CRAWFORD CJ’S ADDRESS AT CEREMONIAL SITTING TO MARK HIS APPOINTMENT ON 24 APRIL 2008
I specially welcome to the Court His Excellency the Governor and Mrs Underwood, and the other two of the last three Chief Justices of the Court, Sir Guy Green and Mr William Cox. Your continuing support for the Court by attending occasions such as this sitting is deeply appreciated. I hope that my list is correct when also I welcome the Attorney-General, the Lord Mayor, members of the Magistracy, the Solicitor General, the Crown Solicitor, the Director of Public Prosecutions and Professor Warner from the Law Faculty. I feel honoured by the presence of all who are here, including members of the legal profession, members of both present and past court staff, including a number who are close to me in my day to day work, departmental officers and of course, a small band of family and close friends. I extend to my wife, Bobby, not only my thanks for her attendance today but also for the undoubted fact that without her at my side, I would not be sitting here.
Mr Attorney, I feel particularly honoured by your attendance today and your address. I hope you felt at home in your new capacity which, in accordance with tradition, is that of leader of the Bar. I thank you, as I do Mr Schyvens and Mr Fairley, for your kind words.
I am conscious that after 35 years, my appointment has interrupted the selection of chief justices from the 1960-year of law graduates. I assure you that there is no risk that those from the 1964-year will hold the office for the next 35 years. I think my memory is correct when I say that I am the last of the graduates from that year still standing as a working lawyer.
I must say that I never expected to be appointed a judge and certainly not Chief Justice and I feel therefore that I can speak with some authority when I say that there is much more pleasure in gaining a promotion that is not expected, than not gaining one that is.
I first became a student of the law in 1959 and by the time I was admitted as a lawyer, thought I knew a fair bit of law. But I had to send my first client away so that I could ask someone for help with my advice and I gave the wrong advice to my second client and had him return to put him straight, which did not impress him at all. Over the 44 years since then my professional life has continued to be a learning experience. Yes, some cases I hear, such as run of the mill criminal cases, are no longer challenging. But it may or may not be surprising for non-lawyers to know that all of those who work in the law are ignorant about a great deal of it and we continue to learn until the end of our working lives. In my case the need for continual learning is partly accounted for by my tendency to forget much of what I learned in the past, but it is that continual learning experience that maintains the enjoyment of work for many lawyers and causes some judges to delay their retirement.
I worked for the Court as a judge’s associate when Sir Stanley Burbury was Chief Justice and I appeared before him a number of times after I was admitted. I recall one early case that is memorable for me, in which I discovered upon reading Sir Stanley’s reasons for judgment, that he had understood not one jot of my submissions. It was as if he had written reasons for a case totally unrelated to the one in which I had appeared. My immediate reaction was that his Honour should have taken more care when considering counsel’s argument. However, eventually it proved to be a wonderful lesson for me, and I resolved that such an experience would never happen again.
During my time as a judge I have been fortunate to work under the three chief justices who followed Sir Stanley. All of them led the Court with distinction and I believe that I have learned much from their example over my 20 years on the bench. I am very conscious of the need to emulate them so far as standards of performance are concerned. That does not mean that things will be the same. They never are.
There is one possible change that I should mention to you now. The Premier has supported my proposal, having regard to my place of residence, that the Principal Registry of the Court should move to Launceston. The only condition he has put on the move, in the interests of balancing the rights of all Tasmanians to share the benefits of government decisions, is that the Hawthorn Football Club should move its base from Aurora Stadium to the Bellerive oval. I have informed the Premier that I have no difficulty with that, given my support for the Sydney Swans. However, realistically, I think it is unlikely that a further announcement about a move north will be made in the future.
I once had an uncle who emphatically made it clear to me that the law was an ass. What he meant by “the law”, and who was to blame for its asinine tendencies, was not always clear. He was certainly not talking about the law that was defined for me by Henry Finlay in the course of studying jurisprudence when at university. To my uncle it meant all sorts of things. He may have been complaining about a statement attributed to a judicial officer in a newspaper, or a judicial decision, perhaps a sentence imposed against an offender. But equally, he may have been referring to a decision by police to prosecute someone for what he perceived to be a trivial offence; or it might have arisen out of the fact that some well known offender had absconded; or it might have been some piece of black letter law with which he did not agree; or it might have been the outcome of a particular case which, in his mind, was plainly wrong, even though he had not been present in the court when the case was heard. Frequently, just what ‘the law’ is in the statement that it is an ass, is difficult to ascertain, but it is an easy statement to make.
All of the judges of the Court believe that their work involves the performance of considerable public responsibilities. We determine with as much effort and learning as we can muster the facts in each case, in accordance with the evidence, and also the meaning of laws. We seek to ensure that justice is done between individual litigants by making decisions in accordance with the law. We dedicate our professional lives to preserving the rule of law, and I think we have every justification to be proud of our dedication.
