No place for Maximus on the Bench

Dr Manhattan Edit: For a more recent example of apparent bias, see Mogan Holdings Pty Ltd & Anor v Harrison [2011] VSCA 202.

The Court of Appeal recounted this unique exchange [at 16]:

Her Honour (to witness): … You just said ‘I would’ve expected to see more acute changes had there been trauma’. Now, had there been trauma on that day from a door or something like that, you would’ve expected to see acute changes, and you saw no such acute changes?

Mr Middleton: I object to that question, your Honour.

Her Honour: Excuse me, I’m the finder of fact here, Mr Middleton. You don’t object to my question.

Mr Middleton: Your Honour –

Her Honour: I have to understand what the witness is saying.

Mr Middleton: I am objecting, your Honour, because … you are putting a proposition to the doctor which calls for a conclusion which is deliberately weighted in favour of the plaintiff.

Her Honour: It is not deliberately weighted. You have made your objection it’s recorded.

(Her Honour proceeded to ask Mr Crock a number of questions including some leading questions.)

A new trial was ordered for this and other reasons.

Certainly some frank and fearless advocacy from the defendant’s counsel, perhaps worthy of some kind of valor award.

If you’re a fan of director Ridley Scott, you might remember his epic movie Gladiator, starring Russell Crowe as the Roman general Maximus, betrayed by the Emperor’s son and enslaved as a gladiator, only to find fame and glory in the Colosseum.

However, similar to Royalty, judicial officers are not supposed to descend into the arena and join the fray of battle. The metaphor comes from an old English case, Yuill v Yuill.

A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict: Yuill v Yuill [1945] P 15 at 20; 1 All ER 183 at 189.

That’s not to say that judicial officers can never ask questions of a witness. They can, but usually only to clarify some ambiguity.

[I]t is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by doing so he appear to favour one side or the other…The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure…If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate: Jones v National Coal Board ]1957] 2 QB 55 at 64.

The Privy Council last week delivered its decision in a case that demonstrates just how spectacularly the wheels can fall off the cart if judicial officers do ‘descend into the arena’.

In Michel v The Queen [2009] UKPC 41 the Judicial Committee quashed the conviction of accountant Peter Michel from Jersey. Jersey is a place said to be something of a tax haven, and apparently in the sights of the OECD and USA and other countries wanting improved information sharing. (Australia signed a Tax Information Exchange Agreement with Jersey in September 2009.)

Michel was charged with money laundering. Though the Privy Council described the evidence against him as overwhelming, it concluded it had no choice but to set aside his conviction because the judge in his trial breached the don’t-be-Maximus rule.

Not often is defence counsel, appealing against conviction on the grounds of an unfair hearing, able to turn the appeal court’s feeling from initial rueful concern to eventual deep dismay simply by reference to the number and character of the judge’s interventions in the course of the trial. Such, alas, is the position in this case and, overwhelming though the evidence against the appellant may appear to have been, the Board can see no alternative but to set his conviction aside: Michel v The Queen [2009] UKPC 41 at [1].

The problem was not just the substantial number of interruptions by the judge, but also their tone and tenor.

The Board turn at once to the central ground of appeal as to the fairness of the trial, focused as this is entirely on the Commissioner’s conduct of the hearing: his continual interruptions of the evidence, of prosecution witnesses as well as the appellant himself, of evidence in chief as well as cross examination. During the Crown’s case the Commissioner time and again asked questions damaging to the defence case which prosecuting counsel could never have asked—for example cross-examining the appellant’s clients to suggest both that they had behaved criminally and that this must have been obvious. During the appellant’s own evidence the Commissioner intervened with substantive questions on no fewer than 273 occasions, 138 of them during evidence in chief. Generally this was with a whole series of questions, taking up in all just over 18% of the appellant’s eight and a half days in the witness box. So much for the bare statistics. Of altogether greater significance than the mere number and length of these interruptions was, however, their character. For the most part they amounted to cross-examination, generally hostile. By his questioning the Commissioner evinced not merely scepticism but sometimes downright incredulity as to the defence being advanced. Regrettably too, on occasion the questioning was variously sarcastic, mocking and patronising: Michel v The Queen [2009] UKPC 41 at [12].

The Privy Council noted the Court of Appeal’s (the intermediate appeal court) regret that defence counsel had not objected more often. It certainly is the duty of an advocate to object to any perceived unfairness or unjudicial behaviour: R v Lars (1994) 73 A Crim R 91 at 130 – 31. Quite how to do that is the tricky part, especially as most judicial officers are, or at least were, pretty good advocates themselves and must sometimes wonder how long they must endure inane questioning.

But there are good reasons for judicial officers retaining above the fray, and Michel’s case provides one example, albeit an extreme one.

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