CH 14

Question 1

2 broad categories when thinking about judicial accoiuntability

Answer 1

Internal checks and balances

External checks and balances

Question 2

Internal

Answer 2

these are the processes and procedures used within the court system

Question 3

External

Answer 3

the traditional and newly evolved bodies seperate from the court system which check judicial power

Question 4

Paradox between judicial independence and accountability

Answer 4

The rule of law demands an independent judiciary which means that courts are free from the interference from the other arms of government. But how can a truly independent court system be held to account when no other part of the sytem can judge the judges

Question 5

2 internal accountability court holding courts to account

Answer 5

Doctrine of precedent and court hierachies

Appeals

Question 6

Doctrine of precedent

Answer 6

Courts make decisions and case that come before them, in doing so intermediate and superior courts may create new common law. These decisions are binding to all lower courts in the same hierachy

Question 7

Doctrine of p keeping courts accountable

Answer 7

Keeping courts bound to the decisions of higher courts restrains them and keeps them accountable to higher courts

Question 8

Appellate courts avoiding precedent acc

Answer 8

When appellate courts avoid precedents they judge to be wrong by reversing or overruling a precident, they are correcting the decision thus holding lower courts to account

Question 9

3 acc through appeals

Answer 9

Appellate courts
Examination from public and higher courts
Attorney General

Question 10

Superior Appellate Courts

Answer 10

Have judges with a higher level of expertise and experience and the power to reverse a lower courts original decision thus imposing scrutiny and acc on lower courts

Question 11

Examination from public

Answer 11

The reasons of judges decisions are publushed on the courts website and law reports… public availability may result in media or public scrutiny

Question 12

Examination from higher courts

Answer 12

Is a powerful check on the quality of the original decision and the capacity of the judge who made it. Individual judges whose decisions are regularly reversed will suffer damage to their reputation and may lose promotional opportunities

Question 13

Who is the attorney general

Answer 13

Is a minister in cabinet with responsibility for the judicial and court systems. They make reccomendations for judicial appointments and promotions.

Question 14

How is the AG and process of accountability

Answer 14

Judges may not be eligible for promotions if they constantly make decisions that get overturned or reversed

Question 15

Eg of Appeals process

Answer 15

Andrew Mallard was convicted by the cupreme court for murder in 1994 and spent 12 years in jail. The HC eventually quashed the original convition in 2005

Question 16

4 criteria of a fair trial (internal court processes, accountability)

Answer 16

Impartial adjudicators
Hear both sides
Evidence based decisions
Public Hearings

Question 17

Impartial adjudicators

Answer 17

Judges must remove themselves from a trial if there is a conflict of interest. Similarly jurors should declare any reason they should not be on the jury such as knowing the defendent

Question 18

How can impartiality be accountable

Answer 18

A biased judge or jury can be grounds for an appeal. If proven, an appellate court will reverse the decision or order a retrial

Question 19

Hearing both sides

Answer 19

Pre trial and trial processes are designed to give equal oppurtuinites to both parties to present their case… each may call call witnesses, submit evidence interrogate etc. The judge must uphold this procedual fairness

Question 20

How can procedual fairness be accounatble

Answer 20

If a judge should fail in their duty to ensure a fair trial, there may be grounds for appeal. An appellate court may reverse a decison or order a retrial

Question 21

Evidence based decisions

Answer 21

The adversarial system of trial has very strict rules of evidence designed to ensure that only evidence of the highest quality is admissible and used in the search for the truth

Question 22

Eg of inadmissable evidence

Answer 22

Hearsay or opinioj evidence

Question 23

Process of testing evidence

Answer 23

• Each party may present evidence and the other parrty is free to test that evidence.
• They may object to evidence if it falls outside the rules of evidence.
• The judge then rules if the evidence is admissable
• only evidence that has survived being testes in court may be used by the jury in their final decisions

Question 24

Charging the jury

Answer 24

In a indictable criminal case a WA judge must instruct the 12 jurors what evidence they are allowed to take into account

Question 25

How can decisions based on poor or incorrect evidence be accountable

Answer 25

Failure to apply the rules of evidence or charge a jury correctly may leas to an appeal

