Handbook for Judicial Officers — Publicity and social criticism

The first thing to note is that when we talk about public opinion and community criticism of the judiciary, we are overwhelmingly referring to the administration of criminal justice, and in particular to judicial decisions on sentencing. The debate therefore concerns a narrow part of the courts’ work. In fact, much of what the courts do is accepted as uncontroversial. Cases involving the extinguishment of easements rarely excite public passions, and, to my knowledge, few newspaper columns have been written on the law of contract.

Community views on the administration of criminal justice however, have broader implications. As former Chief Justice Spigelman observed:^[9]

The second thing to acknowledge is that the community’s strong interest in, and concern about, the administration of criminal justice is entirely understandable and legitimate. As the Honourable Fred Flowers put it over 100 years ago when introducing the legislation establishing the Court of Criminal Appeal:^[10]

The unfortunate reality is that many people in the community are victims of crime or indirectly affected by criminal activity. These persons look to the criminal justice system to vindicate them and to provide justice for what they have suffered. They are naturally acutely concerned with the process and outcomes of judicial decisions on matters of crime and sentencing.

The whole community also shares a strong interest in criminal justice and punishment. Crime strikes at the heart of the community’s concerns about safety and social cohesion. Many people feel that criminal activity threatens their personal safety. Crime also represents a breach of society’s mores. Violent crime in particular is emotionally and morally shocking to all of us. It is not surprising, in this context, that the public has a strong interest in criminal justice.

In addition, criminal trials are often sensational and, at the surface at least, easy to understand. There is generally a coherent narrative of factual events. The alleged wrongdoing is often not technical. The harm to the victim is apparent. This means that criminal trials tend to receive more media coverage than other matters which come before the courts. It also means that the public does not readily think of a criminal sentence as an outcome of specific and technical legal principles, requiring expert evaluation. Members of the community therefore feel able and qualified to express an opinion about sentencing.

All this can be recognised. That said, the question remains: how are judges to react to the recurring accusations that we are out of touch with public opinion, cloistered from reality, soft on crime, or anti-victim? As I alluded to earlier, courts must not simply dismiss and ignore such charges as meaningless abuse. I think that former Chief Justice Gleeson put it well when he said in a 2004 speech that we “need to try to understand the meaning of the accusation, and do what we can to assess its merits, even though that may be difficult”.^[11] To this I would add that, having done so, we need to confront and counter criticisms that are not well founded and attempt to respond constructively to any that are, subject of course to the constraints which prevent judges from commenting on individual cases.

So what is meant by the accusation that judges are out of touch and soft on crime? To again quote former Chief Justice Gleeson, if the accusation is more than just a smear:^[12]

In other words, judges do not understand the reality or seriousness of crime, systematically give an “easy ride” to offenders, and ignore the community’s legitimate views on how to sentence offenders.

This, I think, is an accusation without merit. First, the proposition that judges are a cloistered elite who do not understand the real world impact of crime is simply untrue. It is undeniable that judges, generally speaking, enjoy socio-economic privilege and do not live in the neighbourhoods most affected by violent crime. However, as the tragic events of recent times have demonstrated, criminal conduct can affect all socio-economic and geographic areas of the community.

Judges are not isolated from the reality of crime. Not only are judges members of the community, but sentencing judges have seen more of the reality of crime than most members of the community can imagine. With great respect to the media, the community and members of Parliament, it is judges who day after day have contact with people from disadvantaged social backgrounds, both offenders and victims of crime; it is judges who review gruesome exhibits; it is judges who hear evidence of violence and abuse in criminal proceedings; it is judges who read victim impact statements and see in court the grief of victims whose lives have been torn apart; it is judges who grapple with the history that many offenders have of addiction, mental illness and neglect; and it is judges who try to balance an often impossible set of competing considerations to come to a result that is appropriate according to law. To accuse the judiciary of not understanding crime simply fails to take account of these matters and is incorrect.

Interestingly, a new variant on the “out of touch” theme has emerged. One media commentator has suggested that far from being cloistered, judges have too much exposure to the realities of crime and become, in effect, immune to it. That criticism, like the one that judges are isolated from the consequences of crime, simply fails to recognise that judges do not sentence according to their emotional reactions, but according to established legislative requirements, guidelines and binding precedent, and with regard to the submissions made by the parties. Decisions are also subject to a right of appeal. The process is designed to ensure that factors personal to the judge are taken out of the equation.

