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Where am I now? Lawlink > Supreme Court > Speeches > The Trial Judge's Duties from an Appellate Point of View: Edited Version of a Paper given at a Conference in Beijing organised by the National Judicial College, Beijing, 13 October 2004 and to the Shanghai Judicial College, Shanghai, 19 October 2004.
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The Trial Judge's Duties from an Appellate Point of View: Edited Version of a Paper given at a Conference in Beijing organised by the National Judicial College, Beijing, 13 October 2004 and to the Shanghai Judicial College, Shanghai, 19 October 2004.
THE TRIAL JUDGE'S DUTIES FROM AN APPELLATE POINT OF VIEW*
The Honourable Justice David Ipp[1]
The modern system of litigation
The duties of a trial judge can best be understood against the background of the modern system of the administration of justice and, in particular, the appellate process.
All developed and developing countries rely on some form of adversarial or inquisitorial system of justice to resolve disputes. It was not always so. I understand that the Chinese tradition focused more on achieving harmony between the parties. This remains a highly desirable means of avoiding litigation. The notion of mediating disputes without recourse to litigation is becoming more and more important throughout the world. In this area, particularly, there is much to be learnt from the Chinese experience.
Where harmony cannot be achieved, and agreement cannot be arrived at, and negotiation fails, it seems that the adversarial or inquisitorial systems of litigation (or a combination of the two) proffer the best option.
In the West, it was not always so. Once upon a time trial by ordeal and trial by battle were the accepted means of dispute resolution. Trial by ordeal took many forms. One involved the accused person being tied up and thrown into a deep river. If the victim drowned, guilt was conclusively established. If not, he or she was regarded as innocent.
Another form involved requiring the accused to clasp a red hot piece of iron for several minutes. After the hand had been severely burnt, it would be bound, usually with paper containing religious writing. After a few days the binding would be removed. If the wound was healing satisfactorily, innocence was proved. If not, the accused would be shown to be guilty and would be executed.
Trial by battle involved an armed duel between the litigants. It was accepted that he who was telling the truth would vanquish his opponent. The unsuccessful party would be left bleeding to death on the ground.
Despite its defects, I would like to think that the present system of trials before legally trained trial judges under the umbrella of a body of appellate tribunals, resulting in open and reasoned justice, is some improvement.
A fundamental aspect of the modern system is the judge's reasons for judgment, and I will be focusing on this part of the judge's task.
The appellate system[2]
The primary purpose of a trial judge's reasons for judgment is to explain to the parties, appellate courts and the general public how the judge came to his or her decision. This is an essential element of open and fair justice. The reasons for judgment must explain the judge's reasoning process and should not, in effect, have the practical result of negating or frustrating the losing party's right of appeal. The technique and content of the trial judge's reasons for judgment must bear these matters in mind.
The primary function of appellate courts is to review decisions made by trial courts. A trial court's primary function, on the other hand, is to decide cases after hearing the oral or written testimony of witnesses. The trial court will determine the facts of each case, usually where there have been substantial conflicts between the parties. The trial judge will then apply the law to those facts and enter judgment for one party or the other. Appeal courts are concerned with determining whether the trial court result should be upheld or set aside.
Another distinguishing feature of appellate judges is that they function collegially through units consisting of multiple judges (known as benches). Trial judges sit alone (or in conjunction with a jury). Juries are not involved in the appellate process.
In deciding appeals, Australian appellate courts generally consider only those facts that were determined by the judge or jury in the trial court. They rarely receive additional evidence. The decisions of appellate courts are made on the transcript of the oral testimony and the written evidence given at the trial, and the exhibits and pleadings before the trial court. Counsel for the parties deliver written submissions to the appellate court usually a few days before the hearing, and at the hearing make oral submissions in open court.
Oral submissions are regarded as an integral part of the process. When these take place, the judges participate in the debate. There is often intense questioning of counsel. In the course of this questioning the argument becomes refined, issues are isolated and crystallised and often, what were initially only half-articulated ideas assume considerable importance. In this way, the system provides a mechanism for the search for the true issues in dispute and, indeed, the truth.
An appeal is not a common law right in Australia but is a right created by statute. Today there is a widespread and deeply held belief amongst Australian lawyers that every losing litigant should have an opportunity to have at least one appeal. Judges are human beings and to err is human. For that reason, it is believed that justice requires at least one appeal. In Australia there is a structure of intermediate appellate courts with the highest court in the land being the High Court of Australia.
