Judicial Professional Development - Cultural Awareness or Knowing
Something About Everything
1 Among the papers with which you have been
supplied for this conference there is the usual collection of glossy
brochures.
One is entitled “Experience
Perth - a Holiday Planner for 2007”. Another is entitled “Winter Escapes - The Ultimate Guide to
Taking a
Break Close to Home”. There is a 13th Edition of the “Fremantle Book” and a photocopy of an article in the Weekend
Australian about West Australian winery restaurants.
Nestled modestly in this shiny eye candy are
two brochures of the
National
Judicial
College
of
Australia
. One sets out a “National Curriculum for
Professional Development for Australian Judicial Officers”. The other is a “Standard”
endorsed by Heads of Jurisdiction and various organisations of judges and
magistrates throughout
Australia
. These brochures offer a convenient summary of
the rationale, coverage and standards of professional development programs
supported
by the
National
Judicial
College for judicial officers in
Australia
.
2 The College is of course not the only supplier
of such programs in
Australia
. Nor, as I want to emphasise, are formal
judicial programs the only source of continuing professional development for
judges. There are programs conducted by
courts, sometimes in conjunction with the practicing profession and sometimes
with legal academics to keep judges up to date in areas of substantive law and
developments in procedure. In my own
Court
we have judges’ meetings twice a year, generally preceded by at least one
full day seminar on matters of substantive law or procedure.
One of our judges, Heerey J, a member of the
frighteningly named “Efficiency Working Party”, is planning a hypothetical
centred
on an imaginary piece of complex litigation which will precede our next
judges’ meeting and be designed to raise a variety of
issues such as excessive
discovery, overlong cross-examination, fractious litigants and difficult to
structure judgments.
It will be a way in
which our judges can exchange ideas based on their own experiences for dealing
with the sorts of issues
that arise in such cases. Less formally we are in the
process of devising a judges’ chat room on our intranet which can become
a
clearing house for exchange of ideas nationally, particularly in relation to
procedural and case management matters.
3 It is a theme of this presentation that ongoing
judicial professional development is not limited to matters of law and
procedure.
It encompasses formal and
informal mechanisms for widening or deepening the knowledge of judges in areas
outside the law
that are relevant to their work. As an example of a substantial initiative
outside areas of law and procedure my own Court will
be hosting a conference in
October in
Sydney
on the topic “Genes to Proteins – Proteomics in the Courts”. A similar conference entitled “Genetics in
the Courtroom”
was hosted in 2003 and presented by the Einstein Institute for
Science, Health and Courts, which is a
Washington
DC based institute for judicial
education in the sciences. The proposed
2007 conference will use Australian resources.
It will cover new discoveries in proteomics, new technologies and
methodologies, proteomics in plants and agriculture, genetic
and environmental
interactions and patent claims in this area. There will be hypotheticals with imaginary court scenarios, including
the use of expert witnesses.
4 Not all ongoing judicial professional
development has to involve a lot of resources or organisation. It can be done at a collegial
level through
informal discussions and interactions with both the profession and academia. One of my favourite ways of doing
this is the
twilight seminar. Judges, practitioners
and academics interested in a particular topic related to their area
of work
meet for a few drinks after work around a conference table while one of them
presents an informal paper. The seminar
generally runs from 5.30 to about 7pm. An important element of its organisation is to give everyone a glass of
wine before
it starts to loosen their tongues and enhance discussion.
5 At a somewhat more ambitious level there are, in
my opinion, opportunities for short term exchange of judges between State and
Territory jurisdictions with a view to creating amongst all judges a common
sense of membership of a national judiciary and
providing opportunities through
interaction with colleagues in other jurisdictions for deepening their
knowledge and experience.
In 2005 I
presented a paper at the National Colloquium of the Judicial Conference of
Australia on the topic of judicial exchange.
For my troubles I was asked to go to the
further trouble of devising a draft protocol between heads of jurisdiction for
short
term judicial exchange. A Steering
Committee has been set up and a draft protocol, after some delay, has been
prepared and
submitted to members of the Steering Committee. It tries to set a framework within which any
two or more courts can make an
arrangement for judicial exchange. It is designed to build in flexibility and to
allow for judicial exchange for professional
development purposes and also for
the purpose of assisting a host court to deal with a spiking workload or to
reduce a backlog
of cases. It would
accommodate horizontal exchange arrangements between courts of the States and
Territories, District and/or
County Courts and Magistrates Courts. The objectives of such exchanges, as set out
in the draft protocol are:
1. To promote the exchange of knowledge in
matters of law and practice so that Australian courts and judges
may learn in a
practical way from each other’s experience.