Second, accusations that the judiciary is out of touch with the public on sentencing wrongly assume that the “public” has a homogenous view on these matters. The public who the judiciary serves is each and every member of the community, and the community does not speak with only one voice.

Third, research^[13] suggests that a significant proportion of the community is misinformed about crime and sentencing, and change their views of sentencing when presented with accurate information. That misinformation exists is perhaps not surprising. It is trite but true to point out that it is only the unusual, controversial or macabre cases that the public hears about. There are hundreds, if not thousands, of other criminal cases dealt with each year before our courts that never receive publicity. This naturally skews perceptions. Further, media coverage of the cases that do garner public attention is often selective. The judicial reasons given, the submissions of the prosecution, and the many factors which a judge must have regard to in sentencing, are rarely mentioned. The sentence is often reported as though the non-parole period represents the total term of imprisonment. These are just two of many examples.

These may not be the only reasons for misinformation, but as a substantial body of research from Australia and around the world consistently indicates, the fact is the community is misinformed. Most people overestimate both the frequency of violent crime and the chance that they will become a victim. A significant section of the population believes that crime rates are rising, when in fact statistics released in late 2013 reconfirm that almost all categories of crime, including non-domestic assaults, robberies and shootings have fallen over the last five years.^[14] A majority of the community also underestimates both conviction and imprisonment rates.^[15]

Research from the United Kingdom also suggests that members of the community who wrongly believe that crime rates are rising tend to perceive lenient sentencing as a cause of that increase, with many citing it as a major cause.^[16] While, to my knowledge, similar studies have not been conducted in Australia, this would suggest that the community sees sentencing as a “control mechanism”, and perceives lenient sentences as a failure on the part of the judiciary to prevent crime.^[17] The reality is more complicated. The legislation under which judges operate requires a sentencing judge to take into account many factors beyond general deterrence, punishment and retribution, although these are all key considerations.^[18]

What is telling about this misinformation is that when members of the community are provided with accurate information about the facts of a particular case and offender, they overwhelmingly support the sentences imposed, and many would impose more lenient sentences than the sentencing judge.^[19] That is not to say, of course, that there is not a spectrum of legitimate and informed opinions about the appropriate punishment of crime, some of which would support greater severity than that imposed at present. What the research does suggest however, is that on many occasions, the opinions that judges are out of touch are based on misunderstandings, and that those opinions alter when the individuals holding them are presented with accurate information. Emotional responses by the community based on misinformation are sincerely held and understandable, but they cannot shape the administration of criminal justice.

There is however, I believe, a subtly different although related meaning to the accusation that judges are soft on crime and out of touch with community expectations. Particularly when it comes from victims of crime or their families, it often appears to be a means of saying that the court has not done enough, in their eyes, to assuage the pain they have experienced. Victims and their families, particularly of violent crime, speak of sentencing in very personal and emotional terms; of being horrified, bewildered and hurt by the imposition of what they perceive as a lenient sentence. Such a sentence is often seen as a proverbial kick in the guts and a mark of lack of respect for the victim.

I can well understand the anguish that victims of violent crime and their families experience, particularly at the loss of a family member through a violent and unnecessary death. I also understand, as I believe do all judges, that “victims come to the criminal justice system seeking recognition and validation of what happened to them”.^[20] Victims rightly enough see the courts as responsible for publicly acknowledging the seriousness of what has been done to them. Some victims may want retribution; for the offender to experience something comparable to what they have suffered. Most want to know that what they have experienced will not be repeated, either by this offender or others.

In that context, the accusation that courts are ignoring the interests of victims needs to be considered carefully. As the High Court made clear in Munda v Western Australia,^[21] there is undoubtedly an obligation to victims in sentencing. The court stated:^[22]

Courts should not dismiss or ignore the validity of victims’ emotional responses to crime. Nor do I believe judges currently do so. However, it is a mistake to see an excessively punitive approach as the only way courts can recognise the interests of victims. It is unfortunate that the number of years an offender will spend in custody has come to be seen, at least in some sections of the media, as the only measurement of whether the experience of victims has been acknowledged by the justice system. Not only can no sentence of imprisonment erase the psychological and physical scars of violent crime, but, I reiterate, most victims want to see a non-repetition of criminal activity and protection of the community. The length of a prison sentence, while important, is not necessarily the best way to achieve this.

