accountability of the judiciary

through appeals, judicial system, parliament and removal

Accountability through appeals- theory

The main mechanism for accountability are internal to judiciary.

Appeals make lower courts accountable to higher courts (that have experienced judges) that have appellate jurisdiction. Promotion of judges depends on judgements that withstand appeals- measure of performance. Judges must provide Ration Decidendi, published, which senior judges review, parliament scrutinizes. Losing party has right to appeal for impartiality of trial, error of fact or law.

Appeals- Lloyd Rayney

Accused of murdering wife Corrin. Used a non- WA judge as both parties well known in judiciary. Judge Marin declared Rayney innocent. The police appealed, and the Appeal court heard round criticism from both parties, for ignoring compelling evidence and making the right decision on wrong reasoning. Court of appeal vindicated Judge Marin, saying he carefully and correctly evaluated evidence.

Appeals- Dietrich

Was accused of Heroin trafficking. On the day of his trial in the Supreme court, had failed to obtain legal representation, however, the trial proceeded and Dietrich was found guilty after poorly representing himself. The HC granted special leave for an appeal, as Dietrich hadn't had the legal competence to be defended (by himself or others). HC reinforced the CL principle of a fair trial, as lack of legal representation denied the right to a fair trial. Gave birth to legal aid.

Appeals: Salvatore

Salvatore received many complaints, for being overbearing and aggressive to those in front of him and editing threats out of written reports. Had also had many decisions reversed in appeals. CJ mentored Vasta, reduced work load, consequence perceived as too slight.

Appeals: Sandy Street

Has shown incompetence. Failed to provide timely written decisions, not ensuring fairness. An Iranian man was seeking a visa rejection review. Street did not rule in his favor, giving him 21 days to appeal. Written judgement only available after 75 days- mans lawyer had to seek extension. Has had 80 cases reversed since 2015. Has not been removed- low accountability.

Appeals- Mallard

convicted of murder after a tunnel vision investigation. Appealed to WA court of appeal- dismissed. Appealed to HC on special leave- dismissed. While in prison, more evidence is uncovered. Team asked for clemency from Court of Appeal from Attorney General. Granted. WA appeal court dismissed again. Decision of the court gives rise to the perception that the judges turned a blind eye to wrongdoing to protect other judge's reputation. HC approved appeal, slammed WA judiciary for error. Case led to the Criminal Appeals Amendment Act 2019. Convicted in WA given a second chance of acquittal of Supreme court if new compelling evidence emerges.

Appeals Dodd

Trial Judge Dodd repeatedly fell asleep during 2 men's trials, distracting jury. Incapacity. HC allowed men to appeal- right to a fair trial. HC allowed men to appeal- right to a fair trial.

HC- final court of appeal

Section 73 corrects miscarriages of justice. Appeals head to significant changes in other hierarchies. Fina check on Courts accountability e.g. Mallard- Criminal appeals amendment act, Dietrich- legal aid.

Public confidence overview

Courts are apolitical, neutral, authoritive. Follow strict doctrines, maxims, rules, principles, conventions and are independent from politics, making people trust judicial process and decisions. Judges don't have to be popular like politicians, less likely to lie. When a judge's integrity is questioned, undermines public confidence.

Factors influencing public confidence.

1. Justice Delayed is Justice Denied: courts can take years to review cases. E.g. Judge Maiden took long time to deliver judgements, approaching 3 years. After complaints and NSW judicial commission calling for his removal, incapacity, CJ only reduced workload. 

2. Barriers to judicial system: e.g. cot. Perception that it is exclusive. 

3. cases can be lost on legal expertise

Principles of a fair trial

1. Impartial adjudicators.

2. evidence based decisions 

3. hearing both sides

4. open, transparent trials.
   Process enhances public confidence. Codified in constitution, statute.

Evidence based decisions

Strict rules of evidence. No here-say, irrelevant, circumstantial, opinion. Parties can object to evidence. Only admissible evidence used to make decisions. Judge charges jury w what evidence can be used. If rules not upheld/incorrectly charged, able to appeal.

Evidence based decisions- Evans

1st trial was appealed due to the jury being charged with here say evidence.

Second trial was appealed due to error of law- judge incorrectly provided jury with legal definition of provocation.

Hearing both sides

Each side may call witnesses, submit evidence, open and close statements, interrogate others witnesses. Judges uphold these processes. Breakdown of procedures or failure judge to uphold is grounds for appeal- not fair trial.

Impartiality of judge and jury

Must declare conflict of interest and remove themselves from a trial if cannot be. Bias is grounds for appeal.

Impartiality adjudicators Rayney

WA judges had conflict of interests in Rayney case as new both parties. Thus, a non- WA judge used.

Public hearings

Courts public law reports, public and media may watch trials. Judges may choose to hold a trial 'in camera'- protect witnesses or classified info. Openness creates public confidence. IN camera trials can create a perception that the trial is unjust, decreasing public confidence.

Public hearings- Witness K

2004: Aus. cheated Timor Lest government, benefitting Aus. in negotiations. Witness K believed unjust, brought to another gov branch. Was charged under National Security information Act. Lawyer also charged under act by sharing info. Hearings held in secret, only aware about case due to Willkie using parliamentary privilege to reveal case. Lack of public confidence that trial is fair.

Chief Justices

At top of court hierarchy. Monitors performance of judges, may mentor underperforming judges. Most courts have an internal complaints system, Chief justice hears complaints.

Accountability through parliament: overview

Statute superior to CL. Parliament makes laws that bind courts in their jurisdiction. Robust accountability requires independent institutions. Statue can override CL, limit judges freedoms or clarify CL.

Limit judge's freedoms- mandatory sentencing

if believe courts are not issuing harsh enough punishments, may introduce mandatory minimum sentences. In 2014, believed courts in WA too soft on burglary. Introduced a minimum sentence of 75% of max sentence for third charge. Decreased judicial discretion

Limit judge's freedoms- privative clause

Can limit cases courts can hear. In migration act, S474 was a privative clause attempting to make executive decisions made under the act exempt from judicial review. in plaintiff S157 v CW, HC ruled that the section lost legal affect as S75 entrenched a minimum level of judicial review.

Override CL: Abrogation

If parliament disagree w court decision, can overturn the CL precedent with Statute.

Abrogation Trigwell case

Trigwell case: HC decided farmers were not responsible for their livestock wandering onto the road. Vic Parliament disagreed, introduced Wrongs act to abrogate the decision. Farmers now responsible if livestock wander onto road and cause harm.

Clarify CL: Clarify

Mabo decision overturned legal position of terra nullis, did not maintain stare decises overturning legal precedent. Instead of overturning the decision, parliament clarified the CL with the Native Title Act, illustrating judiciary statutory communication.

Accountability through censure- constitution

72: Judges removed by parliament on proven incapacity or misbehavior. Vague deliberately to inspire debate. Independence

Angelo Vasta

QL parliament removed Vasta of QL Supreme court, after Parliament established a commission of inquiry into allegations against Vasta. Misconduct found, removed 1989.

Lionel Murphy

Controversially appointed by Whitlam in 1975, Labor MP. Accused of perverting court of justice 1984. Senate inquiry, recommended Murphy be prosecuted. NSW Supreme court found guilty of trying to pervert court of justice, overturned on appeal. Parliament established a special parliamentary commission of inquiry into Murphy's fitness to be HC judge. In 1986, found to have terminal cancer, dismantled commission, embargoed documents for 30 years. Had he not died, commission may have made a recommendation to parliament to remove Murphy on misbehavior.