In Defence Of Our Justice System
Stary Norton Halphen - Criminal Law Specialists
Melbourne criminal lawyers
Corrosion is a gradual process of deterioration, left unchecked it can be an irreversible. If the recent Resolve Political Monitor survey results are an indication of the deterioration of public faith in our courts and justice system as a whole, then careful consideration should be given to its causes.
Over an extended period of time the number of offences on our statute book has increased, the sentences imposed have lengthened and become more punitive, our bail laws made more restrictive and parole more difficult to get. Sentencing discretion has been fettered or removed. Our prison population has ballooned. None of it satisfies those in the media or in politics who wish to make mileage from it.
Our court system is an easy target for those wishing to make such mileage – in part because of the sensationalism that goes along with crime, in part because of the human cost of crime and its dreadful impact on victims and in part because the system doesn’t defend itself.
Efforts to undermine community confidence have been bubbling away for years but they have been heightened in recent times by those who have serviced their own agendas to the detriment of the public’s trust in our justice system.
Perhaps what has been omitted from the current narrative is that this process of detraction not only serves to undermine our justice system, but to undermine public confidence in all areas of Governance. Perhaps that is the point – a trope used by strong men politicians the world over is that you cannot trust the system – you need me to fight for you.
Attacks on the justice system and the judiciary are often levelled by the media, it goes without saying that this criticism and scrutiny from the media to all independent bodies and branches of government is a necessary and healthy sign of a functioning democracy. A level of concern should however be raised when the criticisms become less informed, more personal, and more sensationalist.
Dr Pamela Schulz has paid great attention to the discourse patterns of the Australian media in relation to the judiciary, labelling the patterns as being largely hostile. In her 2008 study, she demonstrated how the regularity with which the hostility has been sustained within the discourse, and aided by political rhetoric has worked towards imparting a form of control over the justice system.[1] It has been some time since her research was released but it is apparent to anyone working within the system that the pattern has not simply continued apace but has accelerated.
It is difficult to read articles claiming that criminal trials are not, ‘built on logic,’[2] a statement that is simply false. Or headlines that declare a, ‘loss of faith in courts when truth takes back seat.’[3] Or ‘How killers are beating the system in Victoria to get a sweet deal.’[4] The wave of publications alike are inflammatory and harmful to the work that all officers of the court do on a daily basis.
It is not just the media that feels comfortable sledging these comments, attacks are levelled by our politicians at all points of government. In 2017, during what would have otherwise been a standard Victorian Court of Appeal case involving a young man who had pleaded guilty to terrorism offences, comments were made by Chief Justice Marilyn Warren relating to a difference in sentencing patterns between NSW and VIC. This was reported, picked up, and mangled with by senior Ministers of the then Federal coalition Government. They ran dangerously wild with their commentaries inferring that the judges’ approach,
“Eroded any trust that remained in our legal system” and that “Labor’s continued appointment of hard left activist judges has come back to bite Victorians.”
The issue being that Ministers, senior Ministers, of the Commonwealth Government had made comments about judges who had reserved a decision in which a Commonwealth agency was a litigant. This could no less than be construed as what then President of the Judicial Conference, Justice Robert Beech-Jones declared as a:
“Coordinated and direct attack on the character and independence of the Victorian Judiciary,” suggesting that, “the only statements that serve to undermine confidence in the legal system were those of the Ministers and not of the Court.”[5]
What is puzzling about the whole affair is that the comments made by the judges formed a part of a wider and robust discussion of the law involving members of the appellate court and legal representatives, and whilst comments made during arguments do not represent the final views of the court, if anything, they do indicate the capability of our courts to make easily traceable decisions, as opposed to those made behind closed doors.
What is also clear is that the criticisms run only one way – against the rights of the accused and for the police. It is no coincidence in this setting that the survey referred to above revealed greater trust in police than in our judicial system. Proper scrutiny of the conduct of our judiciary when compared to Victoria Police over the past decade might raise a query over why the survey results were as they were.
