Conventional court rituals of speech and behaviour expose entrenched tensions between the criminal justice system’s objectives of desiring efficiency whilst upholding confidence from the public. To achieve optimal procedural efficiency, there must be two key aspects: speed and finality of cases. I visited the local, district and supreme courts for a total of twelve hours to explore the manifestation of procedural efficiency in the courtroom. I recognised that court rituals provide an effective medium through which to recognise the difficulty of achieving these in tandem with due process. Judicial officers are constantly aware of this dilemma and thus for the maintenance of civil society, must continue to recognise their ethical and professional obligations in every case.
This argument is supported by two pillars:
- First, in contrast to the higher courts, a greater occurrence of frustrated demeanour was observed in magistrates. However, upon visiting the courts, I witnessed a majority of judicial officers exercising considerable determination to abide by their duty to adopt fair procedures appropriate to each case’s circumstances.
- Second, the difficult context an expanding summary jurisdiction creates was recognised in light of the courts having to maintain an image as a venerable institution. Observing court rituals therefore invites important critique of natural justice’s administration on pragmatic grounds of cost and delay in the hopes that despite the presence of political pressures for efficiency and greater criminalisation, legal personnel of both the present and future will endeavour to care about the world they are making, not only for themselves but for everyone else who will share it during their lives and after they are gone.
A District Court
The High Court recognises perception of impartiality as holding as much significance as the reality of impartiality in order to have a fair legal system, and ‘fairness’ is a hallmark of Australian courts. Mack and Roach Anleu extend this point by describing fairness as manifesting itself in the treatment of same stakeholders with an equal demeanour, interestingly defining demeanour as the manner in which judges “do authority” in the courtroom. When “doing authority,” I noticed a balance of both emotional detachment and positive engagement is required to communicate to the public that decisions are ultimately compelled by law and reason, not by transient emotion.
This was clear in R v Foures and R v Abboui, in which two French backpackers were receiving a sentence for supply of a prohibited drug. When considering special circumstances, the Judge expounded a lenient interpretation of backpacking at 27 years of age as an ‘immature activity.’ His visible engagement through sustained eye contact showed he was taking time to properly consider the case. Nevertheless, his engaged demeanour was paired with clear emotional detachment, not once displaying jovial mannerisms or sympathy to comfort the defendants.
Although Mack and Roach Anleu consider such traits to be important for perceived impartiality, magistrates retaining an image of authority and wisdom is paramount. This is because ultimately, the functioning of civil society is dependent on how disputes are resolved, so that the courts’ significance lies in the fact that they are the places where disputes are fundamentally settled. Whether the courts succeed in achieving this purpose is what influences public confidence in the judiciary, however the converse also holds true, as the courts need the public to take their work seriously in order to act with effective authority. Thus, too much friendliness may erode this and a marriage of engagement and emotional detachment in judicial demeanour is crucial to ensure public faith in the existence of due process.
B Local Courts
Higher occurrences of impatient judicial demeanour expose how external pressures for efficiency may hinder such meticulous dissection of the law in local courts. Mack and Roach Anleu recognise how time restraints and delays can limit a magistrate’s ability to fully consider a case with impartiality, noticeable through fluctuations in demeanour. My observation of R v Mitchell concurred with their sentiments, in which an injection of frustration was evident in the reproachful response “time you did” when a young and inexperienced Legal Aid solicitor temporarily replacing the solicitor-in-charge did not have the materials ready. This was supported by the critique “don’t you understand the problems your client is facing!” Although preparation of documents is important for procedural efficiency, the use of authority to undermine solicitors’ professionalism is inappropriate and was non-existent in the higher courts.
Judicial legitimacy derives itself from the way people in the courtroom are treated and whether within this treatment there is dignity and respect, as well as general awareness of the importance of recognising people’s personal status and identity. This applies to legal counsels as well as defendants. Nevertheless, the majority of magistrates did not demonstrate any arbitrary abuse of power.
Despite the government’s expansion of criminalisation in recent years contributing to congested court lists, I found admirable the courts’ willingness to spend time educating offenders in the efforts of discouraging recidivism. To provide an example, in the drug possession case R v Blinkhorn, the Magistrate reprimanded the young defendant “the dealer doesn’t care about you…you don’t know what is in the tablets,” concluding with “next time, think about the consequences of your actions.” This is laudable for two reasons:
- First, the courts are not compromising their duty of teaching offenders the legal wrongness of their acts in the face of large case volumes. Importantly, all young offenders convicted of drug possession at music festivals received a conditional release order without conviction. An approach that prioritises “speedy justice” would spend little time on their hearings to make space for cases with more weight. However, the magistrate gave an engaging speech of similar length to each defendant on the undesirability of re-offending. His impact was visible through the attentive distress of defendants. Thus, the courts are maintaining their common law position of not giving decisive weight to efficiency.
- Second, this demonstrates the judiciary’s commitment to the doctrine of separation of powers by prioritising due process as opposed to swift proceedings in the difficult contemporary context of expanding summary justice. The issue over-criminalisation places on the courts is the logical undermining of the construction of crime, as criminalisation of any act traditionally involves identifying it as behaviour that is condemned strongly enough to have induced the legislature to declare it as punishable.
All crimes should be treated with a similar level of formality and professionalism as, although degrees of criminality may differ, all involve state intervention in the person’s liberty and therefore require due process under the ideology of democratic justice.
On balance, there cannot really ever be a harmonious marriage between the two objectives of maintaining efficiency and upholding public confidence. Nevertheless, the stability of society largely depends upon the vitality of the criminal justice system and based on my observations, judicial officers present themselves as attaching great importance to the common law objective of upholding ideologies of procedural justice so that public confidence is maintained. Thus, to ensure the longevity and positive development of the criminal justice system, all that the courts can do is try to accomplish both objectives as they stand, without undermining one for the purpose of the other.
Alana Tarrant is in her second year of dual Bachelor of Arts (Languages) and Laws at UNSW. Follow Alana on LinkedIn.