CH 14 Flashcards
2 broad categories when thinking about judicial accoiuntability
Internal checks and balances
External checks and balances
Internal
these are the processes and procedures used within the court system
External
the traditional and newly evolved bodies seperate from the court system which check judicial power
Paradox between judicial independence and accountability
The rule of law demands an independent judiciary which means that courts are free from the interference from the other arms of government. But how can a truly independent court system be held to account when no other part of the sytem can judge the judges
2 internal accountability court holding courts to account
Doctrine of precedent and court hierachies
Appeals
Doctrine of precedent
Courts make decisions and case that come before them, in doing so intermediate and superior courts may create new common law. These decisions are binding to all lower courts in the same hierachy
Doctrine of p keeping courts accountable
Keeping courts bound to the decisions of higher courts restrains them and keeps them accountable to higher courts
Appellate courts avoiding precedent acc
When appellate courts avoid precedents they judge to be wrong by reversing or overruling a precident, they are correcting the decision thus holding lower courts to account
3 acc through appeals
Appellate courts
Examination from public and higher courts
Attorney General
Superior Appellate Courts
Have judges with a higher level of expertise and experience and the power to reverse a lower courts original decision thus imposing scrutiny and acc on lower courts
Examination from public
The reasons of judges decisions are publushed on the courts website and law reports… public availability may result in media or public scrutiny
Examination from higher courts
Is a powerful check on the quality of the original decision and the capacity of the judge who made it. Individual judges whose decisions are regularly reversed will suffer damage to their reputation and may lose promotional opportunities
Who is the attorney general
Is a minister in cabinet with responsibility for the judicial and court systems. They make reccomendations for judicial appointments and promotions.
How is the AG and process of accountability
Judges may not be eligible for promotions if they constantly make decisions that get overturned or reversed
Eg of Appeals process
Andrew Mallard was convicted by the cupreme court for murder in 1994 and spent 12 years in jail. The HC eventually quashed the original convition in 2005
4 criteria of a fair trial (internal court processes, accountability)
Impartial adjudicators
Hear both sides
Evidence based decisions
Public Hearings
Impartial adjudicators
Judges must remove themselves from a trial if there is a conflict of interest. Similarly jurors should declare any reason they should not be on the jury such as knowing the defendent
How can impartiality be accountable
A biased judge or jury can be grounds for an appeal. If proven, an appellate court will reverse the decision or order a retrial
Hearing both sides
Pre trial and trial processes are designed to give equal oppurtuinites to both parties to present their case… each may call call witnesses, submit evidence interrogate etc. The judge must uphold this procedual fairness
How can procedual fairness be accounatble
If a judge should fail in their duty to ensure a fair trial, there may be grounds for appeal. An appellate court may reverse a decison or order a retrial
Evidence based decisions
The adversarial system of trial has very strict rules of evidence designed to ensure that only evidence of the highest quality is admissible and used in the search for the truth
Eg of inadmissable evidence
Hearsay or opinioj evidence
Process of testing evidence
- Each party may present evidence and the other parrty is free to test that evidence.
- They may object to evidence if it falls outside the rules of evidence.
- The judge then rules if the evidence is admissable
- only evidence that has survived being testes in court may be used by the jury in their final decisions
Charging the jury
In a indictable criminal case a WA judge must instruct the 12 jurors what evidence they are allowed to take into account
How can decisions based on poor or incorrect evidence be accountable
Failure to apply the rules of evidence or charge a jury correctly may leas to an appeal
Public Hearings
All court proceedings are open to the public and media with few exceptions. The media report the trial and members of the public may sit in the public viewing gallery
Public hearings and accountability
Such openness ensures that thw public can have confidence in the admin of justice and the courts who administer it
4 reasons for public confidence in the court
- Court can be relied upon ti make decisions based on law and evidence
- People trust that courts are apolitical
- Courts decisions follow strict doctrines, principles, rules and maxims developed over hundreds of years
- They never have to appeal to populism to keep their jobs
3 methods of external accountability
- Traditional acc: Seperation of pOWERS AND RULE OF LAW
- Constitutional acc: process of removal
- Modern acc: NSW judicial commission
Parliamentary sov and acc
Statute law is superior to common law and p sov ensures that parliament may override common law sumply by passing a statute
Abrogate common law
Parliament may step in at any time and abrogate a common law if it feels that the common law is developing in ways it wishes to check
Eg of abrogate
The IPP report in 2002 found problems with court decisions in negligence cases. It was found that it was too easy for plantiffs to prove negligence and that damages awarded wer excessive. In response most state parliaments encated legislation to set limits on the amount of damages that were payable for negligence
Mandatory sentencing
Force judges to jail offenders regardless of the seriousness of the crime and the circumstances. It strips the courts of their judicial discretion
Four aims when sentencing
Rehab, retribution, deterrence and community protection
discuss the four aims and mandatory sentencings effect
Judges seek to balance these four aims… and because every case is unique judges tailor sanctions carefully. Mandatory sentencing severely restrict the judges capacity to perform this function
Why were mandatory sentencing laws put in place
Were a reaction by parliaments to community perception that courts were not sentencing harsh enough. Thus showing courts being held to account by parliament and people
Explain the role of the AG
- Member of cabinet whos portolio responsibility is for the courts
- Is involved in judical appointments
- They must defend its ability to act independently
Rule of law
The superiorioty of statute over common law and the principles of the rule of law require judges to apply statutes even if they conflict with common law precedents
eg of rule of law
State criminal codes and sentenicng axts determine the min and max sentences allowed
S72 acc
Both houses of parliament must approve of the removal of a judge but only the grounds of proved misbehaviour or incapacity
Unclear Proved misbehavour or incapacity
The constitution does not specify what misbehaviour warrants a judges dismissal nor does it specifiy what medical conditions qualify as incapacity. It doesnt even define what proved means
Why are the words unclear
Its deliberate and creates space for reflection and dount in the mind of those wishing to remove a judge. It makes it essential for debate in parliament to occur and the possibility for it to be appealed to the HC
Eg of removal
Justice angelo vasta of the QLD supreme court was removed by the ql parliamentd following the Fitzgerald inquiry
explain the vasta case
Vasra was accused of wrongdoing in relation to a company with which his family were associated. His wrongdoing which did not affect his decions in court was found to be misconduct and he was removed by Parliament
Queensland AD Hoc Commission
In response to the Vasta criticism the QLD parliament passed a law enabling the official misconduct of the state criminal justice commission to investigate judicial officers if a complaint was received
2 other acc mechanisms
Chief justices
Codes of conduct
Chief Justices
Australia has nine major court hieracjies, at the top of each is a superior court headed by a CJ. The CJ has responsibility for monitioring the performance of judges within their area of responsibility and may counsel underperforming judges
Codes of conduct
Are forms of volunary self accountability employed across several branches of the aus gov
Codes of conduct in Judiciary
The Aus institute of judicial admin has been working towards a submission for adoption of codes of conduct by judges
