In a speech given at the NSW Law Society at the end of January 2012 Chief Justice Bathurst of the NSW Supreme Court said there is a crisis of confidence in the justice system.
If he wants to know a major reason for the crisis in confidence he need look no further than his own court, the NSW Supreme Court, and his predecessor, Chief Justice Spigelman, who resigned in disgrace on the 31st May 2011. Mr Spigelman still needs to answer some serious questions about his own criminal conduct and the corruption within the court, but more on that later.
CJ Bathurst’s reasoning seems to be that the lack of confidence is everyone elses fault except the judges. My argument is it is mostly to do with the criminal and corrupt conduct of judges and magistrates which CJ Bathurst conveniently overlooks completely.
From my reading of his speech his solution is for lawyers to hit the propaganda trail and get out there and start preaching.
CJ Bathurst said in relation to Australia “Only 35 per cent of us have confidence in our criminal justice system”.
His speech to a large degree dealt with juries and the benefits of having juries. But he made a number of statements that dealt with the broader issue of the publics confidence in the judicial system which is what I will focus on.
Below are some extracts from his speech which are in Italic and with their page numbering from his speech and with my comments below. (Click here to read the full speech) (It is 20 pages but uses a very large font so is a quick read).
COMMUNITY PARTICIPATION IN CRIMINAL JUSTICE
OPENING OF LAW TERM DINNER 2012
LAW SOCIETY OF NEW SOUTH WALES
ADDRESS BY THE HONOURABLE T F BATHURST
CHIEF JUSTICE OF NEW SOUTH WALES
SYDNEY, 30 JANUARY 2012
“Members of the lay community participate in criminal justice as a matter of course: as witnesses, complainants, accused and remanded. But in these roles they act as individuals. Their experiences and actions are not reflections of the collective social consciousness. When I speak of the community as a participant in the criminal justice system, therefore, I am referring to two roles in particular. First, to the active role of the jury – to assemble as a tribunal of 12 and pronounce judgment as a unanimous or near unanimous whole, on an individual accused of breaching our legal codes. Second, I refer to the passive role the community plays as an observer of the legal system, whose trust is essential to its legitimacy.”
“My concern is that the criminal justice system is currently experiencing a crisis of confidence. Community trust in the criminal justice system is eroding. Much of this distrust is fuelled by misinformation that is propagated by sections of the media who prefer to inflame rather than inform, and by politics that encourages fear mongering rather than educated debate.”
Well we can blame the politicians, the media and everyone else (which I quite often do), but the bottom line is if you are looking for someone to blame it is ultimately the judges and magistrates themselves. Too many are corrupt and there are plenty of examples on this site of that with many more to come.
“In an international survey of public confidence in national criminal justice systems, Australia ranked 27th… of 36 countries. Only 35 per cent of us have confidence in our criminal justice system. And while nearly three quarters of us trust in the police, less than one third trust in the courts. Our confidence has also steadily declined over the last 15 years.”
“We are not alone in these low numbers. The people of Estonia, Croatia, Russia and Slovakia all report a similar lack of confidence in their criminal justice systems. However in the jurisdictions we are used to being compared with, such as the United Kingdom, Canada and Ireland, public confidence is much higher. At least 50 per cent of people in those countries have a high level of trust in their criminal justice systems. It may provide some consolation, if not a great deal, that we at least outrank the United States.”
That’s right we are right down there with the likes Russia and Croatia. But hey, we do outrank the US, how good is that. Not very good at all really. Who can forget the “kickback scandal involving two elected judges who essentially jailed kids for cash. Many of the children had appeared before judges without a lawyer” in 2009. Former Luzerne County Senior Judge Michael Conahan and Luzerne County President Judge Mark Ciavarella “secretly received more than $2.6 million, prosecutors said” They both pleaded guilty. (Click here to read the full story)
Then there is the classic story of the US judge, former Oklahoma district judge Donald Thompson, that in 2006 received four years jail for exposing himself in court while on the bench. This is what it says on the USA Today site “A former judge convicted of exposing himself while presiding over jury trials by using a sexual device under his robe was sentenced Friday to four years in prison” (Click here to read the full story) So I would not be bragging about a better rating than the US.
