ST VINCENT de PAUL FOUNDATION Ozanam Oration THINKING ABOUT JUSTICE Wednesday 24 March 2010
The Hon John Doyle AC, Chief Justice of South Australia Most of you will be aware of the Thinker in Residence program, sponsored by the State Government. A current thinker in residence is Judge Peggy Hora, our first “Justice Thinker in Residence”. Judge Hora is a retired American judge. For 21 years she was a judge of the California Superior Court. The proposal for a justice thinker in residence came from a committee of members of the judiciary and court staff, and in due course was endorsed by the Government. I take this opportunity to congratulate all involved. I look forward to seeing Judge Hora’s report. I hope that it will prompt an informed discussion about her proposals. I hope that the community will get involved. Judge Hora’s visit has caused me to think about justice in our community. I want to explain to you why it is that the pursuit of justice involves the pursuit of perfection, the pursuit of an ideal, but nevertheless in the end decisions must be made that are practical, and that reflect the realities of the situation. I also want to explain why it is that the pursuit of justice often involves a difficult balancing of competing and conflicting considerations. I will illustrate this by referring to the sentencing of offenders. Achieving justice is difficult, but we must keep trying to improve, even though we know we are pursuing an ideal that we will never fully achieve. The same is true of the area of health or education. We will never achieve a perfect health system, we will never achieve a perfect education system. Limits on resources, the fact that the system is operated by humans, and all sorts of considerations mean that judgments will have to be made, balances struck, compromises reached.
2 But despite this we must continue with the pursuit of the ideal. In my case it is the ideal of justice. We should continue to try to involve the community in the process. The justice system is there for the community, to administer justice within the community. There are many aspects on which community opinion and wishes are important, even decisive. I now want to explain why it is that I say that the pursuit of justice is the pursuit of an ideal, but that compromises based on practicality have to be made, competing interest must be weighed up, and balances struck. To illustrate my point I refer to a document published in September last year by the “Access to Justice Taskforce” of the Commonwealth AttorneyGeneral. I am not criticising this document in any way. I merely use it as a convenient recent illustration of the points I want to make. The document is entitled “A Strategic Framework for Access to Justice in the Federal Civil Justice System”. Having read it, I can see no reason why the points that it makes cannot be applied to the criminal justice system as well, and so I treat it, for my purposes, as applying to the legal system generally. Everyone agrees that access to justice is important. What would be the point of an otherwise perfect system for the administration of justice, if most people could not afford the court fees; if they could not afford to retain a lawyer to represent them; if they did not know enough about the system to know that it can protect them, or if the courts were so far away that resort to them was not a practical proposition? In other words, access to justice involves the cost of using the court itself, by which I mean court fees, the cost of getting legal representation, knowing that the system can help you, being able to get to the places where the system operates and so on. The Access to Justice Taskforce identified five principles to guide the approach to access to justice – accessibility, appropriateness, equity, efficiency and effectiveness. I want to focus on equity. The principle under that heading is as follows: The justice system should be fair and accessible for all, including those facing financial and other disadvantage. Access to the system should not be dependent on the capacity to afford private legal representation. Who could dispute this principle? Not me.
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But let us look at its components for a moment. The system should be fair for all. What about people who for cultural reasons cannot accept how our system operates, let alone understand its actual application to a particular case? Aboriginal people on the remote lands, or at least some of them, have great difficulty comprehending the principles on which our system operates, and do not understand court proceedings. I am sure the same is true of some of those who have recently migrated to live in Australia. Many of them come from countries where the justice system is fundamentally different, and to them our system is not comprehensible. What about people suffering from mental impairment. understand what is going on?
How can they
Most of us realise that we can only have one system for the administration of justice. Most would agree that we should do what we can to accommodate the difficulty of people of the kind just referred to. But most of us probably also understand that there is a limit to how far we can go. There are limits to the manner in which we can adjust it to accommodate the interests of these people. And we have to bear in mind that if we do, on the other side of the proceedings there might be another South Australian who finds it unfair that the system should be changed to accommodate the needs of the other party. The system should be accessible for all. Of course it should. But what about people with a severe hearing impairment? What about people whose sight is impaired? What about people who do not speak the language? Again, we do what we can to help such people, but any of you who have been in a courtroom will know that there are limitations to what we can achieve, and people of the kind just mentioned may be at a disadvantage. Access goes beyond this. The Supreme Courts sits in Adelaide, Port Augusta and Mount Gambier. Unless your case is heard in Port Augusta or Mount Gambier, you will have to come to Adelaide. Most lawyers, and nearly all barristers, are based in Adelaide. The Magistrates Court sits at a number of locations throughout the State. But there are still plenty of rural communities for which getting to the Magistrates Court is no minor matter, involving time, cost and inconvenience.
