Thursday, 4 October 2012

The giving of reasons

It’s trite to say that the proper exercise of a court's jurisdiction often (though not always) requires the giving of reasons for its decisions. In Shu Zhang v West Sands Pty Ltd [2010] VSC 36, Byrne J said [at 15]:

It has been said again and again that the duty of a judicial officer is to provide adequate reasons for the orders made. This is particularly the case where the orders are made following a contested trial. This was a relatively long contested trial of substantial claims. What may be adequate reasons in a given case will depend upon the circumstances, having regard to the purposes for the giving of reasons. These purposes are to inform the parties why and how the result was arrived at and to inform any appeal court what were the contentions of the parties, what were the facts as found, what were the principles of law relied upon and how these principles were applied. A further reason is the fact that it is often useful for the judicial officer to set out his or her reasoning process as a discipline to ensure that this process was in fact undertaken and that it was intellectually satisfactory.

In his book The Lost Lawyer, Yale Professor Anthony Kronman savages US judgments that, like the proverbial drunk at a lamppost, rely on case law not for illumination but merely for support (at 347):

These are the qualities one sees most clearly reflected in the style of what has become the model opinion in our federal courts: the long and excessively footnoted decision that moves, in a stiffly mechanical way, through a recitation of the different factors bearing on the case at hand to the generally uniformative conclusion that a balancing of them yields a certain result.

But giving voice to a decision in a way that is both authentic and informative is a much more difficult task than it first appears. Juries, of course, are never called upon to publicly justify their decision-making processes. And often, a judgment can only really make sense to the people who were present through the running of a case. In my view, to require all judicial reasons to make sense to people who have just wandered in for the denouement (or are reading that portion of the transcript in isolation) is artificial, if not impossible.

In Ta v Thompson & Anor [2012] VSC 446 the plaintiff, Mr Ta (who I’ll again refer to as the accused, to avoid the confusion caused by the parties’ repeated changes of position) was convicted of possession of a small quantity of heroin in the Magistrates’ Court after a contested hearing. The accused bore the onus of displacing the presumption created by s 5 of the Drugs, Poisons and Controlled Substances Act 1981, discussed here before.

The matter was reheard de novo in the County Court, and he was convicted by a judge. He then sought judicial review of the judge’s finding, alleging an inadequacy of reasons.

Whelan J [at 19]:

The County Court Judge gave her decision orally immediately after counsels’ submissions. She said:

Right. Now, look, I’ve heard evidence from the appellant about a party and people coming and going and people using his room. He said it was orderly before he ... before the party, and it was not afterwards. Usually ... he said the house was tidy, the whole house was half tidy before the police attended; his own room had not been done. That his evidence is the only evidence that I have; I have no-one there ... anyone to say that it was a party and that people were sleeping all over the place. Simply that I would have to accept his word and in the circumstances, I don’t accept it. And I’m going to find ... I find the charges proved. And I find that he did have knowledge, and therefore I will sentence.

Whelan J summarised the relevant principles about the giving of reasons, and their authorities [beginning at 24]:

A failure to give reasons, or adequate reasons, where there is a duty to do so is an error of law: Massoud [1989] VicRp 2; [1989] VR 8. In Victoria, where the reasons are part of the record, such an error is an error of law on the face of the record: Bloomfield v Haralabakos & Anor [2007] VSC 279.

The extent and detail of the reasons required in a particular case will vary depending upon the nature of the case, the complexity of the issues, and the evidence and the submissions made: Massoud [1989] VicRp 2; [1989] VR 8; Fletcher [2002] VSCA 189; (2002) 6 VR 1; Bloomfield [2007] VSC 279; Wakool Shire Council v Walters [2005] VSCA 216, [35].

In Massoud, Gray J (with whom Fullagar and Tadgell JJ agreed), in a passage more recently quoted and approved by the Court of Appeal [in Intertransport v Donaldson [2005] VSCA 303] said:

The simplicity of the context of the case or the state of the evidence may be such that a mere statement of the judge’s conclusion will sufficiently indicate the basis of a decision.

As to what is usually required, Meagher JA’s observations in Beale v GIO of New South Wales (1997) 48 NSWLR 430 to the effect that a judge should refer to the relevant evidence, make material findings, and explain the reasons for the findings and the application of the law to the facts as found, is often quoted: for example, Fletcher [2002] VSCA 189; (2002) 6 VR 1.

Where factual matters are concerned, the reasons ought not to leave the reader to wonder which of a number of possible routes have been taken to the conclusion expressed: Hunter [2005] VSCA 1.

Reasons in an appropriate case may be adequate, even if they are very short [Bloomfield [2007] VSC 279] and it is not necessary to state what is obvious: Hunter [2005] VSCA 1.

Where there is no right of appeal in relation to factual findings, the requirement for the provision of reasons as to factual findings is less rigorous: Perkins [2000] VSCA 171; (2000) 2 VR 246, 273; Insurance Manufacturers of Australia Pty Ltd v Vandermeer [2007] VSC 28, [15]; Cyndon Chemicals v Ultrawash Holdings [2007] VSC 506, [9]; BR v VOCAT [2009] VSC 152.

This is such a case.

Whelan J found that the reasons given were adequate. The judge had identified the onus and decided that the accused had failed to discharge it. That was enough. Perhaps it's not possible to require a judicial officer to specify with precision why a party has failed to prove something to their satisfaction.

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