Thursday, 17 December 2009

Tipping the scales of justice

Anyone who’s practiced in the summary jurisdiction for more than five minutes will have had the pleasure of appearing before one or other of our more interventionist magistrates.

Sometimes it’s just annoying, as for instance, your cross-examination is going along quite nicely thank you, gates are being closed one after the other, and the magistrate, unable to contain him or herself, asks the $64,000 question for you. Other times it’s extremely helpful, as, when often happens, the train of thought being pursued by either end of the bar table (or, indeed the witness box) slips from the tracks, and the magistrate nudges it back on line.

However, it becomes another matter altogether when interjections from the bench move into the realm of outright interference, and make a fair (to both sides) trial impossible.

The WA Supreme Court in the person of McKechnie J, delivered a stinging finding upon the behaviour of a magistrate during a contested hearing in Wragg v Bond [2009} WASC 383. Large chunks of the transcript are reproduced in the case, and one can imagine the frustration felt by defence counsel. (Despite the obvious enjoyment he felt in watching a defence barrister suffer, the prosecuting sergeant was, in my opinion, derelict in his duty in not intervening on his opponent’s behalf) It’s important to note that Wragg brought the appeal, not because “the magistrate was biased, but that the magistrate’s conduct led to a miscarriage of justice because there was an unfair trial.”

McKechnie J,

7. In R v Hircock [1970] 1 QB 67 Lord Justice Widgery said:

There is in our judgment a very important distinction between conduct on the part of the presiding judge which may be regarded as discourtesy and may show signs of impatience - and the conduct which cannot be commended in any way but which does not in itself invite the jury to disbelieve the defence witnesses and conduct which positively and actively obstructs counsel in the doing of his work.

8. The magistrate's conduct actively obstructed counsel. Lawyers who appear in court should not be shrinking violets and should be robust enough to pursue their case with vigour, if necessary, against a degree of antagonism from the bench. Judicial officers after all are human and occasionally slip. Sometimes there is little counsel can do to deflect a judicial officer: Hobbs v C T Tinling and Co Ltd [1929] 2 KB 1. This was such a case.

We’ve all put up with this kind of thing plenty of times, or watched as it happens to our learned opponents. Despite the defence counsel being the victim in Wragg, the principle of a fair trial, and an advocate being able to present a case and test that of their opponent, applies both ways.


Dr Manhattan said...

Thankyou to Gaius Baltar for this contribution.

As Elucubrator said last month in No place for Maximus on the Bench, the challenge is not so much in identifying when a judge is becoming too involved in the case, but in knowing what to do about it.

Different facts but same concern; I'm reminded of the circumstances in Cesan v The Queen where the trial judge fell asleep on numerous occasions, but advocates on both sides weren't game enough to raise it with him.

Perhaps there are times when the interests of justice require a practitioner to speak up, though it would be easier to duck a difficult issue and save the appeal point.

Unknown said...

It is also more effective to have an issue of bias resolved before a different tribunal. Sun v Minister for Immigration points out that the decision-maker is often the worst possible person to determine whether they can be objective or not. Besides, what if the decision had been about to go in your favour?

Your contributor seemed to be grasping for the classic remarks of Daryl Dawson in Whitehorn v R:

"A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. When a party's case is deficient, the ordinary consequence is that it does not succeed. If a prosecution does succeed at trial when it ought not to and there is a miscarriage of justice as a result, that is a matter to be corrected on appeal. It is no part of the function of the trial judge to prevent it by donning the mantle of prosecution or defence counsel."

What is the better solution for reigning in inquisitive or inquisitorial judges? A prohibition order under 56. A local example is Hoare Brothers v the Magistrates' Court.

I honestly do not know why they are not sought more often, but we should be grateful that they are not or else the entire system would come to a shuddering halt and the higher courts would quickly find themselves doing little else (as the Court of Appeal does now with criminal sentencing appeals).

Perhaps practitioners prefer to toy with allegations of apprehended bias without actually having them tested.