4 How far do we go to accommodate this aspect of access? It costs money for the Supreme Court to sit in places other than its home base. There is a tendency for governments to use cost arguments to encourage the courts to close registries in smaller towns. So once again compromises are made. Everyone would agree that the Supreme Court cannot sit in every town in the State, but perhaps it should sit in more than three? How does one decide? A compromise has to be reached. Access to the system should not depend on the capacity to afford private legal representation. I agree. We all know that legal representation is costly. It is labour intensive, and most of the work has to be done by qualified legal practitioners. There is limited scope for designing systems in the justice system that can be operated by unqualified workers. We do not have production lines. In many situations a person who does not have legal representation is at a real disadvantage, and in that sense the system is not fully accessible. In some situations the disadvantage may be so great that it can be said that the person is not able to obtain justice. Legal aid is available. But in the State system most of it is used in the criminal justice system and only for serious matters. It is difficult to get legal aid for a civil case. The legal profession does a large amount of work free of charge, under various pro bono schemes, as they are called. Although this is a generalisation, and so not completely accurate, the very poor can usually get legal assistance or free advice, the wealthy do not need it, and those in the middle will be in difficulty if they get involved in a substantial legal matter. That will apply whether it is criminal or civil. I should add that the cost of a lawyer is not the only cost. The Government fixes court fees, which are substantial. In the Supreme Court it costs $1,740 to issue proceedings. The filing fee for an appeal from a magistrate to the Supreme Court is $187 in a criminal case and $1,740 in a civil case. Transcript, that is the written record of evidence given, will cost $6.40 per page. There are other court fees. A waiver of these fees can be obtained, but again unless the person is poor, the fees will have to be paid. Most of us would agree that those who use the courts should make some payment. But should it be as much as it is? Some would argue that the system should be completely “user pays�. But if it were, many people would be unable to afford to go to court. So once again, compromises are called for.
5 There are other similar issues buried behind the principle that the system should be fair and accessible for all, and that access to the system should not be dependent on capacity to afford private legal representation. Sometimes one party is able to afford better quality legal representation than the other. There is no point denying that this can put a party at a disadvantage, despite the best efforts of the judge or magistrate. In a civil case the loser is usually ordered to pay the costs of the winner. The prospect of having to pay costs will sometimes put pressure on a litigant, and may result in the litigant having to capitulate, or settle on unfair terms. Is this a denial of access? We often hear complaints about delay. We have a fixed number of courtrooms and judicial officers. This necessarily limits the rate at which we can deal with cases. If the Government doubled the number of judicial officers, and increased by an appropriate number the number of courtrooms, we could eliminate much of the delay that occurs. But is it reasonable to expect the Government to do this? The costs would be substantial, and other publicly funded activities would have to be reduced. It is a bit like waiting lists at public hospitals. Increasing the number of hospitals and doctors will enable the waiting times to be reduced, perhaps even eliminated. But how far does one go? I think I have given enough illustrations. The “Access to Justice� Taskforce has identified a correct and basic justice principle, that of equity, embracing fairness and accessibility. But the practical application of that principle involves all kinds of practical considerations, the balancing of competing claims on the public purse and on the justice system, and the reaching of a sensible compromise. And this is true of the system of justice as a whole. These days it is the responsibility of the Government, through the provision of funding and by proposing legislation to Parliament, to strike that balance. Justice is administered by courts that are independent of the Government. But through its control over funding, and through legislation, it is the Government that makes many of the decisions about the workings of the system. The judiciary accepts and respects the role of government. Governments are elected to make these decisions. But it is the duty of the judiciary, and that of the legal profession, to remind the Government when necessary that the system is one for justice, and that we should always strive for justice.
