Interview with Chief Judge Wager

Interview with

Chief Judge Wager

Chief Judge Julie Wager

Prior to your Honour’s judicial appointment what was your experience of the District Court?

Wager CJ: As a young lawyer in the criminal law section of Legal Aid of Western Australia, I had the opportunity to appear regularly in the District Court. These appearances became almost daily once I commenced practice as a sole practitioner and prior to my appointment as a Magistrate in 2000. Although some of my very early appearances before one or two of the judges were character building, I was fortunate enough to appear as counsel before fantastic Judges of this Court who I admired so much. I was often counsel before his Honour Paul Healy who presided over impeccably run and very fair jury trials. He had a keen interest in the law and ensured that points that arose were dealt with appropriately and efficiently. Paul Healy was a judge who took his judicial oath very seriously indeed. I am so glad the District Court Library is named the Paul Healy Library in his honour.

I also appeared regularly before their Honours Kevin Hammond and Antoinette Kennedy both before and after each was appointed Chief Judge. Kevin Hammond’s presence when presiding in court was magnificent. His sentencing remarks were eloquent but pragmatic and his message clearly hit the mark with the offender. He never belittled the offender nor chastised them about their personal circumstances or backgrounds of misfortune. Instead, his Honour used the opportunity to make it very clear that the offender’s conduct was bad and that was the reason why the offender was being punished. His Honour then went on to encourage the offender. Kevin Hammond was an early fan of therapeutic justice. This was hardly surprising because his Honour’s sentencing remarks were naturally solution-focussed. Even where his Honour imposed a sentence that was on the high side the offender would receive it well because the offender would be given hope and dignity. Her Honour Antoinette Kennedy sentenced with empathy, mercy and common sense. This was a significant achievement given her many years on the bench. Even at the end of an overwhelmingly long sentencing list her Honour ensured that each offender was treated fairly and with respect. It is fair to say I learnt a huge amount from all of the District Court judges before whom I appeared.

From a Jurisprudential perspective what have been some interesting cases heard in the Court?

Wager CJ: The Court’s jurisdiction in both criminal and civil is so broad and the issues to be determined so diverse that any list of jurisprudentially interesting cases would be frighteningly long. The District Court has been the starting point for many judgments that are so well-known it is easy to forget that they were originally first instance cases. One example is Longman v The Queen (1989) 168 CLR 79. This was a matter that was heard at first instance in the District Court. The High Court decision dealing with the warning judges are required to give when there has been a significant delay between the alleged sexual offending and the offender being brought before the court is now trite law. Dinsdale v The Queen (2000) 202 CLR 321 argued by retired Judge Gillian Braddock dealing with suspended terms of imprisonment is another case referred to on a daily basis. Washer v The State of Western Australia (2007) 234 CLR 492 and Mule v The Queen (2005) 221 ALR 85 are also simply referred to by name with little thought about their origins. Judge Levy was instructing counsel in the latter case. In civil, Rosenburg and Percival (2001) 205 CLR 434 and Czatyrko v Edith Cowan University (2005) 214 ALR 349 and Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 are a few of the important decisions that were heard at first instance in the District Court. Recently Lawrence v Province Leader of Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27, a decision of his Honour Judge Herron, clarified a number of issues raised in historical sexual abuse causes of action following amendments to the Limitation Act 2005 (WA). The Court has dealt with so many important civil

matters including, but certainly not limited to, medical negligence cases, common law matters relating to traumatic brain injuries and complex contractual issues.

How has the business of the Court changed over the years with jurisdictional changes?

Wager CJ: The business of the Court has changed significantly over the past 50 years particularly in relation to criminal matters.

Last year alone 1651 indictments were lodged, 2071 sentences were imposed and 373 trials proceeded. The jurisdiction in relation to sexual offences increased in 2005 when serious sexual offences came to be dealt with in the District Court rather than the Supreme Court. More recently, the increased use of methyl-amphetamine in our community has led to a significant increase in serious drug trafficking and violent offences. Since January 2019, the Court has exercised increased jurisdiction in non-homicide criminal matters with a maximum penalty of life imprisonment. Criminal matters have continued to increase in complexity too. Up until 2010 it was the norm to have jury trials that were listed for one or two days. A short trial is now a three to five day trial and an increasing number of trials are listed for multiple weeks reflecting greater forensic challenges and evidence such as DNA, telephone tapping and covert activities. There has also been an increase in the number of indictments against multiple coaccused.

