Judicial Ethics [In Court perspective] - Paper 1
JUDICIAL ETHICS [PAPER 1]*
The Honourable Justice Clifford Einstein**
[The prime role of the courts is "in protecting the weak and controlling the rapacious][1]
[Judging is a profession. Like any other profession, service of the community is the chief purpose of the profession but the service is of a special kind. Judging serves the community in two ways: by doing justice according to law in each case and by maintaining the rule of law in the community at large. Judging is a complex function calling for legal competence, experience of the human condition, a capacity to hear, a humanity to learn and the firmness of mind to reach and to adhere to a just conclusion. These are demanding qualifications and they can be satisfied only by judges who adhere to high standards of professional practice][2]
Four things belong to a judge: to hear courteously; to answer wisely; to consider soberly; and to decide impartially"[3]
Overview
1 The subject of judicial ethics concerns an examination of the high standards of judicial conduct necessary to the rule of law. A failure to uphold those standards will inexorably undermine the confidence of the community.
2 The Code of Judicial Ethics for Judges of the Peoples Republic of China ["the Chinese Code"] promulgated by the Judicial Committee of the Supreme People's Court of China on 18 October 2001 sets out a code in fifty carefully worded articles with the express aim of "[regulating] and [improving] the standard of judicial ethics for judges, to enhance the professional quality of judges and maintain the good image of judges and the people's court". This paper seeks to identify the principles which underlie like codes of judicial conduct in countries where the rule of law has been taken as a given for centuries. [4]
Power
3 A convenient starting point is to look at the matter from the perspective of power.
4 Judges exercise great power.
5 Relatively unique in all human relationships is the privilege to exercise power which will recognise or dismiss claims to rights and in dismissing such claims will often cause much suffering. The matter has been expressed as follows:
"[The judges] are entrusted, day after day, with the exercise of considerable power. Its exercise has dramatic effect upon the lives and fortunes of those who come before us. Citizens cannot be sure that they or their fortunes will not someday depend upon a judgment. They will not wish such power to be reposed in any one who's honesty, ability or personal standards are questionable. It is necessary for the continuity of the system of law as we know it, that there be standards of conduct, both in and out of court, which are designed to maintain confidence in those expectations..."[5]
6 Hence the study of judicial ethics is an examination of the appropriate or proper behaviour of the judges who possess this power.
7 This paper seeks:
* to examine the subject of judicial ethics from the perspective of the framework of concern;
* to travel into certain particular areas of sensitivity with the aim of giving some practical guidance as well as enlivening discussion.
8 A second paper "Judges and the people" will endeavour to more particularly focus less upon what occurs in the courtroom and more upon the parameters of concern when viewing the conduct of the Judge in his or her private capacity. For obvious reasons the topics meld seamlessly into one another so that a certain overlap cannot be avoided.
9 At the outset it is necessary to clearly and firmly make the point that there is considerable room for argument in terms of what is or is not acceptable judicial behaviour, particularly where, as is the case with any other area of human endeavour, eccentric or idiosyncratic approaches to carrying out one's task are to be expected. The richness of the law is in large part attributable to the different backgrounds and ways of thinking of judges. Professor Julius Stone wrote of the need to recognise that "any Judge's performance depends not only on his legal knowledge or skills, but also on the adequacy of his own life experience and social knowledge." ['Social Dimensions of Law and Justice', 1996 Maitlan Publications at 686]
10 In many ways a judge must stand apart from those who are judged. However it would be wrong to suggest that judges are not entitled to enjoy the fundamental freedoms of other citizens:
"[It is appropriate that judicial officers] live, breathe, think and partake of opinions" in the real world and "continue to draw knowledge and to gain insight from extra judicial activities that would enhance their capacity to perform the judicial function"[6]
11 Hence nothing in what follows should be interpreted as suggesting that these activities should be curtailed absent a very particular situation.[7]
Procedural differences between the administration of justice in China and Australia/other common-law countries
12 Before going any further it is of course necessary to take into account procedural differences between the way in which justice is administered in Australia and other common-law countries, and the way in which justice is administered in China. Those differences may reflect in a number of ways upon any discussion of appropriate judicial behaviour.