The High Court only hears appeals by leave. There are presently only seven members of the High Court. This necessarily limits the amount of cases it can hear. For this reason, in practical terms, for about 90% of the cases in Australia, the intermediate appellate courts are the final appellate courts.
Appellate courts perform a number of important functions.
Firstly, they provide a means of establishing a correct and uniform interpretation of the law. In each State, and in the federal system, there are numerous trial judges. Even if those judges are all able and conscientious, it is inevitable that differences of view as to the content of the law will be displayed. An important element of justice for the society as a whole is that the law should be applied evenly, and in a consistent and uniform way, to all persons within the jurisdiction. A system of appellate courts, with a common ultimate appellate court, is necessary to achieve a reasonable level of constancy and certainty in the law.
Secondly, appellate courts provide a means for the ongoing development and evolution of the law. Legislation alone cannot deal with all the issues that arise in litigation. Appellate courts, through their decisions, declare, make and reshape legal doctrine in an attempt to ensure that the law evolves in line with the changes in political and social values in the community.
Thirdly, appellate courts heighten the legitimacy and acceptability of judicial decisions. Losing litigants in the trial court are sometimes convinced that they have lost unjustifiably. The opportunity to take the case to a higher, multi-judge forum provides a healthy outlet for such feelings.
Fourthly, appellate courts provide a means for the institutional sharing of judicial responsibility for decisions. The work of the collegiate system of appellate courts provides an assurance that the system is functioning under a proper regime of legal decision-making.
The High Court usually sits as a bench of five or seven judges. The intermediate appellate courts usually sit as benches of three judges. A feature of the judicial practice in the Australian system is individuality. Appellate judges are under no obligation to collaborate with their colleagues to produce a single set of reasons. In the American tradition, by contrast, reasons for decision are more often a product of debate, deliberation, negotiation and compromise, amongst appellate judges. Debate and deliberation are features of the Australian process, but it takes place primarily between individual judges and counsel for the parties rather than between the judges.[3]
In the New South Wales Court of Appeal, most appeals last one day. Sometimes, however, two or even three appeals will be heard in one day. More complex appeals will last for longer, often two to four days. Rarely, an appeal will take five days or more. Appeals are far shorter than trials, as in appeals counsel concentrate only on those aspects where the trial judge is said to be wrong. The rhetoric of appellate counsel is usually far less flamboyant than that of counsel appearing at a trial. In appeals, counsel concentrate on rational argument to persuade, whereas in trials counsel often resort to emotion and feelings.
Court hours are usually 21/2 hours in the morning and 2 hours in the afternoon. But a judge's working hours bear little relationship with court hours. Much time has to be spent reading, absorbing and analysing written material. An appellate judge is often faced with appeal materials comprising hundreds and sometimes thousands of pages of paper. When argument on the appeal takes place, the judge is expected to be on top of the facts, the law and the issues. Then comes the process of writing the judgment. The argument will have been recorded and typically the judge will first read that, then do some research, read the relevant cases, re-read and analyse the material, form a view, work out some way of condensing it all into some comprehensible form, and then commence writing. Judgments range in length from say 10 pages to several hundreds of pages. Most judges start at about 8.00 to 8.30 am and stay at work to 6.00-6.30 pm. Some work every evening till late at night. Others start at 7.00 am or earlier and leave work earlier.
In the New South Wales Court of Appeal, as a general rule, a judge of appeal sits in Court (with two other judges) four days a week with one day off for writing judgments, and this will go on day after day, apart from holidays, throughout the year. As I have said, there is usually at least one appeal each day. So, each judge of appeal will hear about four appeals a week. The work of preparing for the new appeal and writing judgments for the appeals that have been heard is done whenever one can snatch some time. Early in the morning before Court starts, after Court in the afternoon, in the evening, and sometimes over weekends.
The work of the trial judge
The trial judge will initially have to read the pleadings, which in some courts may comprise more than 100 pages of closely reasoned allegations, and will, on a daily basis, read the transcript of the evidence that has been led and exhibits that have been tendered. This will usually involve between 100 to 200 pages of evidentiary material each day.
