Accountability of the Courts

Question 1

Internal accountability mechanisms

Answer 1

• doctrine of precedent
• appeals
• Attorney-General
• natural justice
• public confidence

Question 2

External accountability mechanisms

Answer 2

• parliamentary legislation

* censure and removal of judges

Question 3

Additional accountability mechanisms

Answer 3

• Chief Justice

* codes of conduct

Question 4

Appeals

Answer 4

Definition: a challenge to a judgement of a lower courts in a higher court.

Hold lower courts accountable

Ratios - written reasons for decision
• published on court websites and in law reports.
• allows checks on decisions and reasons.
• if reasoning is wrong, decision can be reversed or
overruled.
• Parliament scrutinises law reports.

Promotions depend on judgements that withstand appeal.

Question 5

Appeals: case studies

Answer 5

1. Sandy Street
2. Salvatore Vasta
3. Andrew Mallard
4. Pell

Question 6

Case study: Sandy Street

Answer 6

Appointed to Federal Circuit Court in 2015

10 cases appealed for unfair hearings
80 decisions reversed
Failure to provide timely written judgements

Iranian man sought visa rejection review. Street found not in his favour. Iranian man had 21 days to appeal, Street took 75 days to make the written judgement available

Question 7

Case study: Salvatore Vasta

Answer 7

Federal Circuit Court

Aggressive and overbearing

Edited out threats he made in court from the published written decision

Jailed a father of 2 for not bringing the right documents in a family law case

Stood down from admin duties by Chief Justice in 2019, negotiated a deal to keep hearing cases

Question 8

Case study: Andrew Mallard

Answer 8

1994 - Convicted for murder in WA Supreme Court in. Lost an appeal to the full bench

2005 - High Court quashed conviction in after spending 11 years in prison. WA appeal system failed by not ordering a retrial based on new forensic evidence

Court of Appeal placed in seperate division of Supreme Court

Appeal Amendment Bill 2019 (WA) - right to 2nd appeal if new evidence emerged after conviction.

Question 9

Case study: Pell

Answer 9

2017 - Cardinal charged with multiple historical child sec offences

Sept 2018 - jury discharged after 5 weeks, could not reach unanimous verdict

Dec 2018 - found guilty, 6 year prison sentence

Appealed on ‘the unreasonableness ground’, dismissed by 2:1 decision

April 2020 - High Court acquitted all 5 convictions after 13 months in jail. Jury should have entertained doubt considering the whole of the evidence. Criticised Court of Appeal for viewing recorded witness testimony from original trial, instead of assessing whether a rational jury should have entertained doubt.

Question 10

Attorney-General

Answer 10

Cabinet Minister responsible for courts

Judicial appointments and promotions

Direct resources to respond to issues within a court

Defend judiciary, support correct functioning

Question 11

Doctrine of Precedent

Answer 11

Definition: lower courts must follow the legal principles established by higher courts in similar cases. To stand on what has been decided.

Binds lower courts, accountable to higher courts

Higher courts can correct lower court decisions

Judges must make a strong case in ratio for avoiding precedent

Question 12

Natural justice

Answer 12

Definition: fair processes for determining the truth in a dispute

Upheld by adherence to strict procedures

Principles:

1. Impartial adjudicator - must remove themselves from trial if unable to be disinterested and impartial. Accountable for own independence.
2. Hearing both sides - equal opportunity to present case. Breakdown of procedures or failure of judge to uphold them are grounds for appeal. Judges accountable for fairness and due process.
3. Evidence based decisions - only use admissible evidence to reach a verdict. Failure to apply rules of evidence or charge jury correctly may lead to appeal.
4. Public hearings - public can see operation of justice system and have confidence in it.

Question 13

Public confidence in courts

Answer 13

S72 - security of tenure of judges until 70.

Judges apolitical and independent, no need to appeal to populism.

Undermining factors:
• barriers to access
• cost - reliance on legal 
  expertise
• time to resolve cases
• manipulation of procedure - 
  justice depends on skill of 
  lawyer.
• secret trials

Question 14

Public confidence in courts: case studies

Answer 14

Witness K

Justice Dyson Heydon

Question 15

Case study: Witness K

Answer 15

• Australia negotiated treaty wth Timor-Leste
over gas fields in Timor Sea.

• Witness K knew ASIS allegedly bugged
cabinet room of Timor-Leste government
during renovations in 2004.

• TL government went to international
tribunal to appeal treaty, information would
have advantaged Australian government in
negotiations.

• AFP and ASIO raided Witness K and lawyer
Bernard Colleary’s homes, seized
documents and confiscated Witness K’s
passport.

• Witness K was to be called as a witness,
could no longer travel to testify.

• Witness K and Colleary secretly charged for
revealing information about ASIS.

• 2018 - Independent federal MP Andrew Wilkie revealed secret prosecutions under parliamentary privilege, to highlight legal issues in treatment of Witness K and Colleary.
• Witness K pleaded guilty and significant parts of Collaery’s trial will be held in secret.