13 Hence there will be special circumstances which may permit a particularly small court or a court which sits in an isolated location or a court such as the High Court of Australia [where members have a constitutional responsibility to sit] to act in a particular way in certain situations which otherwise could not be tolerated. In other words it may be necessary to tailor certain comments on appropriate judicial ethics to the particular situation faced at the time.
Natural Justice
14 I should also provide a brief explanation of the concept 'natural justice'. The essential underpinning of the concept of natural justice requires that there be fundamental procedural fairness afforded to each party by a judicial tribunal. In other words each party has a fundamental entitlement:
* to be informed of the nature of the case which it has to meet;
* to a fair hearing in the sense that it must be given the opportunity of meeting the case which is put against it;
* to have the decision of the tribunal based upon the evidence called before the tribunal.
The adversarial system
Courtroom hearings
15 The administration of justice in Australia and other common-law countries involves the hearing of court cases in a courtroom.[8] It should be noted however that in certain instances the facilities available in the Supreme Court of New South Wales [indeed in the "Technology Courtroom" in which I sit and in limited number of other courtrooms in the same building] will permit evidence to be taken by video link into the courtroom. That form of technology permits evidence from overseas or from within Australia to be conveniently given by a witness who may be thousands or tens of thousands of kilometres away from the courtroom.[9] It may be possible at some stage during question time to discuss the very great benefits which video link evidence can provide, particularly in countries such as China which, like Australia, covers such a vast territory, with great distances to be travelled by witnesses if required to attend in a courtroom.[10]
Presentation of evidence by the parties
16 The adversarial system relies upon the parties to present their respective cases to an independent impartial tribunal [be it a Court or other body having jurisdiction to determine a relevant dispute] for determination. The theory which underlies this system is that the tribunal is likely to be best placed in a position to ascertain the truth as to what occurred if the parties are given a proper opportunity to call evidence and to test one another's witnesses and cases.
17 In adversarial proceedings the functions of the trial judge are to decide the issues of fact and law propounded and to regulate and control the proceeding so that those issues may be investigated fully and fairly and as speedily and efficiently as the circumstances of the case permit.
18 In theory the tribunal stands back from the arena and adopts a passive stance by way of being the recipient of the oral and documentary evidence put forward by the parties. The tribunal's task is to weigh the totality of that evidence and to come to a reasoned decision as to the respective rights of the parties.
19 I return to judicial ethics.
Intellectual honesty
20 There is no particular best starting point in an examination of judicial ethics. However the requirements of intellectual honesty have a signal claim to priority.
21 Intellectual honesty is critical in the exercise of the function of a judge. What this means is very simple. The judge is the decision maker. The decision to be made will involve the determination of issues of fact and law.
Issues of fact
22 Issues of fact will usually involve a decision as to which witnesses to accept as having given reliable evidence and which witnesses to reject as having given unreliable evidence. This is not a question of which witnesses the judge likes the look of. Nor is it a question of which witnesses are more articulate. It is raw question of which witnesses evidence appears best to best fit with the probabilities when one takes into account all of the evidence before the court.
23 The decision as to the facts involves many many factors. The judge is in the unique position of hearing all of the evidence before having to make the decision as to what on the balance of probabilities likely happened.
24 As we all know, in ninety percent of the cases which come before us the first and critical decision is as to what actually happened. That must be proven on the evidence. Usually once one has come to the decision as to what actually happened the landscape clears and the rest of the judgment will simply flow forward without too much difficulty.
25 In my own experience fact-finding can be terribly difficult and one often has to search the evidence again and again for clues in making the decision as to what the parties have proven and whom to believe on particular matters.
