Understanding Procedural Fairness In The Australian Judicial System

You are to visit the Downing Centre Court complex in Liverpool Street Sydney and observe a court case.

People bring their disputes to the court because they view judges as neutral, principled decision makers who make decisions based upon rules and not personal opinions, and who apply legal rules consistently across people and over cases

Tom Tyler, “Procedural Justice and the Courts,” Court Review

Consider, for example, whether the judge:

• displayed judicial fairness and impartiality toward all parties;
• acted in the interests of the parties without regard to personal prejudices;
• listened carefully and impartially;
• applied rules consistently across people and over cases;
• maintained a neutral demeanor or expression while in court;
• was open, clear, and transparent about how the rules of law were applied and how decisions were being made;
• consistently treated participants equally and displayed behavior appropriate for the situation;
• was unhurried, patient and careful.

1.How would you describe this judge’s ability to be neutral, principled and consistent?

2.How would you describe this judge’s respect for people and their rights?

3. How would you describe this judge’s skill at providing the participants a voice in the proceedings?

4. If you were to appear before this judge as a litigant, would you have confidence that this judge would treat you fairly? Why or why not?

Two Main Sources of Law in Australia

There are two main sources of law in Australia, case law or common law, based on the decisions of judges in the superior courts, and legislation, the law made by Parliament. Because of the Federal system of Government in Australia, we have:

1. Court decisions and legislation made by Federal Courts and Federal Parliament, and
2. Court decisions and legislation made by State Courts and State Parliaments.

Judges are responsible for making decisions in court are critical to the system achieving procedural fairness and in turn engendering community trust in authorities

Instrumental in the process is the conduct of the Judge. Body language and behavioural aspects such as voice, neutrality, and respectful treatment are central to how the court system is perceived.

Judges must be aware and pay attention to creating fair outcomes, they should also tailor their actions, language, and responses to the public’s expectations of procedural fairness. By doing so, these judges will establish themselves as legitimate authorities; substantial research suggests that increased compliance with court orders and decreased recidivism by criminal offenders will result. Procedural fairness also will lessen the difference in how minority populations perceive and react to the courts.

This court observation report aims to help you to understand the courts process and how the major parties conduct themselves in court.

People bring their disputes to the court because they view judges as neutral, principled decision makers who make decisions based upon rules and not personal opinions, and who apply legal rules consistently across people and over cases.

Tom Tyler, “Procedural Justice and the Courts,” Court Review

Consider, for example, whether the judge:

• displayed judicial fairness and impartiality toward all parties;
• acted in the interests of the parties without regard to personal prejudices;
• listened carefully and impartially;
• applied rules consistently across people and over cases;
• maintained a neutral demeanor or expression while in court;
• was open, clear, and transparent about how the rules of law were applied and how decisions were being made;
• consistently treated participants equally and displayed behavior appropriate for the situation;
• was unhurried, patient and careful.

How would you describe this judge’s ability to be neutral, principled and consistent?

I would describe the judge’s ability to stay neutral, principled and consistent as exemplar. He managed to handle the case before.him with fairness while also adhering to strict guidelines and principles of law. His approach to the parties and handling of witnesses proved his understanding of impartiality when handling court cases. For instance, he endured that both parties were given enough time to please their case. The complainant was accorded enough time to submit his course of action and the defendant was equally given enough time to respond. Additionally, whenever a statement was made by a party in the course of the trial which seemed to be prejudiciall, heresy or am outright and unacceptable lie, the judge gave the other party time to object such admissions and overrule them as he deemed fit. To maintain consistency, he ensured that court ruled were applied equally for both parties. His ability to hold on his principles ensured that he was not swayed by the antics and theatrics used by some parties to the case into winning his emotions. For instance, at one time, he was forced to send the petitioner’s witness out of the court for constantly yelling at the defendant and disrupting his testimony.

Importance of Judges in Achieving Procedural Fairness

Respect includes treating people well, that is, with courtesy and politeness, and showing respect for people’s rights.