Question 26

Public Hearings

Answer 26

All court proceedings are open to the public and media with few exceptions. The media report the trial and members of the public may sit in the public viewing gallery

Question 27

Public hearings and accountability

Answer 27

Such openness ensures that thw public can have confidence in the admin of justice and the courts who administer it

Question 28

4 reasons for public confidence in the court

Answer 28

- Court can be relied upon ti make decisions based on law and evidence - People trust that courts are apolitical - Courts decisions follow strict doctrines, principles, rules and maxims developed over hundreds of years - They never have to appeal to populism to keep their jobs

Question 29

3 methods of external accountability

Answer 29

- Traditional acc: Seperation of pOWERS AND RULE OF LAW - Constitutional acc: process of removal - Modern acc: NSW judicial commission

Question 30

Parliamentary sov and acc

Answer 30

Statute law is superior to common law and p sov ensures that parliament may override common law sumply by passing a statute

Question 31

Abrogate common law

Answer 31

Parliament may step in at any time and abrogate a common law if it feels that the common law is developing in ways it wishes to check

Question 32

Eg of abrogate

Answer 32

The IPP report in 2002 found problems with court decisions in negligence cases. It was found that it was too easy for plantiffs to prove negligence and that damages awarded wer excessive. In response most state parliaments encated legislation to set limits on the amount of damages that were payable for negligence

Question 33

Mandatory sentencing

Answer 33

Force judges to jail offenders regardless of the seriousness of the crime and the circumstances. It strips the courts of their judicial discretion

Question 34

Four aims when sentencing

Answer 34

Rehab, retribution, deterrence and community protection

Question 35

discuss the four aims and mandatory sentencings effect

Answer 35

Judges seek to balance these four aims... and because every case is unique judges tailor sanctions carefully. Mandatory sentencing severely restrict the judges capacity to perform this function

Question 36

Why were mandatory sentencing laws put in place

Answer 36

Were a reaction by parliaments to community perception that courts were not sentencing harsh enough. Thus showing courts being held to account by parliament and people

Question 37

Explain the role of the AG

Answer 37

- Member of cabinet whos portolio responsibility is for the courts - Is involved in judical appointments - They must defend its ability to act independently

Question 38

Rule of law

Answer 38

The superiorioty of statute over common law and the principles of the rule of law require judges to apply statutes even if they conflict with common law precedents

Question 39

eg of rule of law

Answer 39

State criminal codes and sentenicng axts determine the min and max sentences allowed

Question 40

S72 acc

Answer 40

Both houses of parliament must approve of the removal of a judge but only the grounds of proved misbehaviour or incapacity

Question 41

Unclear Proved misbehavour or incapacity

Answer 41

The constitution does not specify what misbehaviour warrants a judges dismissal nor does it specifiy what medical conditions qualify as incapacity. It doesnt even define what proved means

Question 42

Why are the words unclear

Answer 42

Its deliberate and creates space for reflection and dount in the mind of those wishing to remove a judge. It makes it essential for debate in parliament to occur and the possibility for it to be appealed to the HC

Question 43

Eg of removal

Answer 43

Justice angelo vasta of the QLD supreme court was removed by the ql parliamentd following the Fitzgerald inquiry

Question 44

explain the vasta case

Answer 44

Vasra was accused of wrongdoing in relation to a company with which his family were associated. His wrongdoing which did not affect his decions in court was found to be misconduct and he was removed by Parliament

Question 45

Queensland AD Hoc Commission

Answer 45

In response to the Vasta criticism the QLD parliament passed a law enabling the official misconduct of the state criminal justice commission to investigate judicial officers if a complaint was received

Question 46

2 other acc mechanisms

Answer 46

Chief justices | Codes of conduct

Question 47

Chief Justices

Answer 47

Australia has nine major court hieracjies, at the top of each is a superior court headed by a CJ. The CJ has responsibility for monitioring the performance of judges within their area of responsibility and may counsel underperforming judges

Question 48

Codes of conduct

Answer 48

Are forms of volunary self accountability employed across several branches of the aus gov

Question 49

Codes of conduct in Judiciary

Answer 49

The Aus institute of judicial admin has been working towards a submission for adoption of codes of conduct by judges