26 A judge cannot approach this task of making findings as to what on the balance of probabilities is shown to have actually happened by adopting the process of unfairly giving inappropriate or undue weight to certain particular facts and by inappropriately giving too little weight to other facts. This is not a situation in which the judge can act as if he or she was entitled to move the cards around the card table selecting whatever pattern the judge might find the easiest to select without any form of constraint. The task is rather one of a principled approach using reason to reach the finding.
Issues of law
27 What then is the proper approach to be taken in dealing with the legal principles applicable to the facts?
28 There will sometimes be situations which are very squarely covered by the relevant Code [or in common law countries by the relevant statute or by established precedents to be found in the case law]. These situations should hopefully not pose any particular problems.
29 However it is a very common experience to find ambiguity or nuances in interpretation. Problems of application of the known legal principles are commonly thrown up where the particular facts seem on one view to almost fit the principle [or Code provision] but on another view are perhaps outside that principle or provision. On such occasions the proper course for the Judge is to approach the matter using the very same intellectual honesty to which I have already referred. Having carefully examined the suggested relevant principle or provision and the particular facts proven on the evidence to have taken place, the Judge reaches a decision giving full reasons explaining why that principle or provision requires to be applied or alternatively explaining why the facts proven take the particular matter outside of the established principle or provision [in which case the Judge must identify some other principle or provision in order to be in a position to hand down a proper principled decision for the parties].
30 In common law countries the Judge will be guided by a number of materials including textbooks, statutes and past decisions. Depending upon the level of the particular court, the Judge will also have received carefully prepared submissions from the parties legal advisers. The tradition is for the Judge to make up his or her own mind in deciding any case.
31 Hence after handing down the judgment it will also be necessary for the Judge to be in a position to be entirely satisfied that he or she has a clear conscience having been intellectually honest in endeavouring to locate the correct principle or provision which is to be applied to the facts.
Can the law 'run out'
32 Some very recent decisions in Australia have raised questions where some have expressed the view that the existing legal materials provide no conclusive answer to the question. This has arguably meant that the court required to have recourse to ethical principles.
33 In Harriton v Stephens [2004] NSWCA 93 the issue was whether a disabled child could recover damages from a medical practitioner without whose negligence the child would not have been born. A majority of the New South Wales Court of Appeal decided against the plaintiff. Ipp JA argued that this decision was required by the application of established legal principles. On the other hand Spigelman CJ expressed the view that the existing legal materials provided no conclusive answer to the question confronting the court. In his view, deciding the case required recourse to ethical principles. He observed that the relevant principles were 'highly contestable and strenuously contested', and that there was no widely accepted ethical principle that would have resolve the dispute before the court. The Chief Justice concluded that, for this reason, the court should decide against the plaintiff.
34 With respect my own view is not to accept this proposition that the law can 'run out', as it were. I would agree with Professor Peter Cane [11] who put the matter [at 12] as follows:
"[o]nce it is accepted that the law can 'run out' as it were, there is no escape from the conclusion that the judicial obligation, to resolve disputes properly brought before the courts, requires judges to develop the existing body of legal materials by adding the normative propositions to it." [emphasis added]
35 The High Court of Australia decided by a 4-3 majority that damages were recoverable for the cost of bringing up an unplanned child born as a result of a doctor's negligence [Cattanach v Melchior (2003) 77 ALJR 1312]. Professor Julius Stone (supra) [at 369] reminds us that "throughout the law, there may be found provisions aimed directly to protect accepted standards of morality; as for example the laws of contract and property in relation to which 'public policy ' may 'operate flexibly to withhold legal protection from...promises or dispositions tending to dishonesty, corruption, sexual immorality, crime and the like"
A matter of conscience [Their pages 282.5]
36 I cannot put the matter in a clearer fashion than to quote the words of Sir Gerard Brennan[12].
"Judging is a lonely life. When the evidence is heard and the argument is over, when the books have been read, we come to the point of judgment. No conscience other than the judge's own can be the guide. No pen but the judge's own can write the reasons for decision or sketch the summing up. No expression of satisfaction can satisfy the judge unless the judge's own standards be satisfied."
