Accountability of the courts Flashcards
Paradox of judicial independence
Due to a high level of judicial independence, there are few robust accountability mechanisms for the judiciary branch
Internal accountability of the courts
Appeals process, transparent processes
Appeals process
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)
Pell appeal example
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)
Mallard example
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
Sandy Street
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
Ineffectiveness of the appeals process
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
Transparent processes (natural justice)
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
Claremont trial example
Demonstrates all reasons why a person has been convicted, Contributes to a transparent hearing, 619 page reasons released the day the killer was sentenced
Heydon example
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
Judge Vasta
Accused of not providing natural justice
91 of decision in refugee matters overturned (get more stats)
Keeping judges accountable
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
External accountability of the courts
Parliament, The law, Consitution
Parliament holding the courts accountable
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
Angelo Vasta (not a federal judge)
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
Lionel Murphy
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
The law holding the Courts accountable
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
Vasta being sued
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
Magistrate Harrap
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
Mandatory sentencing
Minimum sentence judges have to give for certain convictions, Sets a standard for all courts follow, Limits judicial discretion, HOWEVER undermines judicial independence
Federal judge resigns
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
Judicial immunity from civil liability
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
Constitution holding the Courts accountable
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
Idea of voluntary self-accountability
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
Judiciary holding its own members to account
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