2. To promote innovation and best practice
throughout
Australia
in the administration of justice while maintaining the identity and distinctive
culture of each of the courts;
3. To assist in the ongoing professional
development of judges in their knowledge of the substantive law and
in the
efficient and economic administration of justice.
4. To create a mechanism for effective
allocation of judicial resources across jurisdictions in response to
short term
imbalances of needs and resources.
5. To reduce the need for courts to rely
upon acting short term appointments of persons not otherwise the
holders of
fulltime judicial appointments.
6. To foster an acceptance that all
Australian judges, whether they be members of State, Territory or Federal
Courts, are part of a national Australian judiciary.
7. To make judicial appointment to any of
Australia
’s
courts more attractive to qualified candidates for appointment.
6 Once the members of the Steering Committee have
had an opportunity to give feedback on the protocol, the revised draft will be
submitted to the Judicial Conference of Australia Council for its consideration
with a view to it recommending acceptance
by the Council of Chief
Justices.
7 What is important is that courts are supportive
of continuing professional development on all of these fronts. It is not only
important to the quality of
judging, it is also important to the quality of a judge’s work life and, in my
opinion, to morale
and efficiency.
8 Against the general background of the variety of
ways in which judicial professional development can occur, I would like to talk
about the concept of cultural awareness for judges, but in the broadest sense,
of our general knowledge of the society whose
laws we administer. That extends to a knowledge of the history
and workings of our public and private institutions. It involves
an awareness of the extent and
nature of social and cultural diversity. It involves an awareness of our cultural heritage, of
popular culture
and of the scientific and technological world view and methods of our
times. There are many important matters
of professional development including maintaining a general familiarity with
the substantive and procedural law, how to manage
cases and to control a court
and how to write clear and lucid judgments. It is our knowledge of our own culture which is indispensable
to good
quality decision-making and a rich overlap between life and work.
9 It is fashionable in debate about contemporary
social issues to speak of an “elephant in the room”. This is a metaphor for a
large, obvious and
potentially troublesome question which is fundamental to the debate and which
nobody wants to acknowledge.
The
“elephant in the room” in discussion about professional development for judges
is the question “What is it that judges
do?”. That is a question on which so much academic ink has been spilt and so
many forests felled, that its further discussion
requires carbon offsets. I drove from
Perth to Fremantle to be at this conference
today and I drove here in a Prius. This qualifies me to give some, albeit only
brief consideration, to the hard question at the threshold of our topic. One short apparently trite answer to the question
is
that judges hear and decide cases. Actually it is not as trite as it looks. Hearing and deciding is a function
sometimes
split, at least in part, between judge and jury. If I may digress, there are other ways in
which it can be split. In a fictitious
State
a long way from here, there were once two judges, Judge Short and Judge
Tall. I have changed their heights to
protect their identities. Judge Short
would leave no one in doubt about his views well before a case was
concluded. Judge
Tall, on the other
hand, would allow his judgment to mature
for a very considerable period after the case was heard before
delivering it. So it was said, unkindly at a robust Bar
Association roast, that Judge Short decided cases without hearing them
while
Judge Tall heard cases without deciding them.
10 That judges hear and decide cases tells us only
part of the story. The important part is
found in the mental processes that
lead to judgment. Let me take the simple case of a judge
sitting alone as trier of fact and law.
11 The legal education to which many of us were
exposed took, as its point of departure, a simple process of judicial reasoning.
The relevant rules of law to be applied are
identified. Facts are found. The rules of law are applied to the facts as
found.
A conclusion follows which is
expressed by way of a declaration or a distribution of rights or liabilities
including, in
criminal cases, the imposition of penalties. This process
is adequate to decide cases which concern factual questions and
the application
of laws expressed in words which bear their ordinary English meaning and
require straightforward factual
findings. The simple model, however, offers only a small safe harbour. Beyond that safe harbour there is an ocean of
statutory
and judge-made laws which involve normative and purposive judgments. Indeed they may be called micro-legislative.
12 Laws which use normative or purposive language do
not have any precise meaning waiting to be applied to a factual situation.
An example with which everyone is familiar is
the idea of reasonableness, described by Sir Victor Windeyer as “… a concept
deeply rooted in the common law” Reasonableness, unconscionableness,
good faith, foreseeability and many other words of similar
character are
applied by judges every day. They confer
functions on the courts rather than simply identifying rules to be
applied to
facts. The functions they conferred were
described by the late Professor Julius Stone thus:
When courts are required to
apply such standards as fairness, reasonableness and non-arbitrariness,
conscionableness, clean
hands, just cause or excuse, sufficient cause, due
care, adequacy or hardship, then judgment cannot turn on logical formulation
and deduction but must include a decision as to what justice requires in the
context of the instant case. This is
recognised,
indeed as to many equitable standards, and also as to such notorious
common law standards as “reasonableness”. They are predicated
on fact-value complexes not on mere facts.