Professor Stone (supra at 678) writes of 'the agony of decision' of the judgment seat itself.
37 In short it is convenient to consider the judge's own state of mind as it should be after the handing down of the judgment. A judgment which will include the reasons for believing one witness and disbelieving another witness. A judgment which will give findings as to what occurred on the balance of probabilities.
38 In my view having given such a judgment often knowing that your decision may very well cause the losing party to become bankrupt or which will have other dreadful legal consequences for that party, you must be able to look into the mirror and to say to yourself:
"I have done my utmost to examine all of the evidence extremely carefully and to work out for myself what has been properly proven to have occurred. I am entirely satisfied with my judgment as having been given with entire intellectual honesty. I have not overstated the case for one party nor understated the case for another party. I have been fair. I have been entirely impartial. I have not been unfairly favourable to any witness or party for any reason otherwise than by the touchstone of a full examination of all of the evidence called before the court."
39 In short you will be able to honestly say to yourself:
"I know that what I have done in the lonely hall of my conscience 'comprises justice according to law'[13]."
The principles of open justice
40 It is convenient to next treat with the principles of open justice which also have immense significance in any consideration of judicial ethics.
41 The general rule, which is subject to extremely limited exceptions, requires that proceedings by heard in open court with the right in the public to attend. The matter was put as follows by Lord Shaw in 1913:
"It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. "In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice." "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against him probity. It keeps the judge himself while trying under trial." [14]
42 This paper does not seek to deal with the position which may obtain where a particular inquisitorial system may permit a judge [whether personally or together with or through the medium of court appointed experts] to travel extensively in an attempt to obtain evidence.
43 My limited understanding is that, at least some years ago if not presently, the courts in China experienced very great difficulty in their endeavours to arrange for witnesses to attend the courtroom. Naturally without witnesses the obtaining of reliable evidence could likely be an impossible task or at least a task of monumental difficulty. [15]
44 In most, probably all, common law countries, the procedure by which the parties may force witnesses, often unwilling witnesses, to attend the courtroom is by the issue by the court of subpoenas. A subpoena is an order of the court which requires a named witness to attend the courtroom either for the purpose of giving oral evidence or for the purpose of producing documents to the Court. The sanction for failure to comply with a subpoena may include a penalty or even imprisonment. This procedure is of critical significance to the routine operation of the adversarial system as we know it.
Exposure to public scrutiny and criticism
45 A corollary to open justice requires that the Courts be subject to public scrutiny and criticism. The following comment is pervasive:
"As few members of the public have the time or even the inclination to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them "
46 As has been recently pointed out this can result in the court being subjected to criticisms which tend to undermine public confidence particularly when such criticisms betray a lack of understanding of the Court's functions. However these difficulties are simply a concomitant of the administration of justice in a democracy. The matter has been expressed as follows:
"There are no intrinsically closed areas in an open and democratic society ".[16]
For "[t]he operation of the Courts and the judicial conduct of judges are matters of utmost public concern".[17]
Why write judgments?
47 The judge has sworn to do right by all manner of persons without fear or favour, affection or ill will. In that regard it is the judgment by which the judge complies with that oath.
48 Sir Frank Kitto [a former Judge of the High Court of Australia] when he delivered his classic paper on "Why Write Judgments?" to an Australian Supreme Court Judges' Conference, said at 22:
"The process of reasoning which has decided the case must itself be exposed to the light of day, so that all concerned may understand what principles and practice of law and logic are guiding the courts, and so that full publicity may be achieved which provides, on the one hand, a powerful protection against any tendency to judicial autocracy and against any erroneous suspicion of judicial wrongdoing and, on the other hand, an effective stimulant to judicial high performance."
49 These reasons appear to be reflected in Chapter 1 of the Chinese Code.[18]
Impartiality
50 There are a number of well established principles which require mention in relation to the obligation to act impartially. One of the most fundamental principles which underpin the administration of justice is the requirement that justice should not only be done but should manifestly and undoubtedly be seen to be done. Both the parties to the litigation and the general public must have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: "The judge was biased." If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.