Hearing times are usually from 10.00 am to 1.00 pm and from 2.00 pm to 4.00 pm each day. Prior to 10.00 am the trial judge will usually be involved in case management of other cases. When the judge is not in court he or she will be studying the evidence and preparing the reasons for judgment to be given. When the case is over, the trial judge will usually have to read all the material again in order to write the judgment. Cases can take less than a day. Some cases go on for several months.
A judgment is expected to set out the issues in dispute, the relevant facts and the reasons for the judge's decision. The reasons comprise an analysis of the facts and the law and an explanation as to how the judge applies the law to the facts as found.
As far as appellate judges are concerned, the all-important task of the trial judge is to find the relevant facts. This usually requires deciding between two or more conflicting versions. How does a judge go about deciding whether a person is telling the truth? Generally, it is now recognised that the demeanour of witnesses is not always a reliable guide to credibility. Tests by psychologists have demonstrated that a nervous, hesitant witness, who stammers and sweats, is just as likely to be telling the truth, as a calm, confident, and articulate person. Therefore, it is dangerous to decide the facts by basing the decision on the looks of a witness, or aspects of behaviour in the witness box, or on the witness' self-assurance.
Some years ago a forensic psychologist addressed a group of judges of which I was part. Without any prior explanation, he showed us a film of a motor car accident. He then questioned us about what we had seen. He then showed the film again. The evidence of most of us was inaccurate. And this was a few minutes after observing the occurrence. What can be said about the reliability of witnesses who testify years after the events in issue?
Good judges, being aware of the dangers of personal impressions, decide credibility questions largely by weighing up probabilities. That is, probabilities judged by reference to the ordinary course of human behaviour. The judge will look for corroborative facts, contemporaneous conduct that is consistent with one version and not another. This would make it difficult for a witness who tells an outlandish story to be believed. But a good trial judge will carefully weigh up all the evidence and attempt not to discount evidence simply because, at first glance, the witness is telling an unusual story.
Reasons for judgment and judicial accountability
The reasons for judgment lie at the heart of every appeal. Except for judgments of the High Court, all judgments might be taken on appeal. Once a judgment is given, it is scrutinised for errors. Usually, the judge has limited time to write the judgment. Once it is delivered, however, armies of highly paid barristers and solicitors will examine it at their leisure. Every word, every reference, every authority, will be subjected to analysis, and any error will be exposed.
The appeal process is very public. The judgments of the appeal court will stand forever, with judges' mistakes recorded for posterity, for succeeding generations of lawyers to examine, discuss and pontificate upon. Academics will spend months, sometimes years, studying judgments and then writing to expose weaknesses. Text books become permanent records of judicial errors, as do other judgments by other judges. Not only do judges in higher courts expose what they regard as errors by lower courts, it is not unusual for judges on the same court to criticise the reasoning of their colleagues.
There can be no other profession where the work of the individual is exposed to such rigorous scrutiny and such public and lasting exposure of error. I think it laughable when members of the public say that judges are not held accountable. They are indeed held accountable and in a merciless way.
For reasons of pride, most judges do not readily admit to being upset when they are overturned on appeal. But the fact is that most do not regard it as a happy experience and will do their best to ensure that their judgments are up to the appropriate standard. This is a healthy phenomenon and an important part of the administration of justice.
The approach on appeal to findings of fact by the trial judge
The approach of appellate judges in Australia to factual findings made by trial judges emphasises the importance of those findings.
The approach of appellate courts is dictated by the fact that the judges of such courts neither see nor hear the witnesses. As I have explained, the appeal takes place simply on the transcript of the relevant evidence led at trial. Appellate judges accept that not having seen and heard the witnesses puts them in a permanent position of disadvantage as against the trial judge. Thus, appellate judges are very reluctant to overturn the decision of trial judges as regards what are known as "primary" facts.
Appellate judges distinguish between the finding of a specific (or primary) fact and a finding of a fact that is really an inference from facts specifically found. An example of this distinction may be seen in negligence cases. Here the trial judge must first determine what the defendant in fact did. What was actually done constitutes specific or primary facts. Secondly, the trial judge must decide whether what the defendant did amounted in the circumstances to negligence. Accordingly, a judge must first find the primary facts and then draw from them the inference of fact whether or not the defendant has been negligent.
