing)

And Justice Chernov (2002) likens the judge’s situation to "having a police car driving immediately behind you - it is rare that in those circumstances, the speed limit is exceeded".

In normal circumstances the above comments are well-grounded, but we will shortly see how they fare in circumstances outside the norm.

Justice Ipp (2004) highlights the profound trust reposing in the trial judge to ascertain the relevant facts in any given case, and emphasises how heavily dependent appellate judges are on the trial judge in assessing credibility of witnesses:

Appellate judges accept that not having seen and heard the witnesses puts them in a permanent position of disadvantage as against the trial judge. Thus, appellate judges are very reluctant to overturn the decision of trial judges as regards "primary" facts. [They] generally consider only those facts determined by the judge in the trial court. They rarely receive additional evidence.

Thus the trial judge decides who will be believed, what evidence goes into the judgment, how that evidence is presented, and, very importantly, what evidence does not go into the judgment. Clearly, if the appellate process is for all practical purposes dependent upon the material in the judgment, the rectitude of any given appeal is dependent upon the integrity of the trial judge who wrote it.

This begs the question: can we be assured that every trial judge is a person of integrity?

By way of answer, the writer will backtrack to undergraduate days and an illuminating lecture by that pre-eminent jurisprudentialist, H.L.A. Hart. Professor Hart claimed no judicial selection process could get it right every time, and this unfortunate fact meant occasionally well-qualified jurists who were in some way flawed made it onto the bench. He offered various examples: they might not possess the diverse skills required, they might have latent socio-psychological problems, or they might lack the trustworthiness to do the right thing when faced with difficult decisions.

Accepting Herbert Hart’s claim for now, let’s place one of his flawed judges in a supposed trial scenario with a common-enough judicial dilemma: if he finds for the plaintiff he will have to consider further complex and bothersome issues, but if he finds for the defendant, the case is dismissed and he’s done with the matter.

Let’s say the judge’s problem is that the evidence heavily favours the plaintiff. For example, we’ll say the defendant admitted to dishonestly assuming ownership of the plaintiff’s assets, admitted to lying under oath about these same assets in earlier proceedings, admitted to taxation fraud, and demonstrably lied on important occasions throughout trial.

Well, you say, Renate Mokbel was jailed for lying under oath about her assets, and we all know Marcus Einfeld’s dismal predicament. Then there’s the deadly serious treatment of potential perjury with Steve Vizard, Belinda Neal, John Della Bosca, Richard Pratt, and more recently various high-ranking Victorian police officers. We know too, Glenn Wheatley went to jail for taxation fraud. No judge could ignore such criminal admissions, you say. As for the defendant’s dishonest possession of the plaintiff’s property: no judge could ignore that either.