The more we look
to the law in our jurisdictions, the more examples we can find of cases in
which we are either called upon
to apply such standards ourselves or to direct
juries on how to apply them.
13 In carrying out these functions of evaluative or
purposive judgments the judge needs to be informed by at least a general
knowledge of contemporary culture in all its complexity, including scientific
method. In particular cases the court will require
the assistance of expert
evidence on technical, scientific, medical or psychological questions. But relevant background knowledge
can
facilitate the judge’s understanding of such evidence and his or her ability to
evaluate it. It may also improve the
capacity of a judge sitting with a jury to communicate with the jury about such
matters and properly to relate them to the
legal issues in a case. The already difficult process of making
purposive or evaluative decisions about issues outside ordinary
experience will
be made more difficult without some relevant background. The broadening and deepening of our cultural
awareness
in this wide sense is a part of judicial professional
development. It is perhaps helpful to
refer to some concrete examples.
14 One of the most ordinary of legal words is the
word “ordinary”. It lies at the heart of
the concept of provocation. Under
the
Western Australian Criminal Code, provocation is any wrongful act or insult of such
a nature as to be likely, when done
to an ordinary person, to deprive him or
her of the power of self control. In standard directions it is acknowledged
that
conduct which might not be insulting or hurtful to one person, might be
extremely so to another because of that person’s age,
sex, race, ethnicity,
physical features, personal attributes, personal relationships or past history.
15 It may be that there are particular
characteristics of a person relevant to provocation which are outside the life
experience
of many judges. Take so
called “battered wife syndrome” which was considered by the High Court in Osland v R (1998) 197 CLR 316. At trial, evidence was led without objection
from a psychologist about characteristic patterns of behaviour
in relationships
involving physical, psychological or sexual abuse and the characteristic
reactions of women in such relationships.
In discussing the admissibility of such evidence and its relevance to
the defence of provocation, Gaudron and Gummow JJ said
(at [55]):
Quite apart from reactions
bearing on the truthfulness of an accused person’s account of an abusive
relationship, the ordinary
person is not likely to be aware of the heightened
arousal or awareness of danger which may be experienced by battered women.
And that is a matter that may bear directly
on the defence of provocation. An act
“which might not be insulting or hurtful
to one person might be extremely so to
another because of that person’s …
personal relationships or past history”,[] including,
of course, a history of abuse by
the deceased. It does not require expert
evidence for a jury to understand that some slight
insult may, in context,
constitute “the last straw”, a consideration addressed in the summing up in
this case. However,
there may be cases
in which a matter of apparently slight significance is properly to be regarded
as evidence of provocation
when considered in light of expert evidence as to
the battered woman’s heightened arousal or awareness of danger. And evidence
of that may also be relevant to
the gravity of the provocation, as may the history of the abusive relationship.
16 There is always a risk that evidence of that
kind heard for the first time may not be fully understood by judge or jury or
may not be adequately explained to the jury. It is quite appropriate as an aspect of the professional development of
judges
in jurisdictions where such questions may arise to be informed or to
acquire through their own reading an awareness of the existence
of the relevant
body of psychological knowledge and its general content. That awareness is not a substitute for expert
evidence
where expert evidence is necessary. It facilitates the understanding of such evidence and the way in which
it should inform
the making of the essentially normative judgment about the
reaction of an ordinary person in extraordinary circumstances.
17 The normative character of the judgment required
in applying the provocation defence was indicated by the High Court in Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
when it described the purpose of the ordinary person test (at 327):
…to provide an objective and
uniform standard of the minimum powers of self-control which must be observed
before one enters
the area in which provocation can reduce what would otherwise
be murder to manslaughter. While
personal characteristics
or attributes of the particular accused may be taken
into account for the purpose of understanding the implications and assessing
the gravity of the wrongful act or insult, the ultimate question posed by the
threshold objective test … relates to the possible
effect of the wrongful act
or insult, so understood and assessed, upon the power of self-control of a
truly hypothetical
“ordinary person”.
