Despite extravagant assurances from the Victorian Government for the judicial complaints system it produced in 2005, the regrettable truth is that so seriously flawed is the basic design structure, it is completely dysfunctional.
It is commonly thought the appellate system addresses any problems arising from a judge’s performance at trial, but that is not correct. The primary function of appellate courts is to review decisions of lower courts, the focus being on judicial findings, not judicial conduct. Judicial findings are, of course, written up in the form of judgments; High Court judge, Sir Frank Kitto, gives the rationale:
The process of reasoning which has decided the case must be exposed to the light of day, so all concerned may understand what principles and practice of law and logic are guiding the courts. (Why Write Judgments? 66 ALJ)
With a judicial complaints system the focus is exclusively on the manner in which judges conduct themselves. Justice Chernov, of the Victorian Court of Appeal (Who Judges the Judges? 2002), explains the concern here is not with the appellate process, but with determining whether a judge’s behaviour has fallen below acceptable standards.
Professor Sallman’s Report (2003), upon which the current Victorian system is based, acknowledges two categories of complaint - complaints that warrant a judge’s removal, and complaints that don’t. Though we are not told how they are graded, minor complaints, it seems, are dealt with internally - whatever that might entail.
Serious complaints are now subject to an elaborate procedure whereby if the Attorney-General is satisfied that there are reasonable grounds for the carrying out of an investigation he appoints an investigating committee, to report as to whether facts exist that could amount to proved misbehaviour or incapacity such as to warrant removing the judge. Then, if the Attorney-General considers it appropriate, parliament votes on removal.
Whatever it might take to satisfy the Attorney-General there are reasonable grounds to initiate an investigation is anybody’s guess; as is what is meant by proved misbehaviour? However, because serious complaints are going nowhere without the Attorney-General’s imprimatur, the primal unknown is: what process does the Attorney-General have in place to decide whether complaints of serious misconduct warrant investigation?
The systemic lack of transparency is worrisome enough, but the problem cuts deeper.
The writer’s interest in the subject arose from an experience as plaintiff in civil proceedings in the Victorian Supreme Court. Having promised family that trial would be the end of litigation, the writer did not appeal the judge’s findings, but litigation did not end the matter. So disturbed was the writer by this judge’s conduct, he formally complained to the Attorney-General and Chief Justice.
Although the complaint seriously impugned the integrity of this judge, the Attorney-General responded there was no basis for complaint; and the Supreme Court CEO responded that no response was required.
With due respect: what sort of government is unconcerned with the integrity of its highest court? Indeed, what sort of complaints system refuses to investigate complaints? Nor could this be fobbed off as run-of-the-mill grumbling by a disgruntled litigant; the allegations here were scrupulously specific and written by an academic lawyer. Given any half-competent researcher could quickly and easily evaluate the claims, one would have thought some sort of examination was in everybody’s interests. Our Supreme Court is too important to allow allegations of serious impropriety go unanswered?
Some judges see no need for a complaints system, arguing the appellate process is the most effective watchdog.
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.
But perhaps he could.
You see there’s a significant distinguishing feature in our scenario. High profile cases like those above attract public interest and consequent media scrutiny; ours being nondescript attracts neither. If our judge manipulates the evidence to suit his findings, pretends to believe the defendant when the evidence shows he could not have been telling the truth, omits reference to his lies and criminal admissions, what’s to stop him? The judgment won’t appear till many months after trial, by which time the lawyers, even the parties, have forgotten the proceedings; everyone has moved on.
What’s happening here, you exclaim? Does Victoria have some secret protocol whereby high profile cases litigated under media glare suffer the full vigour of the law, but backwater cases attracting no media attention, do not?
No, it doesn’t, but this is the exception, not the rule - the sort of thing that could happen with a flawed judge. The vast bulk of Australian judges would act honourably irrespective of scrutiny.
Well, you say, the appellate system to the rescue! The truth will out on appeal.
But will it? Remember Justice Ipp? Remember the profound dependence of appellate courts on trial judges’ findings?
Professor Hart claimed in almost every case a judge had room to manoeuvre, and where none existed, a judge so minded could make room; a flawed judge could easily manipulate evidence confident an appellate court would back him with that ancient aphorism: The trial judge was there to hear the facts so he’s best to decide those facts.
By now it should be blindingly obvious that because appellate courts are so loathe to question the trial judge’s findings or to receive additional evidence, he is pretty much free to write up his judgment howsoever he likes. Even if he manipulates and omits crucial evidence, his findings are unlikely to be reversed on appeal. If the appellate court won’t interfere with his findings and won’t receive additional evidence, Justice Chernov’s police car wouldn’t know if it were following a truck or a trike, and no matter how painstaking Justice Ipp’s rigorous scrutiny, one cannot possibly find that which is not there.
Clearly, the way appellate courts operate ill-equips them to even recognise judicial misconduct, let alone deal with it. Couple this with a dysfunctional judicial complaints system, and you have a judiciary that is for all practical purposes unaccountable.
In an insightful paper, Chief Judge of the NSW Supreme Court, Peter McClellan, spotlights the Victorian system’s fatal flaw in one poignant sentence:
If as I understand the Victorian model contemplates, the Attorney has the function of determining which matters should be investigated - and appointing the [investigating committee] a significant boundary designed to ensure judicial independence has been crossed. (Judicial Conduct: Still A Live Issue, 2005 A.J.C.)
Indeed, one wonders what rationale lies behind a system that so unwisely tilts the balance in our sacred trinity of governmental structure: the Separation of Powers. The Attorney-General’s unfettered power places him in an impossible situation. If he instigates an investigation into judicial conduct, he risks accusations of abuse of power; if he doesn’t, he stands accused of inaction. In other words: damned if he does, damned if he doesn’t!
It is not, however, difficult to see why he might prefer inaction to the alternative. Investigating judicial conduct is grim business, fraught with all manner of political implications. Justice McClellan (2005) states merely initiating a formal investigation often leads to the judge’s resignation. Highly critical of Victoria’s system, he argues a New South Wales-type model, where all complaints are considered by a special commission is eminently preferable. In unveiled censure he remarks:
Perhaps I do not fully appreciate the Victorian proposal. If I do, I am surprised it has not received more significant criticism.
As is this writer, and on that note we return to that crucial question we asked earlier: what process does the Attorney-General have in place to decide whether complaints of serious misconduct warrant investigation?
If the writer’s experience is any guide, there is none, and it is clear the Victorian judicial complaints procedure not only does not work, it cannot work. Further, the incongruous nature of its design sees it inherently predisposed to perpetuate the very problem it purports to remedy.
We should never forget that our courts set the standards by which we are all judged, and that if we wish to be judged by the highest standards, we must have in place the most effective means of ensuring our courts achieve them. For this reason Federal Attorney-General, Robert McClelland’s recent proposal for an independent expert body to scrutinise the judicial complaints of the nation is a cause to be embraced by all Australians, especially Victorians.
In finishing, it’s worth noting Professor Sallman’s Report (2003) reveals that in arriving at his recommendations, he was strongly influenced by the opposition of Victorian judges to a NSW-type model. Of course, it is perfectly reasonable that the judges’ views be considered, but in our grand social scheme, judges are there to serve the public, and like other public servants, they should have to account to the public.