Handbook for Judicial Officers — Impartiality and fairness

I was born in a small village called Sfikia in northern Greece. The village is 103 kilometres south-west of Thessaloniki and is in a remote mountainous area. We had no running water, electricity, gas or sanitary facilities in our house.

Due to our poor living conditions and limited prospects, in 1968, my parents decided to migrate to Australia. I was then eight years old. No member of my family spoke English and we had little knowledge of Australia.

When we arrived in Australia by ship in April 1968, our first home was a Nissen Hut at the Broadmeadows Migrant Hostel.

I attended a succession of local disadvantaged government schools.

When I was growing up in Broadmeadows in the 1960s and 1970s, there was widespread racism against non-Anglo-Celtic migrants. I was the victim of racism until I was about 15. I was called “Wog”, “Choc”, “Greaser”, “Dago” and “Spag” and was frequently told to go back to my own country.

From the age of about 14, I set my sights on studying law at Melbourne University. This became my ambition because my experience in acting as my parents’ interpreter from the age of nine taught me that the best way to protect yourself and your family is to know your legal rights.

In 1978, I enrolled in a combined law and commerce course at Melbourne University. I did not experience any racism at university. I did, however, initially feel out of place. Unlike me, most of the other law students came from private schools, were articulate and confident, and seemed to know each other.

I completed my course in 1982 and was awarded the Supreme Court Prize.

In March 1983, I commenced articles of clerkship at the firm that is now known as Corrs Chambers Westgarth. I became a partner of the firm in July 1988. Two years later, in July 1990, I became a partner of the firm that is now known as King & Wood Mallesons. I remained a partner of that firm until my judicial appointment in May 2008. I was the second solicitor to be appointed directly as a judge of the Supreme Court of Victoria.

I did not experience any overt racism in the legal profession. Fortunately, in the 1980s, fierce competition forced firms to recruit and promote lawyers on the basis of merit.

Australia’s legal profession today is ethnically diverse and that is one of its strengths. Ethnic diversity within the judiciary is a relatively new phenomenon. Victoria has had a number of judges with Italian backgrounds but I remain the first and only Victorian judge with a Greek background.

I will now discuss the attributes.

The first attribute of a good judge that I will consider is independence. In this context, independence means being free of any loyalties, duties or interests that might inappropriately influence the performance of a judge’s functions.

Independence is of the essence in judicial office. Constitutionally, the judiciary is the third arm of government and performs the key role of ensuring that the other arms of government, the Parliament and the Executive, do not exceed or abuse their powers. The independence of judges is underpinned by their security of tenure and other constitutional guarantees. Unlike in some other countries, Australian judges cannot be removed from office simply because the government is not happy with their decisions. Independence enables judges to strike down invalid laws and to order the government to cease acting in an unlawful manner. Through a writ of habeas corpus, a judge can order that a person be released from unlawful detention. By standing between the state and its citizens, judges protect fundamental human rights and liberties. They can only do that if they are truly independent.

Upon his or her appointment, each Victorian judge takes the following oath of office:

The words “without fear, favour or affection” mean what they say. A judge must make decisions in accordance with the law irrespective of his or her personal preferences and without having regard to whether a decision will be unpopular with the government or will generate adverse publicity. Because judges are independent, powerful institutions such as the government, the media and large corporations know that they cannot influence judges through threats, intimidation or bribes. There are no backroom deals in the judicial system. All the processes are transparent and decisions are made according to law in open court. Parties that are unhappy with a judge’s decision cannot seek retribution against the judge. Their sole remedy is to appeal to a superior court which is also comprised of independent judges.

From a personal perspective, the racist abuse to which I was subjected between the ages of eight and 15 caused me to become withdrawn and to conceal my Greek identity. Once I realised that I should be proud of my heritage rather than being ashamed of it, I became much more confident and willing to stand up for myself and for what I believed in. I fought back against the bullies rather than allow them to get away with their abuse. A willingness to stand your ground and do what you believe is right in the face of threats and other pressure is an important feature of independence. It is a principle that I have followed since I was a teenager.