Appellate judges are particularly reluctant to reject findings of primary fact, particularly where the finding could be founded on the credibility or bearing of a witness. On the other hand, the appellate court has the right and duty to decide whether a particular inference should be drawn from proved facts.[4]
Nevertheless when it comes to primary facts, an appellate court is not precluded from reversing a trial judge's finding, even when it is based, expressly or inferentially, on demeanour (that is, on the way the witness behaved while giving evidence). Before doing so, however, there must be something that points decisively (and not merely persuasively) to error on the part of the trial judge in acting on his or her impressions of the witness.
One way in which this can occur is where the undisputed and documentary evidence is so convincing that no reliance on the demeanour of witnesses could rebut it.[5] In other cases, incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. In some, quite rare, cases, an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences," and, hence, the decision will be set aside.
But when it comes to drawing inferences, the fundamental principle remains that an appellate court is in as good a position as the trial judge to come to a decision.[6]
The basic elements of reasons for judgment
Giving reasons for judgment is regarded as a function of due process, and therefore of justice. Fairness requires that the parties should know why they have won or lost. The reasons for judgment should enable the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision.[7]
A judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles. A decision that is made arbitrarily cannot be a judicial decision; for the hallmark of a judicial decision is the quality of rationality. The requirement to give reasons furthers judicial accountability.
The reasons must be sufficient to give effect to the right of appeal. It is not for nothing that in some bilingual countries the judgment of the court is given in the language of the unsuccessful party. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis. If inadequate reasons are given, that may frustrate the unsuccessful party's right of appeal. If that occurs an appeal court will set aside the judgment.
Reasons need not be lengthy and elaborate; nor do they need to refer to all the evidence led in the proceedings. Reference should be made, however, to all relevant evidence (albeit not necessarily in detail). Where there is conflicting evidence of significance to the outcome, reference should be made to both sets of evidence.
Where one set of significant evidence is preferred over another, the trial Judge should set out findings sufficient to explain why. Similarly, where a dispute involves a form of intellectual exchange, with reasons and analysis advanced on either side, the Judge must enter into the issues that have been canvassed and explain why he or she prefers one case over the other. Generally speaking, however, it is not desirable to make absolute rules as to how reasons should be given. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye-witness accounts, is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible.
It has been emphasised[8] that the loser is entitled to have from the judge a candid explanation of the reasons for the decision. This is not only for the exercise of any appeal rights that may exist. "It is also to uphold the intellectual integrity of our system of law which must daily demonstrate, by its performance in particular cases, its adherence to the law, attentiveness to argument, impartiality and logical reasoning".[9]
A judgment is also written for the legal representatives of the parties and for the profession generally. Even if the litigants do not fully understand the analysis, their lawyers are entitled to have it demonstrated that the judge had the correct principles in mind and properly applied them.
In addition, judgments are written for other judicial officers. They may be written for judges lower in the hierarchy and for judges in the same court. No judge of a superior court can approach his or her functions without an awareness that a judgment may be reported and that it may establish a legal principle, binding until set aside by an appellate court. Knowledge of this fact tends to impose a discipline and quality control upon all judges.
The importance of finding the primary facts
Sometimes, when the trial judge has not made findings as to essential primary facts that are in dispute, the appellate court will not be able to decide the matter itself. That is because, not having seen or heard the witnesses, it will not be able to decide, reliably, which witness is to be believed. When that occurs, the appeal court will set aside the judgment and remit the case to the trial court for rehearing, usually before a different judge. This means that it is vitally important for a trial judge to make all necessary factual findings.
Sometimes, a trial judge can focus on only one or two issues because, by reason of the view the judge takes, those limited issues will be decisive. But if the case goes on appeal, the appellate court may be of a different opinion. The appellate court may decide that the trial judge was wrong and the case does not turn on those limited issues. The appellate court will then want to know the primary facts on the other issues. If the trial judge has not decided the other primary facts, the case will have to be remitted for retrial. Thus good practice is to decide all relevant facts that are in issue.
A simple example of this is a case where a worker sues an employer for damages for personal injuries that, the worker alleges, were sustained by reason of the employer's negligence. Even if the trial judge thinks that the employer was not negligent (and for that reason, the worker should lose the case) he or she should go on to decide the amount of damages (and the primary facts in that connection) that the worker would have been entitled to had he been successful on the negligence issue. This is necessary in case the appellate court decides that the trial judge was wrong in regard to negligence and wishes to dispose of the case finally on appeal. If the trial judge has not made findings as to damages, the case will have to be remitted to the trial judge for a further hearing as to damages, there will be delays and wasted costs will be incurred.