In sentencing, judges must take account of a number of sentencing purposes including punishment, deterrence, denunciation, accountability, rehabilitation, protection of the community and recognition of the harm done.^[23] Community protection from criminal activity flows through several of these legislative “purposes” and is a central factor in the sentencing process. However, as was stated by Howie J in R v Zamagias:^[24]

That is not to say that long custodial sentences should not generally be imposed for the most serious crimes or that courts should not necessarily respond to outbreaks of particular criminal conduct. Rather, it is to recognise that sentences which focus on rehabilitation are not imposed because judges do not care about victims and their families, but because this appears to be the best way to achieve the purposes of sentencing in those cases.

Recognising and alleviating the harm done to victims is not the courts’ sole obligation in criminal proceedings. Nor do judges have a discretion at large to reach a sentencing result within their own moral compass. The aggravating and mitigating factors to be taken into account in sentencing are specifically provided for in the legislation. The obligation of judges is not to express their own abhorrence at a particular offender’s conduct. It is to dispense justice according to law.

In sentencing, this means that the court must not only balance the overlapping and sometimes contradictory sentencing purposes to which I have just referred, but must also take into account the individual circumstances of the offender and the offence. While administering individualised justice, judges must also strive to treat like cases alike, ensuring that cases which provoke newspaper headlines are addressed in the same way as the countless others that receive no public attention and garner no outrage. This consistency is essential to ensuring equality under law and respect for the equal dignity of each person.^[25]

Judges are also constrained by a complicated web of legislative and common law principles, by decisions of courts superior to them, and in the adversarial system, by the manner in which parties conduct their cases. Judges would be derelict in their duty if they ignored the parties’ submissions in reaching a conclusion. Judges often comment, with good reason, that sentencing is one of the hardest things they do. None of this is about privileging an offender over a victim, or ignoring community concerns about crime. It is about fulfilling the judicial duty to dispense justice according to law.

That is why it is misconceived to say that judges are not properly performing their task simply because a number of sentences have been considered by the community, or sections of it, to be inadequate. In this context it must be remembered that there is an appeal process and the Attorney General or the Director of Public Prosecutions has the right to appeal to the Court of Criminal Appeal against any sentence imposed. In 2013, the Supreme Court sentenced 94 offenders.^[26] In the 12-month period ended 30 September 2013, the District Court imposed 2,889 sentences.^[27] In the same period 51 Crown appeals were lodged. Twenty-nine were allowed, 14 dismissed and eight abandoned.^[28] That is hardly indicative of systematic failure by judges to apply correct sentencing principles.

This, in fact, feeds into a broader point often ignored in criticisms of the judiciary. It is commonly said that judges have an obligation to serve the community. While certainly true, it is important to consider what this obligation consists of. The judiciary does not serve the community by formulating its own policy agenda, or by enshrining into law the opinions of particular sections of the community, or even the policy platform of a political party. We serve the community by applying and upholding the laws that have been passed by democratically elected legislatures, by determining cases based on established principle and judicial methods of reasoning, and by upholding the rule of law in an impartial and just manner. This does not mean that the judiciary should not take account of community expectations. Judges must have regard to informed public opinion — a difficult task given the breadth of views that exist in the community. Further, in many cases the legislation that the courts apply in fact represents a codification of public expectations and opinions. What it does mean, however, is that courts should not be responsive to media or community outrage in particular cases or categories of offence.

It is not part of a judge’s function to react directly to political concerns or policy agendas. If that were the case, we would lose both the separation of powers and the impartiality that the rule of law demands. Imagine for a moment that we elected judges — a proposal bandied around from time to time on talkback radio. A hypothetical judge, let’s call him Justice Jeffrey, then ran and was elected on the basis that in all criminal cases he would guarantee that the minimum sentence he would give would be six months longer than the previously imposed maximum. This sounds absurd to us, but I would direct you to the elections for the Supreme Court of Texas, where aspiring judges run slick political ads proclaiming their “proven conservative record” and featuring endorsements describing them as “the judicial remedy to Obamacare”.^[29]

To put it simply, with good reason, judges with official partisan positions would not be considered impartial. If judges were to respond to political concerns of this nature, our decisions might be popular in the immediate sense. This popularity, however, would come at the expense of community confidence that the judiciary administers the law impartially and independently, something that in the medium to long term is far more harmful to public confidence and to the rule of law than any hostility currently directed at the courts. As former Chief Justice Gleeson has pointed out, there is a difference between public confidence and day-to-day popularity.^[30] It is protecting the former that is of central importance.