18 In Green v
The Queen (1997) 191 CLR 334 the question was whether the accused’s
personal history which included knowledge of his own father’s sexual
abuse of
his sisters, was able to be taken into account in determining whether
homosexual advances made to him could constitute
provocation. While there was no suggestion in that case
that the issue required the aid of expert evidence, the fact situation
and
background of the accused would fall well beyond the experience of most, if not
all, judges. The normative construction
of the hypothetical “ordinary person” in such a case might well be assisted by
some general background knowledge about the
emotional and psychological impact
of a history of intrafamilial child abuse.
19 On a somewhat wider canvas similar issues arise
in relation to particular cultures within our society. It has been accepted for
some years that
cultural awareness training of judicial officers in relation to Aboriginal
people is a useful means of equipping
those officers to better decide cases and
better deal with Aboriginal witnesses and parties.
20 The great impetus for such training came from
Recommendation 96 on the Royal Commission into Aboriginal Deaths in Custody
1990-2000. Recommendation 96 provided:
That judicial officers and
persons who work in the court service and in the probation and parole services
whose duties bring
them into contact with Aboriginal people be encouraged to
participate in an appropriate training and development program, designed
to
explain contemporary Aboriginal society, customs and traditions. Such programs should emphasise the historical
and social
factors which contribute to the disadvantaged position of many
Aboriginal people today and to the nature of relations between
Aboriginal and
non-Aboriginal communities today. The
Commission further recommends that such persons should wherever possible
participate in discussion with members of the Aboriginal community in an
informal way in order to improve cross-cultural
understanding.
21 In implementing that proposal the Commonwealth
Attorney-General entered into an agreement with the Australian Institute of
Judicial Administration (AIJA) under which it received funding to facilitate
the delivery of cultural awareness programs to
the judiciary. A National Aboriginal Cultural Awareness
Committee of the AIJA was formed and initially convened by Justice Paul
Seaman. The Committee continues in existence today
under the name National Indigenous Cultural Awareness Committee, now convened
by Judge Mary Ann Yeats of the District Court of Western Australia. During its existence the Committee has been
responsible
for approving funding for Aboriginal cultural awareness programs
conducted with judicial officers throughout
Australia
. In that aspect of its activities it has now been
superseded by the creation of a National Indigenous Justice Issues Committee
as
a Committee of the
National
Judicial
College. The College has been provided with funding of
$500,000 from the Commonwealth over a period of four years for the
purpose of
cultural awareness programs. The object
of the Committee is to prepare a curriculum setting a framework within
which
State and Territory based committees can formulate proposals for funding for
activities within those States or Territories.
A draft curriculum has been prepared and is
being circulated to State committees through their Chief Justices.
22 The National Cultural Awareness Committee has
also developed an Aboriginal Benchbook for Western Australian courts which was
launched in July 2000. The Benchbook is
presently being revised and updated.
23 Aboriginal people may appear before the courts
in criminal matters as the accused, as witnesses or as convicted persons
subject
to sentencing. Cultural
awareness training does not provide an alternative to evidence. Rather it better equips the judicial
officer
to understand the significance of particular evidence or the way in which it is
given. This is relevant not only
to
trials but also to the sentencing process.
24 Cultural awareness training may also cover
ethnic minorities. An understanding of the recent history of the country of
origin
of such persons and the nature of their family structures and
relationships can be used to better understand their evidence and
their
behaviours in both civil and criminal proceedings. My own experience and that of many Federal Court
judges, is that
the problem of understanding evidence and submissions and of communicating
with litigants is particularly acute in the case of
unrepresented, non-English
speakers who can only communicate through an interpreter. We have had direct experience of this kind
of
case in judicial review applications by asylum seekers. While a funded legal assistance scheme of
sorts, using migration
agents, has been made available to asylum seekers up to
the level of the Refugee Review Tribunal (RRT), such funding does not
exist in
relation to judicial review challenges to the decision of the RRT. Typically, the route followed by a person
seeking
a protection visa begins with a refusal by a delegate of the Minister. Administrative review is then sought before
the RRT.
If that application fails there
is then an application for judicial review to the Federal Magistrates Court or
to the Federal
Court. Judicial review is
only available for jurisdictional error. Broadly speaking that may be characterised as an error which
results in
the impugned decision being treated as beyond power. If the original judicial review application
is heard before
a federal judge, it may then be appealed to a
Full Court by
either the Minister or the applicant. The ultimate resort is special leave to appeal to the High Court. Generally
speaking, legal representation is
only available on a pro bono basis in the judicial review phase of that
process. In dealing
with such cases it
has frequently been necessary for judges of the Court to endeavour to explain
the limitations of the process
in plain English through an interpreter to an
asylum seeker to whom our judicial and broader culture is quite alien. I had had
the advantage of five years as
President of the National Native Title Tribunal in the course of which I learnt
by painful
trial and error some of the techniques of speaking in plain, rather
than what is sometimes called High English. That requires
communication in terms, which as far as possible, do not
take for granted background knowledge by the other person of legal
concepts. In my opinion there is much to
be said for communication training for judges in this area. I note that the National
Curriculum includes
a module which covers communication in court, interpreters in court and
equality and diversity.