Findings as to which expert witness is to be preferred
In resolving conflicts between expert witnesses, the judge remains the judge and is not obliged to accept evidence simply because it comes from a witness eminent in a specialised field. But, a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal by the judge, unless it can be discounted for other good reasons (such as demonstrated partisanship or lack of objectivity).
A problem that often arises concerning expert evidence involves the influence of demeanour in deciding which expert is to be preferred. Appellate judges recognise that in some instances the trial judge may decide who is telling the truth solely by reference to the demeanour of the parties, even though it is recognised that this is not always desirable. But when it comes to the evidence of expert witnesses, different considerations apply.
In some disputes between experts, demeanour will be crucial. This may occur where an expert witness has given dishonest or misleading evidence, or has become an advocate for a party, or where the evidence given is inherently unreliable for other reasons. Demeanour may also be crucial in situations where the court may not be in a position to decide whether the facts on which the witness relies are true and may not be able to judge the scientific or professional accuracy of the principles. Where experts state different conclusions and rely for them upon facts and principles that differ, a judge may not be in a position to give objectively convincing reasons for his or her choice. It may, in the end, have to depend upon the impression that the witness has made.
Demeanour might also play a partial role in a decision whether to prefer one expert to another. A judge may be persuaded by a combination of the logical force of an expert's views together with the way in which the evidence was given.
But, where the issue in dispute involves differences between expert witnesses that are capable of being resolved rationally by examination and analysis, and where the experts are properly qualified and none has been found to be dishonest, or misleading, or unduly partisan, or otherwise unreliable, a decision based solely on demeanour will not provide the losing party with a satisfactory explanation for his or her lack of success. A justifiable grievance as to the way in which justice was administered will then arise.
I can offer two examples of trial judges offending this rule.
In the first example,[10] the trial judge decided the case solely by preferring one expert witness to another. The only explanation he gave for preferring the one witness was the "very persuasive" quality of the witness, his view that the witness was the "most eminent" of the medical practitioners who gave evidence and his view that the witness was "the most impressive witness" whether lay or expert. Thus, apart from the question of the "eminence" of the witness, the most important issue in the case was resolved solely by the judge's subjective opinion as to which witness was regarded as the most "persuasive" and "impressive". This was regarded as inadequate reasoning in the particular case and the judgement was set aside.
In the second example,[11] the trial judge decided the case virtually solely on the strength of the following remarks that he made:
"I have had the advantage not only of hearing the various witnesses give evidence but also of seeing the way in which they have reacted to the questions that they were asked. Having done so, I prefer the expert evidence that was given for the defendants to that which was given for the plaintiffs."
Again, on appeal, this reasoning was regarded as entirely inadequate. The losing party had no real idea why the professional opinions expressed by his expert witnesses were rejected. Accordingly, the judgment was set aside and a new trial was ordered.
Delay in giving judgment
Delay in giving judgment, at least when it is substantial, adds another dimension in considering the adequacy, or otherwise, of reasons.
A long delay can give rise to disquiet. Those who win may feel they have been deprived of justice for far too long. Those who lose might suspect that the task has become too much for the trial judge and that he or she has been unable to grapple adequately with the issues. In an extreme case, an unreasonable delay that results in prejudice to a losing party may amount to a denial of procedural fairness.
Delay does not ordinarily, of itself, indicate that the trial has miscarried or that the judgment is unsafe. However, a comparison between the judgment and the issues in the trial may indicate that its effect has been such as to constitute a miscarriage.
Where there has been substantial delay, statements by the judge of a general assertive character, which might otherwise be accepted as encompassing a detailed consideration of the evidence, might be treated with reserve. It has been said that a delay of the order of 10 months was such as to require a more comprehensive statement of the evidence than would normally be required in order to manifest, for the parties and the public, that the delay has not affected the decision.[12]
In a case of substantial delay involving a period of over 20 months from the end of the hearing, the English Court of Appeal said:[13]
"A judge's tardiness in completing his judicial task after a trial is over denies justice to the winning party during the period of the delay. It also undermines the loser's confidence in the correctness of the decision when it is eventually delivered. Litigation causes quite enough stress, as it is, for people to have to endure while a trial is going on. Compelling them to await judgment for an indefinitely extended period after the trial is over will only serve to prolong their anxiety, and may well increase it. Conduct like this weakens public confidence in the whole judicial process. Left unchecked it would be ultimately subversive to the rule of law. Delays on this scale cannot and will not be tolerated. A situation like this must never occur again.