Now I don’t mean to suggest from anything I have said so far that judges should be immune from criticism. As I stated at the outset, the administration of criminal justice is a matter of significant and legitimate concern to the community. Courts have nothing to fear, and indeed much to gain from informed, honest and balanced criticism. Nor am I saying that judges never get it wrong. However, the nature of the judicial role, in my view, entails that so long as judges are doing their work conscientiously and with integrity, criticism should be directed toward the decision or the relevant legal principle, as opposed to the judge personally.

Towards the end of 2013 we saw two contrasting situations play out in the media. First, a judge of the Supreme Court delivered a verdict that many people found unsatisfactory. This resulted in extraordinarily aggressive and vitriolic criticism being levied, not just against the decision but against the judge personally. Overwhelmingly, that criticism, which included defamatory and threatening material, failed to consider the reasoning process that had been undertaken. By contrast, in another case shortly thereafter, another judge reached a decision that seemed to satisfy the media and public. The judge in question was then treated as some kind of folk hero. The accolades heaped on her, while by no means undeserved, were irrelevant to the proceedings in question. This personalised approach to commenting on judicial decision-making, while it may sell newspapers and advertising space, is deeply problematic.

In 2013–2014 at least three judges of the Supreme Court have received death threats, for having done no more than make a decision that was unpopular in the community.^[31] Some might say that this is part and parcel of the judicial role. If so, it is a highly undesirable element of it. One assurance I can give, however, is that judges, consistent with their judicial oath, will continue to apply the law as they perceive it without fear or favour. That, I would suggest, is the true mark of judicial courage.

Most importantly however, the fundamental problem with individualised criticism is the effect it has on community confidence. It leads to a totally false appearance that judges sentence according to their individual perception and beliefs. As was said in R v Whyte,^[32] “nothing is more corrosive of public confidence in the administration of justice than the belief that criminal sentencing is primarily determined by which judge happens to hear the case”. I would add to that, that public confidence would also be undermined if the community believed that a judge’s approach to sentencing depended on his or her own idiosyncratic view.

Indeed this really raises the central reason as to why the public’s opinion of the judiciary matters. The community’s opinion is an issue not because judges want to be liked, but rather because it is of central importance to community confidence in the administration of justice and in turn the rule of law. As former Chief Justice Brennan has put it:^[33]

Sadly, I think the appeal to maintaining community confidence in the judiciary is often seen as self-serving — a cry by judges to protect themselves from criticism. Let me be clear. Community confidence in the administration of justice is not something that judges want to maintain for our personal benefit. It is something that is necessary for the functioning of the administration of justice and for the maintenance of the rule of law. Community confidence in the administration of criminal justice is critical to the willingness of victims to report crimes, to the readiness of witnesses to testify, to the peaceful acceptance of verdicts — even those which are vehemently disagreed with — and to compliance with court orders. It is for these reasons that the judiciary is anxious to preserve confidence.

Maintaining community confidence does not mean that there should be no criticism of the judicial system or judicial decisions. There will always be unpopular decisions, and it is a democratic right to comment on them. Moreover, confidence is not maintained by stifling legitimate criticism. Debate, robust scrutiny, and discussions about reform are essential to the legal system. We must not be too defensive about our faults, because it is only by acknowledging them that we can improve.^[34] The law is a product of society and as society evolves, so too must the legal system. No doubt there is room for improvement today, as there has always been.

Constructive criticism does not undermine the rule of law; in fact it helps preserve it. However, unconstructive attacks on the judiciary that are based on partial and sensationalist information, and which perpetuate community misinformation about the judicial system, “do a disservice not only to the judiciary but to the community at large … for [they undermine] without adequate cause, the judiciary’s trusteeship of the rule of law and … puts nothing comparable in its place”.^[35]

We should debate the adequacy of the legal system; but let it be informed debate. Take one topic of some controversy at present — mandatory sentencing. To the extent that such legislation is enacted then the courts will implement it. That is their duty.

However, an informed debate on the issue must go further than simply attacking sentences currently imposed by the courts, particularly if such attacks are without regard to the common law and legislative principles which underpin such sentences. There are a number of questions which must also be considered, including:

It is not my role to attempt to answer these questions or to join in the debate. However, these are the types of matters that should be raised and debated when discussing legal reform. Ultimately the question must be whether, regardless of the circumstances in which an offence was committed and regardless of the circumstances of the offender, a particular mandatory minimum sentence will always be justified.