Providing people with information about what to do, where to go, and when to appear, all demonstrate respect for both those people and their right to have their problems handled fairly by the courts.

Tom Tyler, “Procedural Justice and the Courts,” Court Review

Consider, for example, whether the judge:

• provided participants with specific information about what to do, where to go, and when to appear;
• treated everyone with courtesy, dignity, and respect;
• maintained appropriate courtroom tone & atmosphere;
• demonstrated appropriate consideration for the rights of all persons in the court;
• demonstrated an intention to do what is right for everyone involved;
• helped interested parties understand decisions and what parties must do as a result;
• used clear language when speaking to jurors, litigants, witnesses, and attorneys;
• demonstrated respect for people’s time and acknowledged their patience as needed;
• demonstrated interest in the needs, problems, and concerns of participants;
• seemed prepared for the proceedings;
• demonstrated appropriate body language (e.g., eye contact, facial expressions, posture, attire);
• demonstrated respectful voice quality (e.g., pitch, volume, tone);
• clearly articulated awareness of the practical impact on the parties of the judge’s rulings, including the effect of delay and increased litigation expense;
• clearly explained the reasons for his/her decisions when appropriate.

How would you describe this judge’s respect for people and their rights?

The judge’s respect for people and their rights was upheld to the extent they were not being exploited. One right that played a major role in the court cases was the right to be heard.  Both parties have a right to fair hearing before the court. While the judge tried to ensure that each party’s submission was being admitted before him,he had to stop parties and witnesses from testifying on certain issues. Some he claimed were irrelevant, others heresy but it was certain that most of the time he did this because of time constraints. Furthermore, his decision to send out a witness before he had fully given his testimony showed that he could only uphold the parties' rights to some extent. However on other issues to do with legal representation, detailed judgment and fair timing, the judge was keen enough to ensure they were observed.

Voice

People want to have the opportunity to tell their side of the story in their own words before decisions are made about how to handle the dispute or problem. Having an opportunity to voice their perspective has a positive effect upon people’s experience with the legal system irrespective of their outcome, as long as they feel that the authority sincerely considered their arguments before making their decisions

Tom Tyler, “Procedural Justice and the Courts,” Court Review

Consider, for example, whether the judge:

• allowed participants to voice their perspectives/arguments;
• demonstrated to the parties that their story or perspective had been heard;
• behaved in a manner that showed the judge had fully considered the case as presented through witnesses, arguments, and documents before the court;
• attended, where appropriate, to the participants’ comprehension of the proceedings

How would you describe this judge’s skill at providing the participants a voice in the proceedings?

The judge managed to provide participants a voice in the proceedings. First of all, before acknowledging and adducing any evidence brought before him either documentary or recorded, he.asked the antagonizing party whether he or she had been given the opportunity to see the evidence beforehand. The judge ensured each larties voice was being heard by requiring the participants to serve each other with sermons before trial. In the court, he maintained this position of being heard by constantly asking participants to respond to any assertions made by a party. For instance, at one time a witness said that it was not the first time the petitioner was being found to be mistreating her children. The judge immediately questioned the petitioner on whether it was true that she had prior been found to be mistreating the kids. He also gave participants the chance for cross-examination and reexamination just to ensure that they were all on the same page. Finally, the judge was keen to ensure that participants had given all the testimonies they wanted to submit. He asked them to confirm whether they had any witnesses, documents or any other form of testimonies they wanted to bring before the court. Before making his ruling, the judge asked theconvicted persons to mitigate their sentences.

If you were to appear before this judge as a litigant, would you have confidence that this judge would treat you fairly? Why or why not?

If I were to appear before this judge as a litigant, I would have confidence that he would treat me fairly because of his abilities to be neutral and focus on statements of fact. His neutrality is evident on the fact that he accords both parties the right to testify and be heard, as well as the opportunity to respond to allegations. Most importantly is the focus on statements of fact and being a litigant who would love my case being judged based on facts and the law,  I would have full confidence in him and the decisions he makes.