Justice should not only be done

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"Justice should not only be done, but should manifestly and undoubtedly be seen to be done."[1]

– Lord Hewart

"This is not about your client’s harsh upbringing, nor their life-story, this proceeding regards the law."[2]

– District Court Judge

Introduction

The popularised image of courtroom dramas in no way prepared me for the everyday realities of our court system. Interestingly, glimpses of this over-dramatised form of the law appeared on occasions, through the conduct of enthusiastic prosecutors or dry magistrates. The marked separation in formality, conduct and atmosphere of each court was of more surprise than the variations in procedure. The local courts were characteristic of what might be called ‘assembly-line law’, where large numbers of cases were dealt with summarily, the magistrate often taking only minutes to move the accused on. The cases were simple and repetitive, it became difficult to see the participants as individuals, instead of yet another number to be dealt with. The complexity of the Supreme Court was very different, and the situation far more reflective of the discourse of justice and rationality that the law promotes. Whilst there is clear merit in the argument that different tiers of justice exist[3], it is generalist to argue it is the result of an insidious state ideology. Communication difficulties, unrepresented defendants, and uncompromising police were all prevalent. The local court magistrates did provide a glimmer of hope, they were for the most part quite prepared to step outside the formalistic model and facilitate a more egalitarian process.

The Realities of a Two Tier System – Personal Evaluation

It was instructive to view proceedings in the local courts against the background of what had occurred in the higher courts. McBarnet has persuasively argued that the modern legal system is characterised by a dichotomy in the way that justice and rationality operate in the higher and lower courts.[4] This provided the conceptual framework for an examination of lower court proceedings. One of the central convictions of McBarnet’s argument is that the elements that constitute the rhetoric of justice, due process, representation, the rights of the accused were not in evidence in the local courts.[5] With a dramatic increase in statutory law and clear emphasis on separation of powers doctrine a plausible legal explanation can be offered in explanation to society, if it chooses to inquire.[6]

The majority of observation time was spent in the local courts. The mythical status that criminal proceedings had occupied from the safety of academia and television was quickly dispelled. The programmed ideology of strict procedural formality and adversarial counsel did not match the reality. Findlay’s assertion that at least 95% of criminal cases were heard in the lower courts[7] certainly seemed to be borne out by the facts. In Redfer Local Court, there was a steady procession of minor drug offences that would almost inevitably end with the issuing of a 12-month good behaviour bond by the magistrate and a series of fifty-dollar fines for the possession offences, all under ‘section 9’.[8] The Act itself was not mentioned, it is questionable whether the accused had a better grasp of the authority used to convict them.

There was some correlation between what was observed in the local courts and the thesis presented by McBarnet. The vast majority of the defendants in the local courts were unrepresented, from apprehended violence orders to parking offences. Indeed, when one man sought an adjournment to seek representation at Redfern Local Court the magistrate could not conceal his laughter – the matter concerned a parking offence.[9] This stood in sharp contrast to the cases observed in the higher courts, where representation was universal. There is validity in the criticism that representation is a right only in the higher courts[10] but this must be balanced against the practical ability of the state to pay. From a justice perspective, even in the local court it was clear that representation was important.

The way that the magistrates acted did alleviate this form of injustice to some degree. The magistrate at Redfern Local Court would wryly observe "I could be crucified for this" before proceeding to offer ‘suggestions’ to the unrepresented.[11] His behaviour seemed recognition of his responsibility to actively intervene in proceedings to secure the rights of confused defendants with little understanding of the law. Whilst this justice may not be formal, it illustrates a different approach to achieving the same "traditional ideology" McBarnet argues is "blatantly ignored".[12]

Another element of the McBarnet critique is triviality, which, it is argued, allows the whole process of subjugation to take place away from the glare of media, furthermore, public attention.[13] One case observed in Hornsby Local Court provides an illustration of the informality and seemingly innocuous nature of summary proceeding, a young man appeared in court, fined for driving in a transit lane. After a guilty plea, the magistrate allowed a statement: the man proceeded to explain that he had been driving a hire car, and on seeing a sign that stated special hire vehicles were permitted in the transit lane had opportunistically changed lanes. The defendant’s story proved greatly amusing, and to the surprise of the court, the magistrate halted him mid sentence with the words "I can see that you are getting up a head of steam there son, charge dismissed".[14] The question arises as to whether the magistrate felt this matter did not have legal relevance as the triviality argument would suggest, or simply whether the judge is showing a humanistic streak necessary for maintaining traditional justice ideology. A more cynical approach would favour the former.

Carlen’s argument that "spatial dominance is achieved by structural elevation" was confirmed by each of the courtrooms.[15] Further blatant illustrations of power relationships between different parties were on display in the court. The simple architectural technique of elevating the magistrate’s position and isolating the prisoner (in the case of sentencing or bail applications) was utilised in all the courts. The Supreme and Redfern Local Courts were traditionally styled, with intimidating swathes of hardwood, whereas the Hornsby and Central Local Courts were almost post-modernistically frugal in their use of light and furniture. Whatever the architectural vagaries, the use of elevation and symbolism (through the coat of arms, different chairs and desks) was clear. Garfinkel argues that the entire operation of the court system was designed to dehumanise and objectify accused persons in the eyes of their denouncers, and this in turn facilitates ‘rationalised’ guilty verdicts. [16] Whilst this argument seems overstated, elements of social degradation can be drawn from earlier observations.