[R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ; Webb v R (1994) 181 CLR 41 at 61; R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 263; R v Gough [1993] AC 646 at 659 per Lord Goff of Chieveley]
51 It is equally well established that the content of the requirements of procedural fairness may vary according to the particular circumstances of a case, including the nature and general function of the entity required to observe them and the relationship between that entity and the person to whom the procedural fairness must be accorded. Such variations may occur in the content of the requirement that a tribunal, required to observe procedural fairness, be not tainted by either the actuality or the appearance of disqualifying bias.[19]
52 The judicial oath taken by a judge of the New South Wales Supreme Court upon being sworn in is as follows:
I ...do swear that I will well and truly serve our Sovereign Lady Queen [Elizabeth II] in the office of [a justice of the Supreme Court of New South Wales], and I will do right to all manner of people after the laws and usages of the State of New South Wales without fear or favour, affection or ill-will. So help me God.[20]
53 The words "without fear or favour, affection or ill-will "give express recognition to the crucial requirement that a judge act impartially.[21] With respect it would seem that precisely the same requirement is to be found in Article 1 of the Chinese Code:
"A judge should strive to achieve substantial impartiality and procedural impartiality in performing his duties. A judge should appear to be impartial through his words and conduct so as to avoid any reasonable doubt from the public upon judicial impartiality."
54 It has been recently pointed out[22]:
"that the protections given to a judge in Australia-of salary level, tenure and immunity from suit are designed in part to remove inhibitions and fears from the judicial mind... [and] designed to protect the ideal described [by] Lord Bowen in the following terms:
There is no human being whose smile or frown; there is no Government, Tory or Mineral, whose favour or disfavour can start the pulse of an English judge on the bench, or move by one hair's breadth the even equipoise of the scales of justice"[23]
55 This obligation requires that the judge be in a position to determine the case fairly and impartially on the evidence, hence bringing an entirely unprejudiced mind to the resolution of the dispute.
56 Before going further into this subject it is important to appreciate that there is a danger if judicial officers accede too readily to suggestions of appearance of bias. The danger is that this may encourage parties to believe that by seeking the disqualification of a judge they may be able to influence the composition of the Court. The matter is of particular sensitivity and for this reason is dealt with reasonably fully in what follows.
57 The common law distinguishes between actual bias and ostensible or apprehended bias. It is very rare to find cases where actual bias has been proven.
Actual Bias
58 Actual bias falls into two categories, being first conscious bias, and secondly unconscious actual bias.
59 Actual bias, like any other conclusion of fact, may be established as an inference from circumstances.[24]
60 The principle was explained in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs by North J:
"Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: Wannakuwattewa v Minister for Immigration and Ethic Affairs (Fed C of A , North J, 24 June 1996, unreported) and Singh v Minister for Immigration and Ethic Affairs (Fed C of A, Lockhart J, 18 October 1996, unreported). The courts have rarely found actual bias to exist. That is principally because, at common law, a reasonable apprehension of bias suffices to disqualify a judicial officer. Where actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias. Another reason is that actual bias is difficult to prove. Rarely will a judicial officer expressly reveal actual bias."[25]
61 North J also explained the circumstances in which unconscious actual bias may exist:
"A decision-maker may not be open to persuasion and, at the same time, not recognise that limitation. Indeed, a characteristic of prejudice is the lack of recognition by the holder. ... actual bias may exist even if the decision-maker did not intend or did not know of their prejudice, or even where the decision maker believes, and say, that they have not prejudged the case." [26]
62 Lockhart J in Singh v Minister for Immigration and Ethnic Affairs[27] stated that "it is only a rare case where actual bias has been established". The reason for this, His Honour observed, was as follows:
"It is always difficult to explore the actual state of mind of a person said to be biased. Evidence to establish actual bias may consist of actual statements made by the person said to be biased, and of objective facts and circumstances from which an inference of bias may be properly drawn." [28]
63 Lockhart J considered a situation in which actual bias was said to exist because it was alleged that the decision-maker had prejudged a matter before the conclusion of a hearing. His Honour held that:
"Even where a decision-maker is shown to have expressed or otherwise formed strong views about an issue involved in an inquiry prior to the giving of evidence, actual bias will be established only where the evidence shows that these views were incapable of being altered because the decision-maker had unfairly and irrevocably prejudged the case."[29]