25 Beyond the challenges of cultural diversity the
development of an understanding of the world view and methods of science and
technology is indispensable to a proper appreciation of expert evidence which
appears so much more frequently in both civil
and criminal courts today. Normative judgments of reasonableness and the
like which turn in part upon issues of scientific or
technical fact are likely
to be enhanced by at least a background understanding of scientific method and
basic scientific
literacy. For judges
hearing medical negligence cases which may turn on expert evidence relating to
the reasonableness of
certain procedures or investigations, a background
knowledge of medical techniques could well be helpful in better understanding
the evidence and in assessing the reasonableness of the defendant.
26 Intellectual property law involves evaluative
and purposive assessments of claimed advances in science and technology. For a
patent to be valid the invention it
claims must involve an inventive step when compared with the prior art
base. Section
7(2)of the Patents Act 1990 (Cth) has the effect
that a claimed invention lacks an inventive step if “the invention would have
been obvious to a person
skilled in the relevant art in the light of the common
general knowledge as it existed in the patent area before the priority
date of
the relevant claim”. The judgment to be
made by the Court is what would have been obvious to a hypothetical
non-inventive worker in the field in the light of common general knowledge at
the time of the alleged invention. To
make
it more difficult, particularly in the biotechnology area, the
hypothetical skilled but unimaginative worker would probably have
a PhD. The problem is nicely illustrated by the
challenge to the validity of the Viagra patent in the Full Court of the Federal
Court in 2005. The search for a treatment for male erectile
dysfunction involved finding a drug which would promote relaxation
of smooth
muscle cells in the penis without relaxing smooth muscle cells elsewhere in the
body, such as the lung or heart
or retinal tissue, and killing the patient or
making him go blind. Getting in the way
of muscle relaxation in the penile
tissue of men suffering from erectile
dysfunction was a chemical known as Phosphodiesterase 5. The highest point of relevant
knowledge prior
to discovery of the development of Viagra involved an experiment in which
strips of penile tissue had been
taken from 21 men who had been treated by
prosthesis for impotence. These strips
were mounted in organ bath chambers with
fine wires attached to them and
connected to equipment which would measure their relaxation in response to
various chemicals
to which they were exposed. It was found that the addition of a particular kind of inhibitor
augmented relaxant responses which
were elicited by electrical field
stimulation. The electrical field
stimulation was a surrogate for the arousal process.
The question was whether the publication of
the article describing this experiment made the development of Viagra an
obvious
or routine step.
27 In the event the Full Court found that the
development was not obvious and that the patent could not be invalidated on
that
basis. One of the claims was
invalidated on another basis to do with the width of the claim. In that case we came to the scientific
background cold. We were provided by
counsel with scientific primers and given Power Point presentations. The scientific
primers were by way of
background reading which enabled us to better understand the evidence at
trial. Here we were applying
a broad
evaluative judgment of obviousness by reference to a hypothetical person into a
complex chronology of scientific
development. Quite apart from the assistance which we were given by counsel in
acquiring a background understanding, a general
appreciation of scientific
method and the ability to read at least the summary and conclusions in
scientific papers was of
great assistance in better appreciating the evidence
in that case.
28 There are many scientific technical and medical
questions with which judges of the District Court and County Courts are
confronted
in their day to day work. There seems to be an increased emphasis on forensic scientific evidence. This emphasis and the so-called
CSI
expectations of juries require a strong appreciation by judges of the benefits
and the limitations of scientific evidence.
That appreciation is also necessary in the application of the kinds of
broad evaluative and purposive judgments which much judicial
decision-making
now requires. That appreciation may be
acquired to some extent through repeatedly hearing experts testifying
about
such matters. But that process tends to
be episodic and confined by the issues in particular cases. It is not a substitute
for general background
awareness of the relevant areas of science, technology, medicine, psychiatry
and the social sciences
relevant to the work of the courts. Professional
development requires development in this area as an aspect of wider cultural
awareness. There is a variety of ways of doing
that. Not all of them require
significant resources or organisation. What
all of them do offer is a considerable enrichment in the quality of
our work and our lives.