6 So, for example, the idea that court fees should be fixed on the basis of “user pays”, because that is the basis on which some other government services are provided, is fundamentally unsound. Ours is a system of justice provided by the State. Providing a system of justice is a core function of the State. The application of the “user pays” principle would produce a denial of justice. To make this point is not to decide at what level the fees should be. It is merely to make the point that the basis of fixing fees in the administration of justice cannot be the same as the basis of fixing fees in other areas. I hope I have now explained to you adequately why it is that the pursuit of justice is the pursuit of an ideal, but in reality practical compromises must be made. I now want to turn to the administration of criminal justice to illustrate how similar issues arise in that area. I want to say something about sentencing of offenders in particular, to emphasise the point that sentencing also involves the pursuit of the ideal of justice, and the making of some similar judgments. I begin by making the point that even in fundamental aspects of the criminal justice system, decisions are made which reflect a practical judgment about what is the best way to achieve justice. For most offences, a finding of guilt requires proof beyond reasonable doubt. I expect that everyone here has heard that expression. That fundamental principle reflects a choice. We could say that if a person is charged, the person is to be found guilty unless the person proves he or she is innocent. We could provide that a person is guilty if the prosecution proves guilt on the balance of probabilities. In civil cases, proof is usually on the balance of probabilities. Such proof is easier to make out than proof beyond reasonable doubt. At the other end we could say that a person is to be found guilty only if they are proven guilty to the point of absolute certainty. We do not go that far. Requiring proof beyond reasonable doubt means that it is harder to prove guilt than it is to prove something in a civil case. It is not as difficult to prove guilt as it would be if guilt had to be proved to the point of absolute certainty. If proof on the balance of probabilities was enough, we would see an increase in the conviction rate. If proof had to be to the point of absolute certainty, we would see a reduction in the conviction rate.
7 A choice has been made on a fundamental matter. That choice has real implications for the way in which criminal justice is administered. It reflects our values. I am sure that all of you know how important the sentencing of offenders is in the administration of criminal justice. You will also be aware of the pressure in recent years for heavier penalties. This is fuelled by the print media, radio and television. Some politicians also push for heavier penalties. The courts are often criticised on the basis that their sentences are inadequate. Sentencing is important because of its impact on the offender and on the victim, and because it plays a part in the prevention of crime. It is properly of concern to the public. It is also important, because the approach to sentencing can reveal how we go about the pursuit of justice in our society. Sentencing is a complex exercise. Balances have to be struck.
There are many imponderables.
There are several key aspects of the process. First, punishment and denunciation. A sentence is intended to be a punishment, and to reflect society’s disapproval of the crime. One expects that the more serious the crime, the heavier the penalty will be. Choices are made by Parliament in determining which crimes are more serious than others, and so should attract a heavier penalty. Those choices reflect social values. The next factor is the prevention of crime. There are two aspects to this. First, deterring the offender from offending in the future. This is closely linked to punishment. The hope is that by punishing the offender, he (it is usually a he) will come to realise that there is no point in continuing to offend. The other aspect is general deterrence. The expectation is that society will be generally aware of the kind of penalty likely to be imposed, and so the penalty will deter other offenders in the future. The less commonly referred to aspect of prevention is what is called incapacitation. Particularly with a hardened offender, it may be that imprisonment is the only way of stopping that person from offending, and so he is “incapacitated� from offending by being locked up. The other key factor is that of reform and rehabilitation. The aim of sentencing is to change the offender, to rehabilitate him, and to encourage him to become a productive member of society. The point is often made that unless we sentence everyone to life imprisonment, sooner or later the
8 offender is going to come out. It should be that the offender comes out as a changed person, trying to avoid offending in the future. We also need to consider the position of the victim and the victim’s family. But we are not allowed to impose the sentence that would satisfy the victim. Sometimes the victim would be satisfied only by a sentence that would be much heavier than could be justified. A forgiving victim might be satisfied with a sentence much less than is appropriate. So we have to consider the position of the victim, but it cannot dominate our decision. You will probably appreciate how these factors can clash. For one offender, being in court may be enough to deter him, prison may not be required. But general deterrence might require imprisonment and the seriousness of the offence might call for imprisonment. Reform and rehabilitation, for a person whose prospects are good, will usually point towards a lower sentence. But other factors may point towards a higher sentence. An overriding requirement is consistency. As far as possible, like offences committed by like offenders should attract about the same penalty. That is another complicating factor. First offenders will usually receive more lenient treatment than repeat offenders. Offenders whose offending is accompanied by substantial mitigating circumstances will receive a lesser sentence than offenders without mitigating circumstances. An offender who pleads guilty will usually receive a lesser sentence than the offender would receive if he did not plead guilty. All of these factors go into the mix, and then the judge must make a decision. You will see, I hope, that once again the system calls for consideration of all sorts of factors which can point in different directions. A balance has to be struck between punishment, deterrence, reform and rehabilitation. Sentencing involves the application of justice. Along the way, in the pursuit of that ideal, a penalty has to be decided upon which reflects all of the considerations to which I have referred. In saying this I am not saying that courts do not make mistakes. They do. That is why there can be an appeal against a sentence. Nor am I saying that judges and magistrates know better than anyone else how to deal with crime. Dealing with crime as a whole is a complex issue.