Ostensible or apprehended bias
The test to be applied
64 The most recent authoritative Australian formulation of the test for 'apprehended bias' is contained in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd & Ors v Australia and New Zealand Banking Group Ltd[30]. In that case, the majority held[31] that a judge is disqualified "if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide" (emphasis added). With respect to the precise test to be applied in ascertaining whether such a reasonable apprehension exists, their Honours propounded the following[32]:
"[t]he apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. "
65 Of critical importance is the construction of 'might', a term derived from the judgment of Mason, Murphy, Brennan, Deane and Dawson JJ in Livesey v New South Wales Bar Association[33] and utilised in deliberate contrast to previous dicta requiring a "real" apprehension of bias, in the sense that there exists a "high probability" of the same: R v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co Ltd[34], per Dixon CJ, Williams, Webb and Fullagar JJ. The majority in Ebner held[35] that:
"[d]eciding whether a judicial officer...might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge ... will in fact approach the matter. The question is one of possibility (real and not remote), not probability. "[36]
66 The above tests notwithstanding, it must nonetheless be borne in mind that the application of the 'principle of apprehension' aspect of the rule is necessarily predicated upon what Brennan, Deane and Gaudron JJ in Vakauta v Kelly[37] deemed a "real world" understanding of legal proceedings. Specifically, their Honours stated that the "requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation."[38] Alternatively expressed, the application of the relevant rule is thereby entirely contingent, within the parameters of the impartial administration of justice, on the circumstances of the case and the content of the matters said to give rise to an apprehension of bias.
Attributes of the "fair-minded lay observer"
67 The test for apprehension of bias such as to disqualify a judge is objective. It is a reasonable and not a fanciful or fantastic apprehension that must be established[39]. Accordingly, the fictional observer, by reference to whom the test is formulated, is taken to be reasonable[40].
68 The observer is not assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge[41]. The context connotes knowledge of "ordinary judicial practice" and the actual circumstances of the case[42].
Prejudgment as bias
69 A party alleging apprehension of bias in the form of prejudgment must show a reasonable apprehension on the part of the fictitious observer that "the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented"[43].
70 The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration; whatever evidence or arguments may be presented[44]. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion[45].
71 Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots[46].
"First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case."[47]
72 Most importantly:
"There is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case." [48]
"The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion"[49].
73 Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion[50].
74 Article 10 of the Chinese Code is in the following terms:
"A judge should treat all parties and participants of the proceeding equally in performing his duties. The judge should not by words or conduct and test any discrimination. The judge has the responsibility to stop and correct any discriminatory words or conduct by any participants or other people."
75 Article 11 reads:
"A judge should be neutral during the trial.
Before the judgment is rendered, a judge should not express his views or attitude towards the judgment is words, expiration or conduct.
A judge should adjudicate according to law and be careful with his words and conduct during the proceedings so as to avoid any reasonable doubt upon his neutrality from the parties and other participants."
76 The matter has been put as follows:
"We take this opportunity to remind ourselves as judges that tyranny is nothing more than ill-used power. We recognise that it is easy... to lose one's judicial temper, but judges must recognise the gross unfairness of becoming a combatant with a party. A litigant, already nervous, emotionally charged, and perhaps fearful, not only risks losing the case, but also contempt and a jail sentence by responding to a judge's rudeness in kind. The disparity in power between a judge and a litigant requires that a judge treat a litigant with courtesy, patience and understanding. Conduct reminiscent of the playground bully of our childhood is improper and unnecessary."[51]
Conclusion
77 This paper has sought to identify and examine the framework of concern in which the subject of judicial ethics arises and to travel into some particular areas of special focus. The paper centrally seeks to treat with problems arising in the courtroom. It may be appropriate to conclude by referring to a case before the English Court of Appeal in 1957[52] where an appeal was taken against the actions of a trial judge who had continuously intervened into counsels' examination of witnesses, asked a substantial number of questions himself and warned witnesses against questions which he considered misleading.
