The 2007 criminal case of R v Niehus, criticism of a District Court Judge Marie Shaw by State Upper House Member of Parliament Dennis Hood.
Is Judicial Independence jeopardised by State Members of Parliament who publicly criticise the sentencing handed by Criminal Court Judges?
Judicial Independence is crucial to the operation of a democratic society, leaving little debate that an independent judiciary is the “fragile bastion” in our democratic system of government. Thus judges, when presiding over cases, are entirely free from any intrusion or intimidation executed by external forces.
The Westminster System, implemented from Britain, ensures the courts have the confidence of the community and all cases provide an outcome exclusively on merit, as Michael O’Connell, Victims of Crime Commissioner (Appendix 3) states: “The Judiciary shall decide matters due to impartiality on the basis of facts.”
However, questions have been raised whether judicial independence is jeopardised by external forces publicly criticising a judge’s verdict. One such example occurred when State Upper House Member of Parliament, Dennis Hood, publicly attacked District court Judge Marie Shaw’s final ruling in the 2007 criminal case of R v Niehus, prompting an order for her dismissal.
David Swain, Retired Chief Magistrate (Appendix 2) reports, “Judicial Independence is a vital part of the Westminster System.” To guarantee absolute judicial independence and uphold the confidence of the community, the judiciary must have complete separation from both the Legislative and Executive arms of Government, and any other external political forces. Accomplishment of this is achieved in a number of ways; first, Judges are appointed by the Executive arm and dismissed by the Legislative arm, to avert the chance of one arm of Government grasping complete control over the judiciary and Section 72 of “The Australian Constitution Act” (1900) specifies the dismissal of a judge can only occur on two grounds; misbehaviour and incapacity.
Secondly, a permanent tenure is provided, on the grounds a judge must retire at the age of 70, with the exception of Family Court Justices, who have an obligation to retire at 65. This assures judges cannot be removed if their decision does not support the government’s request, as Peter Hasket, Retired Magistrate (Appendix 4) states, “Even if a number of people don’t want them, their position stays the same.” Thirdly, a fixed remuneration is guaranteed, preventing both salaries from being diminished throughout tenure and manipulation occurring. However, salaries can be increased by government on objective factors.
Fourthly, judges are ensured judicial privilege, allowing them to have freedom of speech while presiding on the bench and delivering verdicts. Thus judges cannot be threatened by criminal prosecution or sued for vilification, a fact David Swain (Appendix 2) suggested “one can take comfort in.” Finally, individuals who are selected for judicial office must have suitable training and credentials in the law, and no discrimination is to occur on the basis of sex, colour, race, status, religion or political influence.
The Honourable Justice John Basten- Judge of the Supreme Court New South Wales (2005:1) reports, “Principles of open justice play an important part of our courts.” Justice is governed in an open court, where the public has complete access, although exceptions occur, for example, courtrooms can only provide for a small number of spectators. Furthermore, for those who do not attend, sentencing remarks are available via the Internet, and significant cases are usually covered in the print and electronic media.
This then ensures openness, as it is vital in promoting the public’s confidence. However, information handed to the public via the media raises questions to the extent of its reliability. David Swain (Appendix 2) reports, “99% of all cases, which go through the courts don’t get any media attention.” This indicates that the media has one priority, which is to attract public attention and have general appeal, in order to sell papers. As well as this, The Honourable Justice John Basten (2005:1) states, “reporters who cover trials often move from one court room to another during the course of a day, obtaining only an incomplete picture of what is happening in any particular case.”
Along with media attention, public criticism is also created. “Sentencing reflects the views of the community, because in effect, they are prescribing parliament’s will,” states Michael O’Connell (Appendix 3). However, it is impossible to please all citizens, thus generating criticism of certain cases, usually through the media. A recent significant case, which generated much public criticism and uproar, was the 2007 criminal case of R Vs Niehus, ruled by District Court Judge Marie Shaw. Dennis Hood, publicly attacked her final ruling, and called for her removal due to the leniency of her suspended sentence. Dennis Hood (2007:1) questioned, “What possible reason can there be to allow Judge Shaw to continue to hear cases and hand down grossly inadequate sentences to hardened criminals?”
Christopher Michael Niehus received a three-year suspended jail sentence, upon the condition that he entered a bond of $400 to uphold good behaviour for a two year period and perform 150 hours of community service, in respect of four counts of unlawful sexual intercourse. Marie Shaw (2007:3) states, “the matters which favour suspension to which your counsel has referred, are that you are a person of previous good character, you are someone who, both before these offences and subsequently, has engaged in age appropriate relationships.
In my view, you are unlikely to offend again.” Marie Shaw’s position as District Court Judge, entitles her to consider all facts and circumstances and provide an outcome exclusively on merit, which she has confidently done. However, Dennis Hood completely disagreed with Marie Shaw’s suspended sentence, complaining to the media that, “abusing a young girl, a 14-year-old girl” resulted in “a sentence of 150 hours of community service.” Denis Hood’s actions of publicly calling for Marie Shaw to be dismissed raised the question to the extent of criticism, which should be allowed without the risk of jeopardising Judicial Independence. David Swain (Appendix 2) states, “Every now and again one or two people, particularly politicians, turn to their favour, and politically ‘go too far,’ which can arguably be an attack on independence.”
