Watching the Detectives – Elvis Costello Didn’t Do A Song about Judges

Independence

That is the one word that forms the bedrock of our judicial system. Judges must be seen to be independent, and actually be independent. Appointment to the bench necessarily curtails the judge’s social life. As the old saying goes – it is lonely at the top.

In Lewis v Judge Ogden (1984) 153 CLR 682, a naughty Melbourne Barrister found himself fronting the High Court for the following football analogy:

13. It is with these comments in mind that we turn to the critical part of the appellant’s address. It began in this fashion:
    “This trial has been or is going to be just slightly unusual from most trials. Most trials have the situation where there are three very clearly defined roles going on in front of you. There is the defence who are on this side who defend, there is the prosecutor on that side and he prosecutes and obviously this is the arena proper and you have got a judge who judges. You normally think of a judge as being a sort of umpire, ladies and gentlemen, and you expect an umpire to be unbiased. You would be pretty annoyed if, in the middle of a grand final, one of the umpires suddenly started coming out in a Collingwood jumper and started giving decisions one way. That would not be what we think a fair thing in an Australian sport. It may surprise you to find out that his Honour’s role in this trial is quite different. That his Honour does not have to be unbiased at all except on questions of law. On questions of fact, his Honour is quite entitled to form views and very obviously has done so in this trial. His Honour will tell you that any comment that he makes does not bind you. That it stands or falls on its own merits but that instead you must consider those along with all of the other comments and accept or reject them as you see fit. That is different from his direction on the law. I speak of that, ladies and gentlemen, because as I say, his Honour has given some fairly definite views in this case. They have been pretty adverse to the accused Paul and certainly my presentation of the case on behalf of Paul.” (at p. 690)

There was an episode on the British legal drama, Judge John Deed where his Honour was conducting a jury trial and lunching with, and bedding the female Crown Prosecutor during the course of the trial. He was not involving the male defence Counsel in this connubiality – how unfair you say, downright bloody illegal we say!!

And it cuts both ways. In order for any Judge to have independence their position is highly paid, and they have no boss.

But what happens when it goes wrong? There are only three things that can get rid of a Jaunty Judge or a Menacing Magistrate:

1. Death,
2. The Constitutional Full Stop – attaining the age of 70;
3. Removal by Parliament.

We will not comment about (1).

Interestingly, until 1977 Constitutional Full Stop did not exist when it became entrenched in the Constitution by referendum. Judges were appointed for life.

The Honourable Justice Bell was the last ‘lifer’ in Australia, having been appointed in 1976 and regrettably this great statesman and Jurist retired only last year. Our Special Counsel appeared before His Honour on at least a dozen occasions. His Honour was a true scholar and gentleman.

That said, the Constitutional Full Stop is a great safeguard as eventually all Judges must retire, and it keeps the Judiciary vibrant with ever changing talent.

The only Australian Judge that was ever removed by a house of Parliament was a Queensland Supreme Court Justice removed from office on 8 June 1989.

In recent years two NSW Magistrates have had to address Parliament within days of each other. The Late Brian Maloney LCM and Jennifer Betts LCM. Both retained their jobs.

Recent Matters

The late Justice Lionel Murphy of the High Court would have had to face Federal Parliament if convicted on the charge of perverting the course of justice in or about 1985. We note His Honour was acquitted after a trial.

In 2015 all we can say is watch this space, there may be another Federal Judicial Officer at the Bar of Parliament shortly. That person is in the newspaper on a daily basis and on nightly TV.

For independent legal representation, contact Aylward Game Solicitors on 1800-217-217.