78 In a unanimous decision, the Court of Appeal held that the trial judge had fallen into error on the basis that:
"No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross-examination, and intervened to protect them when he though necessary. He was anxious to investigate all the various criticisms that had been made ... and to see whether they were well founded or not. He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored...
Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries."[53]
79 Regardless of whether the trial judge's questions had assisted in drawing out the truth of the matter, prevented witnesses from being misled or shortened the length of the hearing (thereby saving valuable court time), he had travelled further than his status as an adversarial judge had permitted.
* Paper delivered 11-13 October 2004 to the National Judicial College, Beijing
** Justice of the Supreme Court of New South Wales
1 Learned Hand, "The Deficiencies of Trials to Reach the Heart of the Matter" in Lectures on legal topics, 1926, P 105.
2 Sir Gerard Brennan foreword to Judicial Ethics in Australia by Justice J B Thomas, The Law Book Company Limited, 2nd ed 1996.
3 Attributed to Socrates
4 In 2002 The Council of Chief Justices of Australia approved of the publication of a document entitled "Guide to Judicial Conduct" ["the Australian Code"] which is a comprehensive publication intended to give practical guidance to members of the Australian Judiciary at all levels and which expressly seeks to be positive and constructive and to indicate how particular situations might best be handled. I acknowledge the assistance given by this publication in relation to a number of the areas treated with by my own paper. I note also that The American Bar Association Model Code of Judicial Conduct ["The ABA Code"] was adopted by the House of Delegates of the American Bar Association on August 7, 1990, and amended in 1997, 1999 and 2003.
5 Thomas above, n 2 p 9.
6 McKay "The Judiciary and Non-Judicial Activities" (1970) 35 Contemporary Legal Problems p 9, 12, cited by Wood, "Judicial Ethics a Discussion Paper" (1996), [Australian Institute of Judicial Administration Report, pp 3-4]
7 As for example would prevent a judge who was hearing a case about an environmental issue from attending a demonstration organised in relation to that issue by a party to the proceedings or their sympathisers [indeed organised by anyone]
8 Only in extremely rare cases will the Court take evidence outside of the courtroom. An example might be if a witness was hospitalised and therefore unable to give evidence in the courtroom. Another example might be if it is necessary to take a view of a particular place where events occurred-in which circumstance the parties and their legal advisers will usually be present and a transcript will be taken if explanations of given to the Judge of what is being seen.
9 The question of whether the judge should grant leave to permit evidence to be taken by video link raises its own special issues. Much will depend upon the particular reasons for the application for evidence to be taken in this manner. My own practice is to be extremely careful before permitting video link evidence if the material witness is of extreme importance to the issues the subject of the litigation and particularly if the credit [by which I mean reliability/truthfulness] of the witness is to be attacked or may be attacked. Whilst every application for video link evidence is determined on its merits it may well be the case it is far preferable to have the witness in the courtroom only a few metres away from the judge in order to be in the best position to determine whether the witness is giving reliable or truthful evidence.
10 Where evidence is to be taken from an expert who works in a forensics laboratory and whose reliability will often not be under attack, a video link examination may be extremely useful and practicable because the expert will not be inconvenienced by having to leave his or her laboratory to attend the courtroom. This is particularly beneficial where the forensics laboratory may be a considerable distance from the courtroom.
11 'Taking Disagreement Seriously: Courts, Legislatures and the Reform of Court Law' Paper presented to the Supreme Court of New South Wales Annual Conference 20-22 August 2004.