Beneficial criticism of the Judiciary is welcomed and appropriate as it allows public scrutiny and maintains the confidence of the community through integrity. As well as this freedom of speech in our democracy is a fundamental right. Nevertheless, as Michael O’Connell (Appendix 3) states, “the criticism, as in any situation, should focus on the issue, not the individual,” Denis Hood’s public ‘out-burst,’ was directly aimed at Judge Marie Shaw, ultimately causing considerable distress and embarrassment, Marie Shaw (2007:1) states,” I was bitterly disappointed that he attacked my fitness for office on the basis of inaccurate statements.”
Soon after Dennis Hood’s public ‘outburst,’ leading judges raised alarms that Judicial Independence was under fire. Chief Justice John Doyle and Chief Judge Terry Worthington stated, “Mr Hood’s push for her removal is contrary to constitutional principle and threatens to undermine the judiciary’s independence, also that any attempt to remove a judge could lead to inappropriate pressure on judges to operate in a way acceptable to politicians and any threat to remove a judge from office because of criticism of a judge’s decision sets a dangerous precedent and who will be threatened next?”
Despite maintaining the integrity of its independence, the judiciary understands it will never be immune from public criticism, as it is an essential component of our democratic system of government. David Swain (Appendix 2) states, “The judiciary is in the same position as any other public institution. It must expect, and should be prepared to deal with, criticism.” However, reforms need to be made in Marie Shaw’s case, where public criticism was undoubtedly incorrect and taken to a level, which may have jeopardised her independence.
Any public criticism, of any arm of government, should always be of benefit to that arm of government. The criticism must purely be aimed at the issues involved and never a direct attack on an individual. In regards to certain views of ‘soft sentences,’ by politicians as such, the official method of parliamentary review should be employed, not via media outlets. As well as this Michael O’Connell (Appendix 3) states, “(I) rely on victims’ views. In general, victims who contact me feel that the sentence imposed was too lenient- in other words, they expected a harsher sentence.”
I am confident that the question posed: ‘Is Judicial Independence jeopardised by State Members of Parliament who publicly criticise the sentencing handed by criminal court judges?’ can be answered in the negative. Dennis Hood’s public ‘outburst,’ was certainly demoralising for Her Honour Judge Shaw, which moved Hood to apologise and retract his statements. Dennis Hood stated in his public apology, “I recognise that by making these assertions I have caused considerable distress and embarrassment to Judge Shaw.” Although the criticism was unjust, Michael O’Connell (Appendix 3) reports, “it will not affect the general sentencing practices.” Our Attorney-General often comments that, “courts in common law countries have been independent of the Parliament since the 1600’s.”
Our current sentencing system works effectively in Australia. There should be no need to make any reforms to the current system as any changes may in fact place the community’s trust in the overall system at risk. Our current judicial practices must be preserved to ensure that judges and the overall judicial system are preserved and the so called “Fragile Bastion” is at all times protected.
Judges are accountable for their overall actions and the decisions that they make. The issue is that parliamentarians need to be careful that when criticising judges it is done lawfully. As it was clearly stated by David Swain (Appendix 2), “The sentencing process is conducted in a manner that does reflect the values, morals and concerns of the community.” We need to trust in our current structures of being able to maintain Judicial Independence and preserve the community’s confidence in the legal system.
- 22/11/2007, ‘Remove judge, urges Upper House MP’, ABC News, viewed 24/04/2008 http://www.abc.net.au/news/stories/2007/11/22/2098109.htm
- Bailey, Geoff, ‘Legal Studies Key Ideas Stage 2′, Adelaide, 2006
- Bash, Barbara, ‘Legal Studies Essentials SACE 2′, Adelaide Tuition Centre 2008
- Basten, John 2005, ‘Court and Media Relationships’, viewed 26th April 2008, http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/11_sc.nsf/pages/SCO_basten301005
- Dowdell, Andrew, Henderson, Nick, 23/11/2007, ‘Attorney-General, rejected calls to sack District Court Judge’, ABC News, viewed 23/04/2008 http://www.news.com.au/adelaidenow/story/0,22606,22803291-5006301,00.html
- Doyle, John, 22/08/2003, ‘Judicial Independence and the Separation of Powers’, viewed 15/05/2008, http://netk.net.au/SA/SA16.asp#TopOfPage
- Hasket, Peter, 13/05/2008, Notes from interview
- Hood, Denis, 05/05/2008, Notes from interview
- ‘Judicial Sentencing’, 22nd November 2007, Extract from the Legislative Council Hansard, viewed ’10th May 2008
- O’Connell, Michael, 08/05/2008, Notes from interview
- Shaw, Marie, ‘R v Christopher Michael Niehus Sentencing Remarks’, District Court, Adelaide, 2007
- Swain, David, 06/05/2008, Notes from interview
- Swain, David, ‘Are Judges Truly Independent?’, viewed 6th May 2008
- Swain, David, ‘Do Sentencing Laws Reflect Community Attitudes and Values’, viewed 6th May 2008