The next attribute is impartiality, which is closely aligned with independence. Impartiality lies at the heart of the judicial role and is reflected in the oath of office. Everyone who comes before the court must be treated equally regardless of whether they are wealthy and powerful or poor and marginalised. If a Minister of the Crown has infringed the law, a judge will make a finding accordingly and will not give the Minister any special treatment. If a judge were to compromise his or her decision-making so as to curry favour with the rich and powerful, or in order to receive positive media coverage, he or she would cease to be impartial and would seriously undermine the rule of law.

Good communication skills may not be an attribute in the strict sense but they are certainly essential for a successful judicial career. Judges are required to make rulings in the course of a trial and to give directions to witnesses and jurors. They must do so in a manner that can be quickly understood by those who must comply with the rulings and directions. In civil trials without juries and in appellate courts, judges must deliver written reasons for their decisions, often on complex factual and legal issues. The reasons must be clear and succinct so that the parties and other interested persons can understand them. If judges lacked good communication skills, the administration of justice would suffer.

It is commonly said that patience is a virtue. It is also an important attribute for judges. Judges need to be patient, particularly when listening to evidence that is implausible or to submissions which are dubious. Natural justice requires that the parties be given a fair opportunity to present their cases before a decision is made. If a judge acts impetuously by expressing fixed views prematurely or by cutting off a party before its case is completed, an appellate court might order a new trial.

The patience of judges is often tested by self-represented litigants who are unable or unwilling to comply with normal court processes and judicial directions. The best way for judges to manage a trial with a self-represented litigant is to carefully explain the issues and each stage of the process in simple terms and to keep reminding the litigant of them every time he or she deviates.

I hold the record for presiding over the longest civil trial in Victoria that involved a self-represented litigant. The trial in the case of Slaveski v State of Victoria^[3] ran for 115 days, the transcript comprised 16,166 pages and the length of my judgment was 655 pages. One media report of the trial described me as a “patient judge”.

Australia is a multicultural society which is made up of diverse ethnicities, languages, religions and cultures. The success of such a society depends on mutual understanding and respect. Peaceful coexistence requires the different cultural groups to understand and accept the key customs and practices of the other groups. Acceptance and inclusion of people who are different underpin multiculturalism. Conversely, negative cultural stereotypes strain harmony within the community and undermine multiculturalism.

Equality before the law and respect for other people’s rights are important elements of the rule of law. As the cultural diversity in the community is reflected in the backgrounds of those who come before the courts as lawyers, parties, witnesses, jurors and members of the public, cultural awareness and tolerance are essential for judges. All court users must be treated with equal respect regardless of how different they are or how unpopular their cause may be. Judges need to be culturally aware in order to avoid the performance of any of their functions being inappropriately influenced — whether consciously or unconsciously — by assumptions that are based on cultural stereotypes. Every litigant is entitled to have his or her case decided on the evidence that has been adduced and tested in open court in the course of a trial rather than on any extraneous considerations.

My experience as a victim of racism in my youth has helped me to gain a deep appreciation of the importance of cultural awareness and tolerance. I seek to uphold these values in my work as a judge.

At times, my Greek background has assisted me to understand the evidence given by some witnesses with European backgrounds. For example, in a case involving a claim for damages for personal injuries, the plaintiff gave evidence that, as a result of the defendant’s wrongful act, he locked himself in his house for three years. Counsel for the defendant then cross-examined the plaintiff at length to establish that he was lying because he was seen in the local bank and supermarket on numerous occasions. Counsel appeared to be unaware that, in some cultures, exaggeration is considered a legitimate form of emphasis rather than as a dishonest lie. Counsel’s cross-examination to establish that the plaintiff’s evidence was literally untrue missed the plaintiff’s point, namely, that he became withdrawn and did not socialise.

Courtesy is not only a basic human quality but an important attribute for judges.

Courtesy has not always been associated with the judiciary. In past eras, some judges regarded aloofness and gruffness as adding to judicial authority and to the mystique of the office. Those days are gone. Everyone who comes before the court is entitled to be treated with courtesy and respect. That includes self-represented litigants, people suffering a mental illness and those who are accused of heinous crimes.

I insist on courtesy in my court. If barristers are throwing barbs at each other in an offensive or disruptive manner, I tell them to stop. If a barrister shouts at a witness or behaves in a humiliating manner, I request that he or she desist. Courtesy is not incompatible with effective advocacy.