Manifestations of a Two Tier System – Competing ideologies

If there was an ideology of the local court it was expediency. All the magistrates seemed concerned with dealing with the cases before them as quickly as possible. The ramifications from this approach from a justice perspective are sharp, and further erode the traditional view of the court as a methodical dispenser of justice. The barriers to expedience were numerous. A recurring problem was the inability of people to effectively comprehend what was being explained to them by legal practitioners. Cultural differences and the need for translators only heightened this. Clearly, in such situations the desire for expedience generates the potential for misunderstanding and intimidation. My observations saw translation into Russian, Hungarian, Cambodian, Mandarin, Spanish and Hindi required.

The local courts did provide scenes more akin to the image espoused by television, especially through the antics of the police prosecutor at Hornsby. In an assault case (one of few contested trials), he heatedly engaged an Indian-Australian man in cross-examination.[17] The line of questioning sought to establish the circumstances of an alleged assault by the man against a woman on his property. The defendant argued that she was attacking him with his own pot plants and he was defending himself. The police sergeant was extremely aggressive, and consistently implored the defendant to "look at me sir!" when the man sought to direct answers to the magistrate, not the questioner. This was a phenomenon that I observed in all courts and pointed to the fact that people felt their stories must be explained to the person in charge – the power dynamic was clear.

The final observation of such manifestations was the most grievous, the plight of aboriginal persons in our justice system. Much has been written of their over-representation, furthermore the majority of this representation is at lower court levels. The representation of aboriginal people at appellate or ‘higher’ courts was "few and far between".[18] Far be it for this report to hypothesise as to underlying reasons, it could be suggested that this phenomenon might be due to the inaccessibility of justice, consequential of a two-tier system, this proposition requires further investigation.

Conclusion

The differences between lower and higher courts were substantial enough to pose the question of whether they had anything in common at all. Thus the integrity of magistrates emerges as being of the utmost importance in providing justice in local courts. McBarnet’s argument that the rhetoric of justice is ignored and replaced by state control in lower courts is overstating the case.[19] However, her argument provides a useful framework for analysing our current system, the differences between summary and higher court justice immediately apparent. The most prevalent being severe problems of accessibility for the parade of people before the lower courts. The sheer bulk of cases in such courts make it the most viable place to initiate reform, where comprehensible justice remains elusive for most defendants.

Bibliography

Carlen P., Magistrates’ Justice, (1976), Robertson, London.

Cuneen C. and Libesman T. (1995), Indigenous People and the Law in Australia, Butterworths, Sydney.

Findlay M., Problems for the Criminal Law, Oxford University Press, Melbourne.

Garfinkel, "Conditions of Successful Degradation Ceremonies" (1956) American Journal of Sociology 61

McBarnet D., Conviction: Law, the state and the construction of justice, Macmillan, London.

Ratcliffe S., The Little Oxford Dictionary of Quotations (1994), Oxford University Press, Oxford.

Richardson M., "A Background to the Current Legal Aid Funding Issues" (1997), Current Issues in Criminal Justice 9.

Court Observation Hours

Redfern Local Court

15th August – 10am-12pm (Summary Hearings and Bail Applications)

Hornsby Local Court (Court 1 only)

11th August- 10am-12pm (not guilty pleas on traffic offences)

15th August- 2pm-4pm (Hearing and judgments, mainly AVO’s)

District Court (Downing Centre, Lower Levels)

8th August – 10am-12pm Court LG2 (administration, bail applications) and 4.4 (hearings and sentencing)

Supreme Court

18th August – 11pm-12pm R v Geadah (Hearing) – Mainly to look at Court environment rather than specifics of the case.


[1] Lord Hewart, in S. Radcliffe (ed) The Little Oxford Dictionary of Quotations (1994), Oxford University Press, Oxford, 183

[2] District Court Judge, 8th Aug

[3] D. McBarnet, Conviction: Law, the state and the construction of justice, Macmillan, London, 153

[4] D. McBarnet, op cit, 123

[5] D. McBarnet, op cit, 145

[6] D. McBarnet, op cit, 143

[7] M. Findlay, Problems for The Criminal Law, Oxford University Press, Melbourne, 2001, 159

[8] Redfern Local Court, 15th Aug

[9] ibid.

[10] M. Richardson, "A Background to the Current Legal Aid Funding Issues" (1997), Current Issues in Criminal Justice 9, 159

[11] Redfern Local Court, 15th Aug

[12] D. McBarnet, op cit,

[13] D. McBarnet, op cit, 143

[14] Hornsby Local Court, 11th Aug

[15] P. Carlen, Magistrates’ Justice, (1976), Robertson, London, 21

[16] Garfinkel, "Conditions of Successful Degradation Ceremonies" (1956) American Journal of Sociology 61

[17] Hornsby Local Court, 15th August

[18] Court Officer, Kaye, District Court, 8th Aug



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