Because of the delay in giving judgment it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use, or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of twenty months, Harman J denied himself the opportunity of making this further check in any meaningful way."
In a Western Australian case,[14] evidence was received by the trial Judge between 29 February 2000 and 19 June 2000 and closing submissions were presented between 12 and 15 September 2000. More than 17 months later, on 27 February 2002, submissions were heard in relation to a decision of the High Court delivered in 2001. Then, on 13 December 2002, almost 10 months later, the judgment was delivered, after a total delay of almost two years and three months. The appellate court concerned said:
"It is hardly surprising that this inordinate and inexcusable delay (for that is undoubtedly what it was) led to disquiet and suspicion. Nor is it surprising that we were presented (by responsible and experienced counsel) with submissions (of a kind which no appellate court ever wishes to see) criticising the delay, and its apparent consequences, in trenchant terms. The making of those submissions was even less surprising given that, notwithstanding that the delay was explained by the trial Judge by saying that it had been occasioned by the need to thoroughly absorb and review the evidence and submissions, the judgment runs, as we have said, to only 24 pages of text and makes no attempt to refer to much of the relevant evidence or to set out, in any adequate way, the trial Judge's reasons for preferring significant sets of evidence over other significant sets of evidence. Moreover, this was a factually and legally complex case which involved an intellectual exchange with reasons and analysis advanced on either side. However, the trial Judge, in significant instances, did not enter into the issues canvassed before him in any adequate way or provide explanations for his decisions which treated those intellectual exchanges with the respect which they plainly warranted." [15]
It may be of interest to look at the appellant's grounds of appeal relating to the judge's delay in giving judgment in that case. The grounds were as follows:
"(a) Following a trial which lasted for 67 days (with more than 6,000 pages of transcript and almost 800 exhibits) and having taken in excess of 2 years to deliver his judgment, the Trial Judge erred in failing to provide adequate findings and reasons to enable a proper understanding of the basis upon which his determination of value had been reached and in particular failed to:
(i) identify with specificity the evidence he found to be irrelevant;
(ii) identify with specificity what evidence he relied upon and what evidence he rejected in reaching his decision;
(iii) weigh the merits and demerits of each party's evidence; and
(iv) demonstrate that all the facts, evidence and pleadings had been carefully assessed.
(b) It should be inferred from the inadequacy of the reasons contained in the judgment and the lengthy delay in providing the judgment that the trial Judge had overlooked large parts of the pleadings, essential evidence and argument in the case and that his findings were unsafe, resulting in a substantial miscarriage of justice."
In the result the judgment was set aside and a new trial was ordered. The enormous inconvenience to the parties of this result is obvious when regard is had to the length of the trial and the fact that the trial judge took more than two years to deliver his judgment.
Overly lengthy judgments
Many trial court judgments suffer from over-consideration of details, especially factual details, just as appellate courts judgments suffer from over-consideration of every point of law. There is a great problem with trial courts' judgments that offer a plethora of facts, unfocussed by any issue or other principle of organisation.
Where reasons for judgment are excessively long, problems arise. Prolixity is an enemy of comprehensibility and, indeed, cogency. Lengthy judgments by trial judges tend to be in a form that does not facilitate the discernment and understanding of the significant issues in the appeal.
One of the major reasons for the inordinate length of some judgments is the mechanical recounting of large tracts of submissions and evidence. There is good reason not to repeat these arguments verbatim, but to summarise them succinctly. It should be a rule of practice for judges to keep the quoted extract to a minimum; the minimum being that particular portion which enables the judge to make a particular point - and no more.
Further, it is generally unnecessary and undesirable to express every line of thought, including those that have proved to be unhelpful, in the judge's chain of reasoning. This again can cause debate and confusion on appeal. It is preferable for trial judges to confine themselves to the reasoning that leads to their final conclusions.
The overriding concern for judges should be to make clear and precise findings and to make findings on all important matters. The English Court of Appeal has said in this regard:
"A judge's task is not easy. One does often have to spend time absorbing arguments advanced by the parties which in the event turn out not to be central to the decision making process. Moreover the experienced judge commonly has thoughts about avenues which it might be crucial to explore but which the parties have not themselves examined. It may be his duty to explore these privately in order to satisfy himself whether they are relevant. Having done the intellectual work there is an understandable temptation to which many of us occasionally succumb to record our thoughts for posterity in the judgment or to refrain from shortening a long first draft.
