Accountability of the courts

Question 1

Paradox of judicial independence

Answer 1

Due to a high level of judicial independence, there are few robust accountability mechanisms for the judiciary branch

Question 2

Internal accountability of the courts

Answer 2

Appeals process, transparent processes

Question 3

Appeals process

Answer 3

Holds both lower court decisions and judges or magistrates to account
Can reverse a lower court’s decision
Impose scrutiny and accountability within a court hierarchy, Public scrutiny- judges decisions constantly overturned on appeal (However Vasta and Sandy), Collective understanding that if Judges a corrupt, the public will lose faith in the Court and justice system (take an oath)

Question 4

Pell appeal example

Answer 4

Pell appealed to the Victorian court of appeals which ultimately turned down the appeal arguing the jury couldn’t make a decision beyond reasonable doubt
However, the High Court then granted an appeal as they found that the Court of appeal did not apply sufficiently cogent reasoning when assessing evidence (rewatched court case, didn’t need to, acted like a jury, could consider credibility)

Question 5

Mallard example

Answer 5

Encouraged/highlighted the need for the Criminal appeals amendment act- gives people a second chance at acquittal if new and compelling evidence comes to light, However- released from prison and then had to re-appeal which costs a lot of money

Question 6

Sandy Street

Answer 6

Street has had 80 decisions overturned in less than 5 years, In at least 10, was found to be denying procedural rights, Publicly criticizes judges

Question 7

Ineffectiveness of the appeals process

Answer 7

Sometimes advancements in technology mean new evidence can come to light
People who have exhausted the appeals process should have the chance to prove themselves innocent if there are new ways

Question 8

Transparent processes (natural justice)

Answer 8

Court procedures are codified in common law and statute
Fair trial must have: Adjudicators, Each side presenting their case, Evidence based decisions, Open and transparent hearings unless there are exceptional circumstances

Question 9

Claremont trial example

Answer 9

Demonstrates all reasons why a person has been convicted, Contributes to a transparent hearing, 619 page reasons released the day the killer was sentenced

Question 10

Heydon example

Answer 10

Independent investigation (2020) found that he sexually harassed six former associates, Inquiry was internal executive conducted by a public servant, Made six recommendations that the High Court indicated it will adopt, HOWEVER Retired at the age of 70 in 2013

Question 10

Judge Vasta

Answer 10

Accused of not providing natural justice
91 of decision in refugee matters overturned (get more stats)

Question 10

Keeping judges accountable

Answer 10

Open to public and professional scrutiny
Exceptional circumstances- they are closed, Judges must give reasons for their decisions, Subject to the appeals process, Apply statues- open to the legislation to amend if rulings are disagreeable
Judiciary must account for public resources used

Question 11

External accountability of the courts

Answer 11

Parliament, The law, Consitution

Question 12

Parliament holding the courts accountable

Answer 12

Parliament can make legislation to: Override judge-made common law, Clarify common law, Limit freedom of judges
Parliament can also remove judges, Abrogate and codify cases, However, can’t abrogate constitutional law, E.g Mabo, Love and Thoms

Question 13

Angelo Vasta (not a federal judge)

Answer 13

Queensland parliament removed justice Angelo Vasta due to his implication in corruption by the Fitzgerald inquiry
Wrongdoing was found to be ‘misconduct’ concerning a company his family was associated with but didn’t affect court decisions, Removed June 1989, none removed in 21st century

Question 14

Lionel Murphy

Answer 14

1984- accused of perverting the course of justice, NSW supreme court found him guilty
NSW 1985 ordered re-trail
1986- conviction quashed
Parliamentary Commission of inquiry (composed of 3 retired judges) investigated 41 allegations
July 1986- Murphy revealed he was diagnosed with terminal cancer and the commission disbanded
Returned for a week and then died

Question 15

The law holding the Courts accountable

Answer 15

Parliament maintains oversight of judicial power through statute law which is superior to common law
Commonwealth and state parliaments create laws that bind courts in their jurisdiction, E.g evidence acts in all jurisdictions are uniform

Question 16

Vasta being sued

Answer 16

Being sued in rare proceedings brought against a sitting judge, he denied his liability for false imprisonment and claimed the protection of judicial immunity, Admitted that he errored as he believed another judge had previously found Stradford had breached a court order, putting him in contempt, Denied engaging in “any collateral abuse of process”, “abuse of government power” and a disregard of Stradford’s rights, Could be sued as it was more an abuse of power than the wrong decision

Question 17

Magistrate Harrap

Answer 17

Admitted to conspiring to abuse public office, Separate offending, admitted to two counts of deceiving the Courts Administration’s Authority in a bid to avoid losing demerit points after traffic offences were committed in his State Gov issued car. Court clerk felt ‘pressured’ by Harrap and handed her licence so he could ‘lie to those in authority’ about who was driving his car when he got the traffic fines, Harrap resigned as a South Australian magistrate early this month

Question 18

Mandatory sentencing

Answer 18

Minimum sentence judges have to give for certain convictions, Sets a standard for all courts follow, Limits judicial discretion, HOWEVER undermines judicial independence

Question 19

Federal judge resigns

Answer 19

Joe Harman resigned from his position on the federal circuit court following an investigation into “sexualised” and “inappropriate”, Three former judges appointed to look into the allegations (two women came forward), Went on leave when incident probe began

Question 20

Judicial immunity from civil liability

Answer 20

Judicial immunity is a form of sovereign immunity, which protects judges and others employed by the judiciary from liability resulting from their judicial actions, Can’t be sued for making the wrong decision

Question 21

Constitution holding the Courts accountable

Answer 21

Section 72, A judge must be removed by GG with joint support of both houses of Parliament, No judge has been removed in the 21st century due to misconduct

Question 22

Idea of voluntary self-accountability

Answer 22

Carmody often spoke about his support of the Government making his promotion seem to be a political favor, Carmody resigned due to pressure from his judicial colleagues and evidence of the publics lack of confidence

Question 23

Judiciary holding its own members to account

Answer 23

Supreme Court justice Helen Wilson conducted a review and found that Prowse had become irritated with the police and sought to punish them, quashed Prowse original ruling (throwing the case out) and ordered it to be heard in the Liverpool Local Court by a different magistrate