In the civil jurisdiction, personal injuries claims, workers’ compensation matters and our appeal jurisdiction have all been the subject of substantial amendment and significant growth. The amendments to the Limitation Act 2005 (WA) that came into effect on 1 July 2018 removed time limitations for claims for damages for child sexual abuse causes of action and changed the civil landscape. In the first year after the amendments 134 writs were filed by claimants in respect of child sexual abuse causes of action. In addition, in that first year 111 applications in respect of claimants who had not previously commenced proceedings but were now seeking orders setting aside settlement agreements and seeking leave to commence proceedings were filed. Many of the claimants are now elderly people who are claiming in respect of alleged sexual abuse that occurred when they were very young children in institutions. The Registrars of this Court, particularly Registrar Kubacz, have sensitively mediated a number of these matters. The Court needs to deal with some of the claims urgently given the age and infirmity of the claimants. Fortunately the court has systems in place to deal with hearings on an expedited basis.

In your opinion what are the biggest achievements of the Court?

Wager CJ: Despite the huge demands on the Court, the District Court has continued to be the Court for the whole of Western Australia. It still sits in 12 different locations from Kununurra in the north to Esperance in the south. This is a huge achievement in 2021.

The Court has also adopted measures to protect children and vulnerable witnesses by pre-recording evidence, using CCTV facilities during trials and engaging witness support officers. The Court is far more efficient than it once was. The introduction of video link, audio link and electronically filed documents has assisted. The Court has continued to refine its case management measures including mediation and pre-trial conferences in the civil jurisdiction, and case management by way of Sentence Mention Hearings, Trial Listing Hearings and Direction Hearings for criminal matters.

The collegiate nature of the District Court and the dedication of the judges and staff to ensure that justice is done is something that continues to amaze me. After 50 years this is one of the Court’s greatest achievements. Wager CJ: I don’t drink coffee so that is not an easy question, but Les and Chris who run the coffee shop in the foyer of the District Court Building are always cheerful and accommodating so how could you go past them.

Although the District Court is not a café, judges try to get together for coffee in Senior Judge Stavrianou’s chambers before commencing court. It is a very useful forum in which to discuss the day’s work ahead and the different approaches that we each take when exercising judicial discretion. It is also an opportunity to keep in touch with each other.

What does your Honour consider to be the biggest challenge at the Court?

Wager CJ: The disproportionate number of Aboriginal people coming before our criminal courts is a huge challenge. It is really important for Aboriginal people all over the State to truly have access to justice through the provision of interpreters when appropriate, the training of judges and court staff to ensure that court behaviour is culturally appropriate and by encouraging the employment of Aboriginal staff. In 2019 the judges were invited on country to spend time in an Aboriginal community in the Kimberley. The experience was invaluable and gave judges a greater insight into the many complex issues facing Aboriginal people in our courts. The court also focuses on ensuring culturally and linguistically diverse people and people with a disability are able to access justice. Another big challenge is the significant backlog of trials in both the civil and criminal jurisdictions. Even with our practice of overlisting trials, trial dates are now being listed in 2022. Overlisting means that as soon as one matter ends the next listed matter commences. This relentless pace places pressure on judges and staff but it needs to be maintained because our limited judicial resources do not match demand. There is a real danger that injustices could result if judges have neither the time nor the breathing space to carefully consider issues. Although the government has attempted to assist the court by facilitating the appointment of two additional judges last year more resources are urgently needed. The workload and the traumatic nature of the material judges consider has led to our strong focus on judicial wellness. Our judges are entitled to professional services and are encouraged to put wellness first. Judges need to be balanced and healthy in order to discharge their duties to the best of their abilities.

Lawyers who are not involved in criminal proceedings may not know that although the District Court sits in the District Court Building the Supreme Court also conducts its criminal trials in our courtrooms. Following the vacation of trials due to COVID-19 measures (that coincided with an increase in the number of accused indicted for murder) the Supreme Court lists are now bigger and longer than ever before. The Supreme Court is currently sitting in up to 5 of the 6 large courtrooms. This means that there are not always enough court rooms for District Court jury trials to be listed in the District Court Building. Courtroom accommodation is the biggest challenge for the future.

How did the business of the court change in response to the COVID-19 lockdown?

Wager CJ: My first day back in the District Court after two years as President of the Children’s Court was the day the lockdown commenced. Jury trials were immediately cancelled and personal appearances were virtually stopped. The Court used audio link and video link for appearances. We substantially increased sentencing in regional areas by proceeding by video link. In some circumstances judges conducted criminal trials as a judge sitting alone. Jury trials recommenced in late July 2020. We were able to get back on track by changing the way we approached the attendance of jurors and modifying the courtroom and court sitting times. Practical measures have included the insertion of perspex screens between spaced jurors’ seats, staggered court starting times to ensure that jurors are socially distanced from each other and had space to be seated to eat lunch in the jury assembly area. We commenced remote empanelling of juries from courts situated on the same floor as the jury assembly area. Remote empanelment reduced juror movement and kept numbers in the courtroom to a minimum. We are starting to wind back some of our lockdown strategies now, however, we will continue to use measures that save time and court attendance without impacting on the quality of justice.