9 First, social attitudes are important. In a society in which violence against women is tolerated, violence against women will tend to flourish. The police play a major part in the prevention of crime. The risk of detection and arrest is surely the most significant deterrent of all. The lower the risk of detection, the more likely a potential offender is to decide to give it a go. Governments play a part through the social welfare system, by supporting those who are struggling to cope with life. A good deal of offending has its origin in troubled families, social disadvantage and the like. How the government responds to these matters plays a part. The Courts play a part by fixing a sentence. The sentence we fix allows for deterrence, but is not dictated by it. The Department for Corrections plays an important part, through the manner in which they deal with prisoners while they are imprisoned and after their release. The point I am making is that the Courts play a part in the prevention of crime, but only a relatively small part. A knee jerk reaction of calling for heavier sentences can be counter productive. It will not always be the way to prevent a particular kind of offence. Judge Hora put things graphically when she said: “We should distinguish between offenders who make us mad, and offenders who are bad.� Offenders who make us mad are offenders who have acted impulsively or foolishly, even though the result may be a serious crime. Such an offender may not require the same treatment as an offender who is a genuinely bad person. Again and again, choices have to be made. Take the current problem which is plaguing us; of young drivers killing their friends and sometimes themselves while driving a motor car. This problem cannot be solved by the Courts alone. So in sentencing offenders, we need to recognise the difficulty of the decision, and the fact that any sentence reflects a judgment made after considering a range of circumstances. I want to conclude by saying something briefly about the Parole Board. You will all recall how, last year, the Board came under heavy criticism as a result of a man released on parole committing a number of serious offences.
10 The Board has a very difficult task. Parole is a process of releasing offenders into society, after they have served part of their sentence, to see whether, with appropriate support, they can learn to change their ways. It is essentially a good process. Once the person has served the minimum period that must be served, having regard to the requirements of sentencing, the person can be released on a trial basis, with appropriate support, guidance and supervision. But sometimes things will go wrong. We can say with complete safety that a certain number of persons released on parole will reoffend. There is no way of being absolutely certain which parolees will be successful, and which will fail. The concentration on the occasional failure ignores the many success stories. We have to accept some disappointments, although obviously the Parole Board must bear in mind the risk of harm to the public when making a decision. But spare a thought for the Board in their difficult and thankless task. The success stories usually go unnoticed. It is the mistakes that attract attention. If we are unforgiving about this, we will reach a point at which we will never get the right sort of person for the Parole Board. Conclusion I have tried to explain that justice is an ideal. The pursuit of justice in practice involves striking a balance and making judgments. The administration of justice is not achieved by applying simple formulae, or simple and rigid rules that give a clear answer. I have illustrated this by referring to the difficult process of sentencing. As a community, we need to be realistic and mature when thinking about the administration of justice. We need to understand the sometimes imponderable elements that are in play. I regret that the community is not more involved in our thinking about justice. The views of the community are always helpful. Criticism forces us in the judiciary to think through the reasons for doing what we do. And we need to remember that justice is administered in the community and for the community. If those who administer justice are on a completely different track from the community in which and to which they administer justice, we are heading for a problem.
11 So, lets hope that our Justice Thinker In Residence can lead the community to think about the pursuit of justice, and the decisions that that involves.