Judges Behaving Badly: Poor Judicial Temperament

‘Judicial temperament’ describes a judge or magistrate’s emotional responses within the courtroom and general attitude towards those within it, as well as to the law and legal process.

A judicial officer with an good temperament is fair, patient, calm, unbiased, and treats lawyers, prosecutors, defendants, witnesses and courtroom staff with courtesy and respect.

One with a poor temperament may use their position of power to bully and demean others within the courtroom. They are often unwilling to give lawyers, prosecutors and self-represented litigants a fair opportunity to present their side of the case, and may be reluctant to treat others with appropriate levels of respect and courtesy.

Comment from the top

Former Chief Justice of the High Court of Australia Murray Gleeson had the following to say about judicial temperament:

“modern lawyers, litigants and witnesses, and the public generally, are much more ready to criticise judges whose behaviour departs from appropriate guidelines of civility and judicial attachment. This is a good thing. If judges behave inappropriately, they should be criticised”. 

Prevalence

My experience is that judicial officers in the higher courts – such as the District and Supreme Court – often have the best temperaments. Perhaps this is because they tend to deal with fewer cases throughout the day. Indeed, they are unlikely to have case after case of drink driving, drug possession and common assault matters – day in, day out.

And while most magistrates in the local court can be described as fair and respectful, many experienced criminal lawyers share the view that some of the worst examples of poor judicial temperament are found in the local court.

While the monotony of the local court may provide some explanation for poor judicial conduct, it should never be seen as an excuse. After all, no one should be subjected to patronising or condescending treatment within what is essentially their workplace (in the case of lawyers, prosecutors and court staff) or during an already nerve-wracking day (for defendants and witnesses) – least of all at the hands of a person who is meant to uphold and promote good conduct and morals.

Indeed, the community is entitled to expect that those who are entrusted with immense power and paid from the public purse act to a high moral standard.

Impact of discourtesy

The impact upon those who are treated unfairly or publicly demeaned by a judicial officer can be immense.

A defendant may feel justifiably aggrieved that their case was not properly heard, forming the view that the magistrate or judge’s decision was predetermined.

A defence lawyer or prosecutor may feel they were unable to fairly present the case of the person or entity they were representing, and develop a sense of resentment towards the particular judicial officer in question, and disillusionment towards the system generally.

In each case, confidence in the judicial process will be adversely affected.

Lack of accountability

In workplaces across Australia, the act of bullying or demeaning colleagues or employees can lead reprimand or even dismissal.

But even magistrates who are notorious for their poor treatment of others inside the courtroom are unlikely to face disciplinary action, let alone dismissal from their positions.

In NSW, a judicial officer can only be removed by the governor on address from both houses of the parliament in the one session. Misbehaviour or incapacity must be proved for this to occur.

Magistrates and judges enjoy additional protection under section 41 of the Judicial Officers Act 1986, which requires a report from the Conduct Division of the Judicial Commission before removal can even be considered.

While these measures go some way towards protecting judicial independence and safeguarding against removals for political reasons, they also create a situation where judicial officers know they can behave poorly without personal consequence.

Your rights

Many litigants are forced to represent themselves in our nation’s local courts.

Unlike in the US, those accused of criminal offences in Australia do not have a right to a ‘court appointed attorney’. Defendants who are not eligible for legal aid but cannot afford to pay for a private lawyer will therefore often find themselves up against a well-funded, professional prosecution service.

Unrepresented defendants are particularly susceptible to bullying, which is why magistrates and judges are supposed to take special care to ensure they understand the law and legal processes.

Those who feel unfairly treated by a judicial officer can lodge a complaint to the Judicial Commission of NSW, which is an independent statutory body tasked with investigating complaints.

A formal complaint to the Judicial Commission must:

• be in writing (ideally using the Judicial Commission’s complaint form),
• identify yourself and the judicial officer involved,
• be supported by a statutory declaration that verifies the particulars of the complaint, and
• be lodged with the Commission’s Chief Executive.

The Commission’s function will not review the merits of a legal decision – in other words, it will not decide whether a correct decision was made by the magistrate or judge in question. That is the function of an appeal court.

Rather, it will investigate the conduct of the judicial officer during the court process.

Furthermore, the Commission does not have power to reprimand judicial officers, but must take one of the following steps after a preliminary examination:

• summarily dismiss the complaint,
• refer the complaint to the relevant head of jurisdiction, or
• refer the complaint to the Conduct Division.

If a matter is referred to the relevant head of jurisdiction (for example, a complaint against a local court magistrate would be referred to the Chief Magistrate of NSW) the judicial officer may be subjected to counselling or, if appropriate, administrative arrangements to prevent re-occurrence.

In more serious cases, the Commission may refer the matter to the Conduct Division. If justified, that Division would refer the case to the Attorney General, who would then present the Division’s report to both houses of parliament.

Parliament would then vote, and if a majority were of the opinion that the conduct justified removal, the judicial officer would be removed from office.

That, however, is a rare occurrence indeed.