I try to practise what I preach. I tend to listen without interrupting except where this is necessary to clarify a point or to ensure there is order in the court. I do not make sarcastic or condescending comments. I believe that judicial courtesy bolsters the authority of the court rather than weakens it. I also believe that if judges treat people with respect, the community’s respect for the judiciary will improve. Community respect is fundamental to a strong and independent judiciary.

In my opinion, compassion has an important place on the Bench. That does not mean that a judge should find in favour of a litigant in a civil case because the judge feels sorry for him or her or should adjust the sentence in a criminal case depending on whether the judge empathises with the defendant or the victim. The law must be upheld and must be applied consistently in all cases. However, many areas of the law are unsettled or involve the exercise of a discretion. In such cases, there is legitimate scope for a judge to achieve a result that is not only legally correct but is also in accordance with the judge’s view of what is fair in the circumstances of the case.

Judges are not computers that can be given particular inputs and then programmed to achieve an outcome which can be predicted with precision. Disputes involving laws that are so clear that they can be interpreted and applied precisely tend not to come before the courts. Generally speaking, civil cases come before the courts because the opposing positions are at least arguable. In clarifying ambiguities in the law there is often scope for a judge to adopt a common sense approach. Common sense and compassion often go hand-in-hand.

Humility is not out of place in the judiciary. Where judges are assisted by counsel in the course of a trial, it is appropriate to acknowledge this at that time or at the end of the trial. Likewise, where a judge is under a misapprehension in a case, it is not inappropriate to acknowledge the error and to thank the party that clarified the position. Such respect and cooperation strengthens relations between the profession and the Bench and instills a sense of confidence in the humanity and integrity of the legal system in the eyes of court users.

Unlike lawyers, judges do not have clients and their income is not affected by the perceptions of court users about how well they perform their functions. Nevertheless, people skills are important for judges. Judges interact daily with lawyers, witnesses, jurors, members of the public and court staff. A judge with good people skills is better placed to manage trials efficiently and harmoniously than a judge without such skills.

Between 1968 and 1990 — a period of 22 years — I lived in the working-class suburb of Broadmeadows. As a student, I performed menial work in several factories in the area during the school holidays. I grew up with, and worked alongside, a diverse group of people, including many who would generally be regarded as battlers. There was no place for big words, Latin phrases or pomposity in Broadmeadows. My exposure to people from different walks of life while I was growing up in Broadmeadows has proved invaluable in my role as a judge, particularly in my interaction with parties, witnesses and jurors.

In my opinion, judges must remain active members of the community that they serve rather than become isolated from it. By remaining in touch with the community, judges augment the legitimacy and power of the judiciary. Examples of community involvement are hosting visits to the court by students, visiting schools, conducting moots for young lawyers and speaking at functions organised by the profession.

In some countries, judges live in official enclaves with high security walls and are driven to court in bullet-proof vehicles. Soldiers stand guard outside the courts in some countries. In Australia, judges exercise vast powers, but when they leave court, they go to their homes in the suburbs and blend into the community. In Victoria, judges are entitled to a public transport card and a government car but not a driver. I travel to and from the court by train and do not stand out in any way from other commuters. No one knows what I do for a living. When I visit the shops or attend a sporting event, I do not wear a judge’s badge.

The next attribute is a sense of perspective. By this, I mean the ability to distinguish between what is important and what is not worth worrying about and to prioritise your time and energy accordingly. A sense of perspective is important for judges, particularly when presiding over a difficult trial. A trial may be difficult for a variety of reasons, such as the complexity or volume of the evidence and submissions, or misbehaviour by a party, a witness or even a legal practitioner. Self-represented litigants, in particular, pose serious challenges for judges. Where these difficulties arise in a trial, the judge must remain calm and be able to promptly make rulings and give directions for the proper management of the trial. In assessing voluminous material and submissions, particularly where an urgent decision must be made, the judge must be able to quickly identify the material issues and put aside those that are immaterial.

The administration of justice is a serious business, with important obligations and responsibilities. Court cases involve tremendous stress for court users and therefore the courtroom is not the place for judges to try their hand at being comedians. That does not mean, however, that judges must be perennially uptight and unhappy. A balanced lifestyle, interests outside the law, a down-to-earth personality and a good sense of humour can increase a judge’s enjoyment of the judicial role. This can assist in ensuring that the mood in the courtroom is positive which, in turn, can ensure that the hearing is conducted in an efficient and harmonious manner.