The ‘Lawyer X’ scandal, which has left such a dark spot on the Victorian legal, and policing system, still bears great significance on any discussion surrounding public faith in our justice system. Former High Court Judge and Special Investigator, Geoffery Nettle KC was appointed to build on the Royal Commission into the Management of Police informants. He determined that his job had become untenable as his office had made repeated recommendations for the DPP to bring criminal charges against Victorian police officers.
These recommendations were seen but not heard by the DPP and they highlight a significant area of concern in relation to the prosecution or lack thereof of our police. In the report tabled to Parliament, there are multiple instances of alleged perjury, perverting the course of justice and misconduct in public office perpetrated by officers. The DPP received thousands of pages of evidence and hours of audio recordings but declined to file charges because they believed there would be no reasonable prospect of conviction, or the allegations were too difficult to prove.[6]
The proposed legislation to prevent the victims of this sordid affair from being able to receive compensation and to provide police members with immunity from prosecution was not greeted by the media as an attempt to sweep misconduct by government officials under the rug but was hailed as an end to a lawyer’s gravy train.[7] Of course the interests and rights of anyone accused of a crime are hard to sell. Pushing for the rights of someone thought to be a ‘criminal’ is an unpopular job. That doesn’t make it unimportant and it doesn’t make it wrong.
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The police, with their media liaison unit, vast resources, significant public platform and allies in the media, do not shy away from making destabilising comments either. Take the statements made by Deputy Police Commissioner Ross Guenther earlier this year. He chose to label the justice system as ‘overheated’ where, “vested interests pushing policies based on ideologies rather than facts hijacked the agenda.”[8] Engaging more in a culture war critique than a constructive analysis of the system.
The recent publication of Victoria Police’s about face on whether they owed Ms Gobbo a duty of care was, in more ways than one, remarkable. Not least because of the suggestion that the duty ceased to be owed because Ms Gobbo potentially transgressed the law. If she did, what then of her handlers?
Looking inwards at the police and the regularity with which they transgress the law is a matter of complexity, due to the difficulty in reporting and oversight. As of April 2024, IBAC released an annual snapshot of its independent police oversight role, identifying a rising number of complaints and notifications about police misconduct. In fact 58% of all complaints received by IBAC in 2023 related to Victoria Police. Serious incident notifications, which include any police conduct that results in death or serious injury was at a 19% increase from the previous year.[9] Misconduct extends from the top down. IBAC investigated former Assistant Commission Guerin and found that he had engaged in police misconduct through trolling, both on and off duty, with information he obtained in the course of his duties.
Conversely the judiciary has been marked by no such instances of scandal or criminal offending, yet they often bear the brunt of public dissatisfaction. Where the corrosion of judicial discretion in all its forms is labelled as being a cause of the public’s confidence being undermined. This is surely not the solution.
Any form of judicial decision making involves a delicate balancing act. For bail applications this involves a careful process of weighing up the protection of the community with the rights of those involved in the application. The individual, and community interests will always be at odds when a crime has been committed, it is here where the work of the judiciary is integral in striking a balance.
With the efforts of external corroding forces, judges are being pressured to consider how their judgments will appear rather than focusing solely on the law. Judicial officers subscribe to the convention of disengaging in political commentary or advocating for their own decisions. If they do choose to engage in a public discussion, it is often long after they have retired and in the context of a historical discussion.
Justice can appear to corrode and fade away not only when instances of injustice are uncovered and brought to light, but also if the public stops caring in the system itself. The consequences of this would mean other elements of our system of governance would suffer the same fate. The importance of those systems cannot be overstated. They should be examined critically, reformed and improved – but not simply attacked.
[1] Dr Pamela Schulz, ‘Rougher than Usual Media Treatment: A Discourse Analysis of Media Reporting and Justice on Trial’ (2008)
[2] ‘Greg Lynn and trying to pull a rabbit from a legal hat’, John Silvester (26/06/24)
[3] ‘Loss of faith in courts when truth takes back seat’ SMH (31/07/24)
[4] ‘Killer Deals’ Herald Sun (21/8/24)
[5] Media release by the president of the Judicial Conference of Australia (13/05/17)
[7] ‘Why the Gobbo case is like munching on a dead elephant’ The Age (13/8/24)
[8]A justice system in crisis, but does anyone care?’, John Silvester (23/02/24)