3. court operation

3. COURT OPERATION

3.1 Roles of judicial officers

Robert Shenton French (Chief Justice of the High Court of Australia)

“It is a fundamental principle that where the rules of procedural fairness apply to a decision making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material." [emphasis added]

However at [48] the High Court also approved the limitation enunciated by Lord Diplock in F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:

“The rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

“Where the risk of an adverse finding being made does not necessarily inhere in the issues to be decided or where the facts or the inference which the judge contemplates drawing from the facts and which gives rise to such a risk is unknown to the party, the fundamental rule of fairness requires the decision-maker in some way to draw attention to the existence of that risk.”

“A trial judge has an overriding duty to ensure a fair trial. This emerges with crystal clarity and moral force from Dietrich v R (1992) 177 CLR 292…Deane & Gaudron JJ made clear the requirement for a ‘fair trial’ went further than a trial ‘according to law’. To Deane J the requirement ‘transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law’ [at p.326].

What is required to produce a fair trial depends on the circumstances. In some cases it may be necessary to have interpreters, acceptable custodial facilities or a special court venue: (1992) 177 CLR 292 at 331 per Deane J, 363 per Gaudron J. In other cases, evidence may have to be excluded because of its unfair prejudicial effect [ibid at 363 per Gaudron J] or an adjournment granted to allow pre-trial publicity to abate. This list is far from exhaustive and the categories are not closed. Indeed ‘the practical content of the requirement that a criminal trial be fair may vary with changing social standards and circumstances’ [ibid at 328 per Deane J; see also Jago v District Court of New South Wales (1989) 168 CLR 23, 57]. The general principle is that the courts possess all the necessary powers to ensure a fair trial [Barton v R (1980) 147 CLR 75, 96 cited in Dietrich v R (1992) 177 CLR 292, 327], one aspect of which is the power to give assistance to a litigant in person.”
In determining cases judges and magistrates must also act impartially and, although it rarely happens, a party can request that a judicial officer disqualify himself or herself from hearing a matter on the ground of actual bias or a reasonable apprehension of bias. The Guide to Judicial Conduct published for the Council of Chief Justices of Australia in 2002 states the guiding principles to be [at p.8]:

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  "Whether an appearance of bias or a possible conflict of interest is sufficient to disqualify a judicial officer from hearing a case is to be judged by the perception of a reasonable well-informed observer. Disqualification on trivial grounds creates an unnecessary burden on colleagues, parties and their legal advisers;
  
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  The parties should always be informed by the judicial officer of facts which might reasonably give rise to a perception of bias or conflict of interest but the judicial officer must himself or herself make the decision whether it is appropriate to sit."
  

Some examples where disqualification might be appropriate include cases where the judicial officer:

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  was related to or had significant personal knowledge of one of the parties or a witness;
  
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  had a direct or significant indirect interest in the outcome of the litigation (eg. if a corporation was a party and the judicial officer was a shareholder);
  
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  had strongly expressed pre-conceived views about a relevant issue; or
  
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  intervened in the course of the proceedings in an unwarranted and excessive manner or appeared to be taking sides.
  

However, the expression of tentative views during the course of a case does not necessarily amount to bias. In Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55 the Full Court of the Federal Court had allowed an appeal from the decision of the primary judge on the grounds that in his conduct of the case the primary judge had demonstrated apparent bias. The High Court restored the judgment. At [112] Kirby & Crennan JJ said:

“Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case: Antoun v The Queen (2006) 80 ALJR 497 at 502 [22] per Gleeson CJ, 503-504 [27]-[30] per Kirby J, 508-509 [56]-[57] per Hayne J, 517 [81] per Callinan J. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias: Bienstein v Bienstein (2003) 195 ALR 225 at 232 [34] per McHugh, Kirby & Callinan JJ.”

At [180] Callinan J said:

“Taken cumulatively, his Honour's interventions and reasons for judgment do not give rise to an apprehension of bias. Critical, strong and candid they may have been, but excessively so they were not. To some extent they may be taken to be expressions of exasperation, unfortunately so perhaps, but as a matter of degree, still falling short of apparent bias.”
In R v Fisher [2009] VSCA 100 there had been an exchange of emails between a sentencing judge’s associate and the Office of Public Prosecutions during a period of adjournment of the plea. The emails contained information bearing upon substantive issues in the plea. Although holding that there had been no unfairness in the sentencing judge continuing after the out of court communication had been disclosed, Redlich & Dodds-Streeton JJA cautioned at [20] against the use of out of court material:

“It is an undoubted principle that a judge ’s decision should be made on the basis of the evidence and arguments in the case, and not on the basis of information or knowledge which is acquired out of court. In Re Media, Entertainment and Arts Alliance; ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206, 210 Mason CJ and Brennan, Deane, Dawson and Gaudron JJ, described it as an aspect of ‘the rule against bias‘. Their Honours said that this aspect of the rule is similar to the rule of procedural fairness, but not identical because the question is whether in the circumstances, the parties or the public ‘might entertain a reasonable apprehension that information or knowledge which has been independently acquired will influence the decision‘.

“The mere fact that a judge is related to a victim of crime is not sufficient to disqualify the judge from presiding at a trial of a person accused of a like crime: cf. R v Goodall (2007) 15 VR 673. In the present case, however, the relationship of the judge to the victim of the first crime, the similar age and circumstances of the victims and the emotional involvement of the judge might have led a fair minded observer to think the similarity in the crimes and victims might have induced in her Honour a sympathy for the alleged victim of the offences with which the applicant was charged which prevented her from bringing an impartial mind to the conduct of the trial. In this respect I think it is significant that the judge underwent the harrowing experiences of searching for her child overnight and then dealing as best she could with her daughter’s distress.”

“[5] As established by R v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35-6, the usual and proper practice for the court or tribunal to take in judicial review proceedings is not to participate as a party but to abide the decision of the court. There may be occasions where it is appropriate for the court or tribunal to provide factual or like information to the court. But it is generally not appropriate for the court or tribunal to ‘enter the fray’ and make contentious submissions as to the merits of the issue in the case, as her Honour did in the present case.

[6] The foundation of this principle is that it is very difficult, and usually impossible. For the tribunal or court to participate in a judicial review proceedings without creating a reasonable apprehension of bias. In most cases, the only safe way of protecting the continuing jurisdiction of the court or tribunal is to abide by the outcome of the application. It is the responsibility of the party opposing the application to present evidence and make submissions as to the matters in issue, including evidence and submissions of the kind to which her Honour referred in the forwarded email. Moreover, a forwarded email is hardly an appropriate way for a court or tribunal to present evidence or make submissions to this court, even given that the application was being heard in the Practice Court."
Judicial officers must be aware not only of what the relevant legislation says, but of how it has been interpreted and applied in other decided cases. If there is a decision made by another magistrate with which a particular magistrate disagrees, the latter is not bound to follow the interpretation or application of the law as decided in that case, but would need to show clearly why he or she disagrees. Where the decision is one made by the Supreme Court of Victoria or the High Court of Australia, the President and magistrates of the Children's Court are bound to accept that interpretation of the law and apply it.