However, judges should bear in mind that the primary function of a first instance judgment is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. The longer a judgment is and the more issues with which it deals the greater the likelihood that: (i) the losing party, the Court of Appeal and any future readers of the judgment will not be able to identify the crucial matters which swayed the judge; (ii) the judgment will contain something with which the unsuccessful party can legitimately take issue and attempt to launch an appeal; (iii) citation of the judgment in future cases will lengthen the hearing of those future cases because time will be taken sorting out the precise status of the judicial observation in question; and (iv) reading the judgment will occupy a considerable amount of the time of legal advisers to other parties in future cases who again will have to sort out the status of the judicial observation in question. All this adds to the cost of obtaining legal advice." [16]
Judicial criticisms
In view of the effect that judicial criticism may have on the reputation of an individual, judges must take proper care before making adverse remarks about their credibility, honesty or professional competence. Judges should be conscious of the harm that may be done, unfairly, to those involved in the case by an incautious manner of expressing reasons for judgment.[17]
Nevertheless, in an appropriate case a judge may be duty bound to make comments or even findings of this kind. Adverse criticism of a person, even trenchant criticism, is sometimes required in a judgment, and praise may likewise be proper; but strict relevance to the matters to be determined is the only touchstone by which the propriety of either is to be assessed.
Calm detachment in thinking and moderation in expression are essential to the Judge's task. A careful and balanced criticism may properly "be made in forceful words, in biting words if need be, with the purpose of bringing the demands of a healthy social conscience to the attention of a Parliament or a Government".[18]
Some practical hints on writing judgments
Judges and lawyers waste a great deal of time in reading long judgments with a great detail of facts citing a maze of authorities. Many judgments require a great deal of effort to cut away the unnecessary mass of material to get at the real issue and the fundamental reasoning of the judge that has been applied to arrive at the particular decision. A great fault is the tendency to ramble rather than clearly define and discuss the issues. There is also a tendency to use the same stereotyped words that have been used by judges for decades.
It has been said that brevity, simplicity and clarity are the hallmarks of good judgment writing.[19] But the greatest of these is clarity. The concept of clarity carries with it thoroughness in consideration and the utmost care in the formulation of propositions.
Justice Sheller of the New South Wales Court of Appeal has made the following very useful practical suggestions when writing judgments: [20]
"The correct judicial method comprises the application of the relevant law, formulated clearly and correctly to a carefully found factual situation. [21] This precise statement covers four steps in the judicial process of decision making -
1. defining the problem;
2. identifying the choice of solutions;
3. selecting a solution;
4. publicly explaining how the preferred solution was reached and justifying it.
The first three steps involve gathering and putting in order information, and weighing the advantages and disadvantages of the possible solutions. The writers on the subject have tended to formalise the fourth step by advocating a fixed form of judgment writing. [Justice Kitto] decried the convenient practice of beginning each task with a tedious formula that shows the task itself to be yet another turn of a ponderous treadmill.[22]
It may not be essential or always appropriate but you can do worse than proceed by the following steps -
1. The introduction, setting the stage, by reciting the nature of the case and how it comes before the court, so as to give an immediate sense of overview, rather than plunging straightaway into the facts.
2. The questions to be decided, the issues.
3. The essential facts, selectively and logically, and some would say, usually in descending sequence of importance rather than chronologically[23] so as to tell the story in a simple and readable way. It is insufficient compliance with the obligation to give reasons for a judge to make a mere finding on liability that the incident occurred at a particular place on a particular date, that the incident was caused by the defendant's negligence and that the judge accepts the plaintiff's version of the accident. The reasons should specify what happened and where and when it happened, summarise the evidence that goes to liability, make findings on the evidence indicating where there is conflict, and why some rather than other evidence is preferred. [24]
4. The determination of the issues; that is to say, an analysis and application of the legislation and case law to the facts.
5. The conclusion - the disposition of the case.
Too rigid an application of this stark formula may lead to the omission of a vital ingredient. The judgment must state and address the argument, particularly that of the unsuccessful party. Too often appellants claim that the trial judge's silence about their arguments meant that they were forgotten or ignored. The arguments must be stated, and, if rejected, refuted."