In the US there is an organisation called Judicial Watch which has the motto “Because no one is above the law” that is dedicated at least in part to exposing and bringing to account corrupt judges. “Judicial Watch seeks to ensure high ethical standards in the judiciary through monitoring activities and the use of the judicial ethics process to hold judges to account.” (Click here to read more)
“Surveys show that most people in New South Wales trust that the rights of the accused are respected, that the accused are treated fairly, and that we effectively bring wrongdoers to justice. Why then is there so little confidence in the criminal justice system as a whole? It is because of a misguided perception that the legal community is soft on crime and out of touch with community expectations.” (Bold added in the speech by CJ Bathurst)
What rot, blaming the publics perception on the soft on crime issue and judges being out of touch would only be a minor issue. It is the clear and blatant corruption in the courts that is the main reason people have no confidence in the courts.
“Therefore, public confidence in our courts and criminal justice system is not only necessary to the maintenance of the rule of law, but to the quality and perception of our governance structures.”
“In the popular consciousness, criminal justice often represents the entire legal system. Faith in it is likely to be determinative of faith in the whole.”
I totally agree with the part “necessary to the maintenance of the rule of law, but to the quality and perception of our governance structures.”
But the next paragraph is wrong, people look at the entire legal system when determining whether or not they have confidence in the courts and criminal justice just happens to fall within that. It is not the other way around as CJ Bathurst suggests.
For the majority, at least, increased confidence will come from better information. There is little we can do about talkback radio and tabloid journalists trading on the demand for shock and scandal, but there are things we can do as members of the legal community to improve the public’s knowledge.
“First, we can participate in the debates about crime and sentencing reform that occur at all levels of society.”
“we should not forget that the discussions occurring in classrooms, on editorials and blogs, and even over talkback radio, are just as important in shaping public opinion and confidence in our justice system. Reasonable minds will differ as to the reforms we need, but we will remain true to our profession by participating in these debates and insuring they are kept informed and accurate.”
I am more than happy to debate anyone anytime including Chief Justice Bathurst. I wonder if I will have any takers. The real “shock and scandal” is coming from the courts themselves, not the media.
“Many other suggestions of ways to improve the jury process and confidence in the criminal justice system have been made, and should be investigated. I suggest that the proposals most likely to succeed are those that trust in people – in the members of the community and the jury – to be intelligent, diligent and fair. It is our responsibility to improve their chances by enlivening debate, and insuring that the information we distribute is accurate, relevant and accessible. Otherwise, we have little right to expect trust in a system that excludes the voice of the community it is meant to represent and protect.”
That is the problem, the voice of the people is excluded. Can anyone tell me on what basis Chief Justice Bathurst and the rest of the judges in this country were appointed? No. Because it is all done behind closed doors. The vast majority are mates of the governing political party of the day.
And who investigates complaints about judges. With the exception of NSW and now Victoria there is no independent bodies to investigate complaints. It is my understanding in Victoria the complaints are going to be heard behind closed doors which is a joke. And where has the NSW Judicial Commission been with the corrupt deals that NSW Supreme Court has been signing off on between the NSW Crime Commission and criminals. These deals have been found to be illegal. The NSW Judicial Commission should be holding an open and public enquiry which they are not.
Back to former Chief Justice Spigelman, I did a post on him on the 12/3/11 and he announced 6 days later on the 18/3/11 that he would be resigning on the 31th of May 2012. No reason was given.
But if you want a reason read two previous posts, one on Spigelman and one of his dodgy judgements (Click here to read the full post)
And another where the criminal conduct of the registrar’s office is raised where I said in a previous post:
“How the deal generally worked is that the NSW Crime Commission would do deals with the criminals to forfeit some of their proceeds of crime. The deal is meant to go before a Judge at the NSW Supreme Court to approve and make sure it is above-board. But this was being circumvented and it would be signed off by a dodgy Registrar at the court. This is so that a Judge would not have to get their hands dirty as they would be required to give and publish reasons for their decision.”
“One of the things being missed is the role of the courts, the Registrar and the former Chief Justice, James Spigelman. Not only would the NSW Crime Commission have known that having a court registrar sign off on the deals was illegal but Chief Justice Spigelman and the court would have known as well. If the registrar was signing off on the deal he/she would had to have received Chief Justice Spigelman’s approval one would have thought. The other option is that the registrar or registrar’s are corrupt.”
“But given Spigelman’s dodgy history and it would have to be odds on that he was up to his neck in it.” (Click here to read the full post).
I wonder what Linda Murph, CEO & Principal Registrar of the NSW Supreme Court (the lady standing in the photo) has told CJ Bathurst about corruption in the NSW Supreme Court. She obviously knows plenty given that the dodgy deals with the NSW Crime Commission would have been her responsiblity.
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