Judge Sandy Street, from the FCC, is not the only judge recently to be repeatedly spanked by superiors further-up the judicial food chain. Forceful spanking of trial judges by appeal benches … Victorian Country Court judge in trouble for over-zealous bollicking of defence counsel during criminal trials … Trials tainted by judge’s “heated conversations” with counsel … Back to school … Barry Lane reports
Judge Sandy Street, from the FCC, is not the only judge recently to be repeatedly spanked by superiors further-up the judicial food chain.
See:
Sandy Street overturned in pooch discrimination case
Another birching for Sandy Street
In Victoria, it is Judge Geoff Chettle of the County Court who has displeased the appeal judges, more than once, for not treating defence counsel with proper respect and consideration.
Sandy’s infractions, which appear to have emanated from a rather laudable effort to demolish the huge backlog of immigration appeals waiting in the Sydney registry’s list, sadly resulted in a lack of attention to natural justice.
Summary dismissal, extremely summary in some cases, was Sandy’s chosen method of dealing with the cases assigned to him.
Geoff Chettle’s problem, on the other hand, arose from what he apparently perceived to be counsel’s incompetence.
In Piccolotto v The Queen the Court of Appeal (Redlich, Santamaria and Beach) allowed an appeal against conviction by an accused who claimed that he hadn’t received a fair trial because HH constantly interrupted his counsel’s cross-examination of prosecution witnesses and made disparaging remarks about him in the presence of the jury.
On that subject HH directed the jury that:
“During the course of this trial there have been, from time to time, you might think, some heated conversations and debate between [counsel for the accused] and myself, and you will – a couple of occasions where you might have thought I was being critical of [counsel for the accused], and if you thought that you were probably right, but having said that, I want you to understand just because I express some concerns or criticism of [counsel for the accused] does not in any way reflect upon whether or not the crown approve [sic] the case against his client, it is a separate issue.”
Although Chettle gave what might have been considered by the jury to be a neutral direction in relation to his interchanges with defence counsel, described by the Court of Appeal as “a very experienced practitioner”, the court nonetheless was of the view that it wouldn’t have cured the vices arising by HH’s management of the trial.
On that score they said:
“While allowing for the possibility that such a forensic decision [not to apply for a discharge of the jury] may have been made, we are driven to the conclusion that the exchanges between the judge and the applicant’s counsel, together with the other frequent remarks directed at defence counsel’s conduct were likely to have had the adverse effects about which the applicant complains.
First, the judge’s conduct must have seriously undermined the credibility and competency of counsel in the eyes of the jury.
Secondly, there was a real risk that the jury formed the impression that the judge thought the defence case to be without merit. It was inevitable that the atmosphere of the trial was tainted in a manner so adverse to the applicant that, by the time the jury retired to consider its verdict, it could not be asserted that there had been a fair trial.”
It appears that it was counsel’s first jury trial.
Tensions were raised when the jury foreman sent a note to the judge indicating that some jurors were concerned that the judge’s interaction with counsel was being taken as an indication that the judge didn’t think that the accused’s counsel was up to snuff and that the defence had no merit.
Although HH gave a direction to the jury that he was not expressing any view about the merits of the defence case and that they should not draw any inference adverse to the case or counsel from comments he had made, the court of appeal was not persuaded that the obvious prejudice resulting from the trial judge’s remarks was cured by his direction:
“Two points can be made about that direction. First, it did not address the jurors’ perception that the judge had formed the view, throughout the whole of defence counsel’s cross-examination, that she was ‘bad at her job’.
Although his honour had, at an earlier stage and in the absence of the jury, denied any suggestion that he considered defence counsel to be incompetent, it was significant that he did not say anything to unequivocally dispel that perception on the part of the jury in their presence. Indeed, it might be thought that the general thrust of his direction was to precisely the opposite effect …
Secondly, his honour did not, and perhaps could not, adequately address the real concern, expressed in the note, that his repeated interventions, sometimes using strong language, indicated that he had formed an adverse view of the defence case.
By responding only that he had been endeavouring to keep the trial moving along, the direction did not confront the specific problem that the note posed. His honour did not unequivocally state that he had not formed an adverse view, of the appellant’s guilt, only that he should not have been understood as expressing any opinion.”
Defence counsel also made an application to discharge the jury, which was refused.
The appeal court said that HH applied the correct test to determine the application to discharge, nonetheless by that stage of the trial the rejection of the application “failed to address the main problem” – the fact that counsel’s credibility had been irreparably undermined and could not be cured by a direction.
The appellant’s situation was effectively rendered “almost hopeless”. By the time of the final address by the accused’s counsel there was little likelihood that the jury would pay due regard to anything that she said, given their belief that the judge had little or no respect for her as an advocate.
All in all, not a ringing endorsement for HH’s conduct of the trial.
Where to now for judges so publicly rebuked? A quiet chat over a cup of tea with the head of jurisdiction, “counselling” from a retired judicial worthy or, horror of horrors, a compulsory course on courtroom decorum at judge’s school?