An American judge has suggested the following tips for good judgment writing:[25]-
1. cut down facts - do not load judgments with useless detail;
2. do not reproduce the record - summarise rather than quote the pleading;
3. authorities only cited - there is no need to set out large passages from other judgments;
4. meritless points merit no time;
5. eliminate [unnecessary] footnotes ... ;
6. summarise statutes - again, avoid block quotations; and
7. avoid string citations - cite the key cases rather than all the cases."
Dedication and commitment to the judicial task
The reasons must demonstrate that the judge has fulfilled his or her duty and displayed the requisite dedication and commitment in deciding the case.
The realisation that one's future has been decided by a disinterested or lazy judge can be a chilling experience. The great Russian author, Tolstoy, in his last great novel, Resurrection, evokes a feeling of dread in the reader when describing the three judge trial court that is to decide the fate of an innocent woman charged with murder. He wrote:
"[The President of the Court] was anxious to begin the sitting and get through with it as early as possible, in time to call before six o'clock on the red haired woman with whom he had begun a romance in the country last summer. The second judge is feeling gloomy having just been told that his wife would not be making any dinner that evening. The third member of the court was suffering from gastric catarrh."
Tolstoy explains:
"Now, as he ascended the steps to the platform, his face wore an expression of deep concentration, resulting from a habit he had of using various curious means to decide the answers to questions which he put to himself. Just now he was counting the number of steps from the door of his study to his chair; if they would divide by three, the new treatment would cure his catarrh. If not, the treatment would be a failure. There were 26 steps, but he managed to get in an extra short one and reached his chair exactly at the 27th."
Not a bench that you would be hoping for if you were on trial for your life.
Conclusion
The reasons for judgment must show that the judge has paid careful attention to the evidence and arguments of counsel, has properly applied his or her mind to all the important issues in the case, has properly understood the relevant law and has appropriately applied the law to the facts. Unless this is apparent, the judicial duty will not have been fulfilled.
*******
( Edited version of a paper given at a conference in Beijing organised by the National Judicial College, Beijing, 13 October 2004 and to the Shanghai Judicial College, Shanghai, 19 October 2004.
1 Judge of Appeal, Supreme Court of New South Wales.
2 Much of what follows under this heading is adapted from what is said in Meador & Bernstein, Appellate Courts in the United States (West Publishing, 1994) at 1-5.
3 Professor Peter Cane, "Justice Michael Kirby's Echo Chamber", Paper given at Supreme Court of New South Wales Annual Conference, 21 August 2004.
4 Warren v Coombes (1979) 142 CLR 531.
5 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306.
6 Abalos v Australian Postal Commission (1990) 171 CLR 167 (at 178 per McHugh J).
7 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at 279 per McHugh JA).
8 Justice M Kirby, "On the Writing of Judgments" (1990) 64 ALJ 691 (at 692 - 693).
9 Id at 693.
10 Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174.
11 Moylan v The Nutrasweet Company [2000] NSWCA 337.
12 R v Maxwell, unreported, NSWCCA, 23 December 1998.
13 Goose v Wilson Sandford & Co, unreported, England and Wales Court of Appeal (Civil Division), 13 February 1998.
14 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149.
15 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 at [37].
16 Customs and Excise Commissioners v A [2003] 2 All ER 736 per Schiemann LJ (at 753-754, [82]-[83]).
17 Chief Justice M Gleeson, "Aspects of judicial performance", revised version of a paper "The Role of the Judge and Becoming a Judge" delivered to the National Judicial Orientation Programme, 16 August 1998, Sydney.
18 Sir Frank Kitto, "Why Write Judgments" (1992) 66 ALJ 787 (at 789).
19 Ibid.
20 Justice C S C Sheller, "Judgment Writing" (1999) 4 The Judicial Review 127 (at 132-134).
21 Amoco Australia Pty Ltd v Rocca Bros Engineering (1973) 133 CLR 288 (at 296 per Menzies J).
22 Kitto, op cit, at 787.
23 Stevenson & Zappen, "An Approach to Writing Trial Court Opinions" (1984) 67 Judicature 336 (at 343).
24 New South Wales Insurance Ministerial Corporation v Mesiti (unreported, NSWCA, 1 December 1994).
25 See Judge C G Douglas III, "How to Write a Concise Opinion" (1983) 22 Judge's Journal 4 (at 7), quoted in Sheller JA, op cit at 133.
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