In that context may I give one example of where, in my view, the debate on this issue has been misinformed. A justification for mandatory minimum sentences has been that the judiciary is not doing its job; that claim relying on statistics said to show that the average sentence for manslaughter over the period 2008 to 2012 is less than four years. There are problems with that approach on three levels. First, it begs the question of what is the job of the judiciary. I have already said something about that. Secondly, the suggestion is made without any apparent analysis of the myriad of types of offences which can fall within the crime of manslaughter, the particular facts of any case, the submissions of the parties and the many other matters a court is required to take into account. At the third level, the underlying premise is incorrect. The figure of less than four years presumably was taken from figures provided by the NSW Bureau of Crime Statistics and Research. However, those statistics merge manslaughter and driving causing death. The correct position was that in the years in question there were 176 persons sentenced for manslaughter, of which 163 were sentenced to a term of imprisonment. The average term of imprisonment was seven years and one month, and the average non-parole period four years and five months. If one looks at the middle 50% range, the head sentences range from five years and eight months to eight years, and the non-parole periods from three years and one and a half months to five years and six months.^[36]

Now I am not saying that a consideration of the factors to which I have referred would necessarily change a person’s views or beliefs. However, it would contribute to those views being arrived at on a properly informed basis.

Of course, you may well be thinking, “all well and good to lecture for 20 minutes, but achieving a sober, balanced and informed debate about law and justice is hardly an easy task”. You would be right. While some members of the community gain their information about the judicial system through direct interaction with the court, most of the public’s knowledge about crime and punishment comes through secondary information, the vast majority through television, radio and newspapers. What is required, therefore, is a shift in public discussion about crime and justice.

I recognise that the role of journalists and the media today is to report what their audiences will consider to be news, and that most of the courts’ work does not fall in this category. Sensationalism sells, and I imagine that relentless media cycles do not always facilitate the careful digestion of judicial reasoning. A heart-wrenching set of circumstances, a crim “getting off” because of an out-of-touch judge, and a message of outrage are themes which make for an appealing story, and which resonate with the community’s instinctive and understandable revulsion for crime.

If we are to improve community understanding of the sentencing process and the administration of criminal justice generally, then the courts must play a role in stimulating informed debate. There remains a judicial reticence to engage in public discussion, in keeping with Lord Kilmuir’s old rule that “[s]o long as a judge keeps silent when off the bench, his or her reputation for wisdom and impartiality remains unassailable”.^[37] Thinking of some of the things that were said on the Bench in past decades, I’m not sure if that rule ever held true. Any of you who have opened a newspaper in the last few years will know that silence is certainly no longer deemed to imply wisdom.

Judicial reticence is understandable, and has much to recommend it. As Sir Anthony Mason has observed, judges are not renowned for their sense of public relations.^[38] I am probably living proof of the wisdom of his comments. I do not think the judiciary should be regularly appearing on talkback radio, still less discussing individual cases or judgments. By the same token however, the days when judges could speak solely through their judgments and expect the confidence of the community are, I think, gone. If judges do not take an active role in explaining what we do and why, criticisms of the administration of justice are likely to go unanswered and thus be accepted by many as unanswerable.^[39] Community confidence in the judicial system is too important to allow that to occur.

I do not pretend to have a clear solution. However, I propose two measures that I hope will facilitate better community understanding of the judiciary’s work. First, in 2014 I encouraged judges to produce summaries of their judgments that give an overview of the reasoning behind a particular decision in a simple and concise fashion. Links to these summaries and to the judgments themselves were published on the court’s Twitter account, which was launched in late 2013. This allows the community and media to readily access and digest judgments of interest and will further strengthen the transparency of the court.^[40]

Secondly, in 2014 the court, in conjunction with the NSW Bar Association and with the support of the Law Society of NSW, hosted seminars on the process of judicial decision-making in criminal matters. One seminar will be for the media, one for parliamentarians, and one for community representatives, including groups working with victims and offenders. These seminars will include an explanation by judges of the principal matters that the judiciary must take into account in sentencing and will seek to answer questions and address concerns in respect of the process.

I must immediately emphasise that these seminars cannot involve a discussion of particular judgments or cases, much less the quality or performance of particular judges. However, those will be the only limitations. The judiciary is ready and committed to better explaining how we function. I sincerely hope that the media, parliamentarians and community will respond so that these seminars can stimulate discussion, and go some way toward better informing the public about the administration of criminal justice.

Community confidence in the judicial system is not an easy issue to address, but it is one that the judiciary cannot ignore and which is essential to the administration of justice and the rule of law. There are some things courts cannot do, but we can and should help stimulate informed discussion, explain how we operate, counter misinformation and reach out to the community. The ultimate aim of criminal law is to protect society from crime while doing justice to individuals. It is a goal I believe the public and judiciary share.