12 "Why be a Judge"? Paper delivered to New Zealand High Court and Court of Appeal Judges' Conference, Dunedin 12-13 April 1996
13cf Sir Gerard Brennan, Occasional Address, Law Graduation Ceremony, University of Queensland, 4 June 1996.
14 Scott v Scott [1913] AC 417 at 477
15 In fairly rare circumstances a court may be asked to determine a case by reference only to documentary evidence. I exclude this situation from the above comments
16 State v Mamabolo, CCT44/00 (11 April 2001), 2001 (3) S.A. 409 (CC) per Sachs J at [77]
17 Landmark Communications Inc. v Commonwealth of Virginia 435 U.S. 829,839 (1978) per Burger J.
18 Article 6 provides "A judge should make all the judgments openly and objectively and accept the supervision from the public. This proscription does not extend to the cases [which] cannot be opened or cannot have an open trial according to law."
Article 12 provides: "A judge should specify the reasons for the measures and judgment relating to the substantial rights and litigating right of the parties. A judge should not make a conclusion or take any measures subjectively and unilaterally"
19 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 90 per Deane J
20 Oaths Act 1900 (NSW), fourth schedule
21 The same words embrace a number of concepts including those of independence and integrity [as is pointed out in chapter 2 of the Australian Code]
22 The Hon Justice JD Heydon, "Practical Impediments to the Fulfilment of Judicial Duties" (2004) 6 (4) The Judicial Review 429 at p 435
23 Quoted in Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 at 548
24 Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 555 per Burchett J.
25 Id, et 562-563
26 Ibid.
27 (Unreported, Federal Court of Australia, 18 October 1996
28 Id, at [6]
29 Id, at [9]
30 (2000) 205 CLR 337
31 Id, at 344
32 Id, at 345
33 (1983) 151 CLR 288
34 (1953) 88 CLR 100 at 116
35 Above, n 31 at 345
36 See further: Bainton v Rajski (1992) 29 NSWLR 539 at 540, per Mahoney JA; Gas & Fuel Corporation Superannuation Fund and Ors v Saunders and Anor (1994) 123 ALR 323 (FCFCA) at 338, per Gummow and Heery JJ (with whom Davies J agreed); Hagan v Independent Commission Against Corruption [2003] NSWCA 93 at [16], per Mason P (with whom Hodgson JA and Davies AJA agreed).
37 (1989) 167 CLR 568 at 570
38 Ibid.
39 Gascor v Ellicott [1997] 1 VR 332 at 342 per Tadgell JA, approved by the NSW Court of Appeal in Dovade Pty Ltd v Westpac Banking Group & Anor (1999) 46 NSWLR 168 at 188 [92]; see also Barbosa v Di Meglio [1999] NSWCA 307 at [8] per Mason P
40 Johnson at 493 [12]
41 Webb & Hay v R (1994) 181 CLR 41at 73 per Deane J, cited with approval in Johnson, id at 493 [13]
42 Johnson, Ibid and Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87 per Mason CJ and Brennan J
43 Laws at 100 per Gaudron and McHugh JJ; see also JRL, Re; Ex parte CJL (1986) 161 CLR 342, id at 352 per Mason J; Kwan v Kang [2003] NSWCA 336 at [83] per Sheller, Ipp and Tobias JJA
44 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 531-532 [71]-[72] per Gleeson CJ and Gummow J and at 564 [185]-[186] per Hayne J
45 Id, at 531 [71] per Gleeson CJ and Gummow J
46 Id, at 564 [185] per Hayne J
47 Ibid.
48 Ibid.
49 Id, at 531 [71] per Gleeson CJ and Gummow J
50 Ibid; see also Vakauta above, n 38 at 570-571 per Brennan, Deane and Gaudron JJ and at 575-576 per Dawson J
51 In re Eastmore, 504 So. 2d 756,758(Fla.1987) cited in Shaman, Lubet and Alfini, Judicial Conduct and Ethics, The Michie Company, Virginia, 1990, at p 32.
52 Jones v National Coal Board [1957] 2 QB 55
53 [1957] 2 QB 55 at 63, per Denning LJ.
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