Evaluation of the ability of the responsibilities of the judgeto achieve the principles of justice
- The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of theresponsibilities of the judge to achieve theprinciples of justice requires students to write about relevant strengths and weaknesses. Responses will vary according to the arguments selected.
Arguments in support of theresponsibilities of the judge achieving the principles of justice include:
- Judicial impartiality relates to actual impartiality, but also to the appearance of impartiality. Precedent such that as that set in the 2011 case of LAL recognise that even apprehended bias on the part of a judicial officer damages the confidence that the parties and the public have in the
criminal justice system.
- Actual judicial impartiality, and independence of the parties as well as the government, allow both the accused and prosecution an equal chance to present their cases before the court.
- One of the judge’s responsibilities is to balance procedural equality with substantive equality of equity, by adjusting some rules and procedures to ‘level the playing field’. For instance, the High Court precedent set in MacPherson permits judges to inform the accused of “the rules of the game” so they have equal access to natural justice.
- The judge is given significant powers to manage trial features such as cross-examination, to ensure that reliable evidence is elicited while at the same time protecting the witnesses and the efficiency of the trial process.
- The judge can bring the different elements of the trial together for the jury in their summation. Witnesses give evidence one by one, but the judge can help the jury identify the inconsistencies and agreements. The judge can also receive questions from the jury and clarify issues they have understanding the law. This helps to achieve a more reliable verdict.
- The judge has access to evidence at sentencing that was not admissible at trial. This helps the judge form a more complete picture of the offender and victims, and ensure that the sentence takes personal factors into account and is appropriate to the specifics of the case and not just the law of the offence.
Arguments against theresponsibilities of the judge achieving the principles of justice include:
- Judges cannot entirely divorce their society and humanity from their professional judgment: they are trained to be impartial, but complete impartiality is impossible.
- Judges may gain greater consistency across matters in which they are not bound by precedent – such as sentencing – only within their own court area. Accused persons from different areas of the state have been found to have been treated unequally.
- The judge generally does not participate in the trial by calling witnesses, deciding which legal arguments and precedent to raise or presenting and arguing the interpretation of evidence – thus, their legal expertise cannot be used to benefit either party in the case or to actively search for the truth.
- Judges can only make decisions based on evidence and arguments put to them, and the outcome should be based on the best legal arguments rather than whom the court thinks is right. Judges have limited scope to use their own judgment, and are reliant on the parties and legal representatives.
- The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against one responsibilityof the judge, that it does achieve the principles of justice. Responses will vary according to the arguments selected.