Blow the whistle on our faceless bench

http://www.news. com.au/heraldsun /story/0, 21985,24903968- 5000117,00. html

Herald Sun
13 January 2009

Blow the whistle on our faceless bench
By Geoff Wilkinson

There is clearly something wrong with our legal system and our priorities when cricket and football umpires are subjected to more scrutiny than judges.

How can it be that people adjudicating on leg before wicket and push in the back decisions are held more accountable than those who preside over trials that can send people to jail for years?

How bizarre that we can watch countless replays from every angle of the circumstances leading to an umpire's decision, but aren't even told the name of a trial judge whose decision has been appealed against.

Like many aspects of the judicial system, the Court of Appeal's refusal to identify judges whose peformance it reviews is quaint at best.

The rulings and reasons of the Court of Appeal in this state are easily accessible online. The court's judgments name the three judges on the appeal bench, the appellant, the respondent and the barristers and solicitors who appeared for each side.

The only name missing is the identity of the Supreme Court or County Court judge who presided over the trial which later generated an appeal against conviction or sentence.

Court of Appeal judgments coyly refer to "the learned sentencing judge", "the learned trial judge", "His Honour" or "Her Honour" in assessing the judge's rulings made during the trial and the warnings, directions or other instructions given to the jury.

Many other jurisdictions in Australia, including the High Court, are not so precious.

In New South Wales, the appeal court names the court, the date and the judicial officer whose work is being assessed. Tasmania, Western Australia, the Northern Territory and the ACT have the same policy, and High Court judgments on Victorian appeal cases also name the judge involved.

Appeal courts in Queensland and South Australia appear to believe, like Victoria, that politeness is more important than public interest.

Chief Justice Marilyn Warren, the state's most senior judge, describes the practice of not routinely naming judges on appeal as a matter of courtesy and convention.

Chief Justice Warren says there has been no attempt to in any way hide information, and there is no reason to doubt her, but surely the practice she inherited was originally based on a desire to avoid embarrassing  members of the judicial old boys' network.

It makes as much sense as some other legal conventions, like everyone in court having to bow to the bench and lawyers and judges wearing horsehair wigs.

In these days when we hear so much about openness and transparency, the notion that judges should be shielded from criticism of their performance is Victorian in every sense.

County Court judges are paid a salary of $277,158 a year with a 60 per cent non-contributory pension. Supreme Court judges receive $319,900 a year with the same pension arrangements.

Retrials cost between $75,000 and $100,000 for a five day trial.

In the last six months the Court of Appeal has heard 58 appeals. With such large amounts of taxpayer funds involved, there is a strong argument for transparency.

Chief Justice Warren questions the use of appeal statistics as "a scorecard for judges" and says they can not be taken at face value without examining individual cases and the reasons for appeal decisions.

But the state's Director of Public Prosecutions, Jeremy Rapke, QC, recently asserted that record numbers of successful appeals suggested something was seriously wrong with the way criminal trials were being conducted.

With that in mind, surely the identity of the judges most frequently appealed against - and the outcome of those appeals - is a matter of public interest.

The public is entitled to know the names of judges found to have made errors leading to successful appeals, particularly if they are found to have erred on a regular basis.

In fact, it's hard to understand why the appeal statistics made available by Chief Justice Warren - to her great credit - would not have already been sought by the leaders of our courts, rather than by an inquisitive newspaper.

Like cricket and football umpires, journalists or any other public figure in a position of power and influence, our judges should not be above the law.

And in the words of another, more logical, legal convention, justice must not only be done but be seen to be done.

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