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    « Murder, mayhem, corruption | Main | Year in review: triumphs and tribulations »
    Saturday
    Jan072017

    Report card on judicial performance

    The rule of law is a fine thing and we should be grateful to have it when so many demagogues are on the loose ... Highs and lows of the judicial year ... Remembering Lionel Murphy, Tim Carmody and others ... Awe inspiring dirty linen ... Wig chaos in Victoria ... "Butt" squeezer Clarence Thomas at it again  

    JUDGES are the unsung heroes of our governance. They slave to prepare reasons designed to keep citizens from each others throats, to keep the peace, and to be bullet proof against the slings and arrows of other judges higher-up the food chain. Somehow, justice and the rule of law ticks-over, even if unevenly. 

    Inevitably the judicial finery does mask an amount of dirty linen, but nothing on the scale of last year's Tim Carmody affair in Queensland. Actually, the affair was reprised in a book of the same name sub-titled, "Australia's greatest judicial crisis". 

    It later emerged that the former chief justice of Queensland was entitled to recover the legal costs of getting his lawyers to vet the book, plus his bills for the Right to Information case over what in Brisbane legal circles is known as the "fat fuck" tape.  

    A spokesperson for the Queensland attorney general said:

    "In general terms the Judicial Officers Indemnity Guideline provides for the state to cover judicial officers' legal costs incurred in civil proceedings, investigations or inquiries arising from the performance of their public duties." 

    There was also the publication, in time for the Christmas sales, of former judge Stephan Walmsley's learned book, The Trials of Justice Murphy. The work was launched by journalist David Marr, who told a gobsmacked gathering that the former High Court judge was a "crook": 

    "Stephen, congratulations. In the thirty years since these unhappy trials, we've made up our minds about Lionel. He was a crook. And the great truth your book points to in the most subtle way is that juries acquit, but history doesn't."  

    However, it is to overseas that we should look for some really awe-inspiring dirty linen. 

    Former Arkansas district court judge Joseph Boeckmann was indicted on federal fraud and bribery charges for allegedly granting lighter sentences to young male defendants in traffic and small criminal cases.  

    According to the indictment, the judge dropped charges against nine defendants, whose ages range from 16 and 22, if they sent him nude photographs of themselves.  

    It's alleged Boeckmann told defendants they could perform "community service". They were asked to call his personal phone number and arrange the terms. 

    Texas country judge Joel Baker, who investigators say sent hundreds of sexually-charged Facebook messages to a woman, smartly resigned before any adverse findings were made against him 

    In Nigeria seven judges alleged to be involved in a bribery scandal were arrested. They included members of the Supreme Court, Federal High Court and Court of Appeal.  

    It's claimed they gave favourable rulings in exchange for cash, corruptly secured government appointments, and assigned "lucrative" cases to other judges on the take. 

    A raid on the "palatial home" of one of arrested judges revealed a fleet of fifteen exotic and expensive cars, including a Rolls Royce - but fortunately no whiff of sexual impropriety. 

    *   *   *

    In Victoria, comparatively trifling matters, such as barristers' wigs, excited attention. Chief Justice Marilyn Warren had issued an edict saying that judges should not wear wigs in civil cases. Apparently, this meant that barristers should similarly be unwigged. 

    In court Justice Kevin Bell birched members of the bar who didn't get the message: 

    "You are not showing, and neither are your colleagues, showing the respect that I expect of the Chief Justice from you and I want to record my profound disappointment that one, two, three, four, five members of this bar table have wigs on, though I applaud the strength of character of your junior who does not." 

    Justice Bell added that he also felt "disrespected". 

    A later judicial missive clarified the situation that a judge without a wig means that counsel must be wigless. 

    Contrasting such clarity, the wig protocol of Victorian County Court judges requires advocates to at all times carry a handy ready-reckoner

    *   *   *

    In Canada a committee of the Judicial Council recommended that federal judge Robin Camp be removed from the bench. During a rape trial the judge asked the victim:

    "Why couldn't you just keep your knees together? ... Why didn't you just sink your bottom down into the basin so he couldn't penetrate you?"  

    Sensitively, he added that young women, "want to have sex, particularly if they're drunk ... some sex and pain go together". To show he had a real grasp of the issues during the trial he referred to the victim as "the accused". 

    He told the disciplinary committee that his knowledge of Canadian criminal law had been "non-existent". 

    *   *   *

     

    Sadly, fresh allegations arose against US Supreme Court judge Clarence Thomas. During his senate confirmation hearings in 1991 Anita Hill alleged that Thomas sexually harassed her while working as his assistant at the Department of Education and the Equal Employment Opportunity Commission. 

    Last year Moira Smith, 41, posted on Facebook that Thomas had repeatedly squeezed her "butt" and pulled her towards him at a dinner party when she was 24. She is now general counsel for Enstar Natural Gas Co in Alaska.  

    Thomas said the allegation is, "preposterous ... it never happened". 

    *   *   *

    Back home, Adelaide barrister Claire O'Connor SC complained of octopus type behaviour from a male colleague. She posted on Facebook her concerns about the old guard's control of the South Australian profession, lack of gender equality and that she had been the "victim of serious infringements, once by someone who now sits on our District Court". 

    The Advertiser picked up the story which didn't impress the local legal satraps who said: 

    "We are concerned by the possible negative suggestions which a reader might draw from the post about individuals and key institutions within the administration of justice." 

    *   *   *

    Fortunately, the New South Wales parliament passed the Courts Legislation Amendment (Disrespectful Behaviour) Billwhich dealt with disrespectful behaviour towards judges, not disrespectful behaviour by judges. 

    It provides for up to 14-days porridge for anyone who does something unpleasant, like not standing when a judge enters or leave court. 

    Parliament swung into action after Milad bin Ahmad-Shah al-Ahmadzai, charged with car theft and attempted murder, refused to stand for Judge Gregory Farmer, claiming he's not subject to any higher order other than Islam.  

    Members of parliament weighed in with the usual fertile contributions. Craig Kelly, Liberal MHR for Hughes, said:  

    "Failure to stand is not only contempt of the court, it's showing contempt for our constitution, contempt for our democracy and contempt for the rule of law."  

    Justice Michael Adams on the NSW Supreme Court was tickled with a feather by the appeal judges after they thought he interrupted counsel too frequently during a trial involving a dispute between mortgage lending company and two of its former managers.  

    Some of the judge's interventions were "openly sarcastic or dismissive, or at least displaying scepticism and incredulity".

    The overall impression was that Adams had "descended into the arena and adopted the mantle of advocate", which meant the proceeding had been, in effect, an inquisitorial hearing and procedurally unfair. Go back, start again. 

    *   *   *

    As if rising sea waters were not concern enough in Tuvalu, the locals were out on the street protesting a decision of their chief justice, who is also the Australian barrister Charles Sweeney QC. 

    Sweeney CJ found that former prime minister Apisai Ielemia was ineligible to sit an a member of parliament because he was in breach of constitutional requirements. This enraged the politician's supporters who took to the streets demanding the CJ "go home". 

    Will we see Rod Culleton's supporters out with placards and petitions if Justices Kiefel, Bell, Gageler, Keane and Nettle remove him from the senate? 

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