And yet criticism of what we do and how we do it is not infrequent. Some of that criticism is well founded, of course. Some of it is understandable because after all, much of what judges do involves the formation of opinions and the making of judgments, and it is not only judges who are capable of doing such things. All people are.
However, a significant body of criticism seems to arise because the critic does not understand, and certainly does not acknowledge, the processes in accordance with which courts must operate, and the principles that support those processes. We believe that justice must be done, but we also believe that it must be done only in accordance with the law. Critics also believe that justice must be done, but more often than not it is only the achievement of outcomes satisfactory to them or their feelings, that qualify as justice. Too often they have no understanding, or they do not stop to think, that the processes by which the outcomes of cases are achieved are more important to a free and just society than the outcome of an individual case.
Typical examples of what I am saying are easily found. I refer only to two that occurred in the last week. There was a newspaper report of concern expressed over the release on bail of a person who had been charged with a serious crime of violence. It was a disgrace that a guilty person could be set free so quickly by a court. Sadly, but it is of no surprise to us, there was no mention in the report of the legal principles that would have been applied by the court when deciding to grant bail, the main ones being the presumption that the person charged was innocent and the likelihood that he would answer bail if released. Also not to be ignored was the undoubted fact that if he is found to be guilty eventually, he will spend the same time in prison as he would have done if not granted bail, so that justice will eventually be done from everyone’s viewpoint. The whole tenor of the report was that the man was guilty and should be imprisoned immediately without waiting for a trial. Proper legal process was irrelevant.
My other example is an article in a major Sydney newspaper. It concerned what was said to have been excessively long cross-examination of a 17 year old complainant in a rape case. I will assume that it was excessively long, it may well have been, and I will not seek to defend it. Counsel for a man who had been found not guilty in that case had sought to justify the cross-examination because, he argued, it led to the acquittal of an innocent person. The article lambasted the counsel and lawyers in general. It asserted that the acquitted man was not in fact innocent because he had committed crimes in the past, he was still to face other charges and he had only avoided conviction in the case in question because there was no independent corroborating evidence to support the complainant’s allegations against him. In other words, in the mind of the author, acquittal had only come about because the evidence did not prove guilt, but he was guilty nevertheless. It is obvious that justice in accordance with the law was offensive to the author. He attacked counsel for having the temerity to put to the complainant in cross-examination that she was confused or inventing her evidence. In doing so he showed his ignorance of the rule that imposes on counsel a positive duty to put to a witness the client’s case so as to give the witness the opportunity to respond to it and the Crown to meet it.
Such examples occur frequently. When they do, most lawyers just sigh and get on with their work. Occasionally one of us will speak out but we wonder whether the message is being received where it should. I have taken advantage of this occasion to speak out. That is not surprising. Judges do not have many opportunities when it is appropriate to do so.
The nature of the work of the Court has constantly changed over the decades. In the immediately preceding years, the last three or four, the volume of civil work has diminished substantially. The civil trial is becoming a rarity. I do not think that I have presided over the trial of a civil action, or assessed damages in one, for at least two years, possibly longer. Fifteen years ago it was a regular feature of judicial work.
The reasons for the change probably do not matter much to the Court. It serves those who come before it, not those who do not do so. A substantial part of the decrease has come about because of legislation, throughout the country, that has imposed a severe break on claims for damages for personal injuries. I suspect that another reason arises out of the fact that economic times are good, and when they are there is a tendency in business to pay up or settle and move on, rather than find a reason not to pay or delay payment.
One outcome has been the abandonment of dedicated civil sittings in Launceston and Burnie. Instead, we send judges north when there are cases ready for hearing. As a general rule, civil cases are heard promptly by the Court.
On the other hand, the same cannot be said of the criminal lists. They have been of concern for some years. When I first became a judge, the lists were small and trials were often being conducted within six or seven months of the alleged crime. Today it is common place for the lists to be far too long and for trials to take place up to two years or more after the alleged crime. Whereas I once had pride in the shortness of the lists and our achievements in disposing of criminal cases promptly, that is no longer the case.
No doubt the reasons are complex. In part they include the time it takes for police to complete their investigations and the preparation of files for the office of the Director of Public Prosecutions and for the Director’s officers, in turn, to prepare indictments and have the cases ready for trial. I have no doubt that the difficulty they both have is brought about, at least in part, by a shortage of resources and manpower, and that it is compounded by the practice of some defence lawyers to delay the making of a decision by their clients whether to plead guilty until a complete file of papers has been made available to them. At times it seems to me that they use it as an excuse not to have to attend to their client’s case. I hope I am wrong.
In any event I give notice that the Court will make available a significantly greater number of days for the criminal jurisdiction. I am hopeful that the lists will be reduced and that delays will also lessen. There are some indications that lists are shortening. That may also be a result of good economic times and relatively full employment leading to a reduction in crimes of dishonesty. Recently the new system of criminal case management was introduced to improve the situation. The judges intend to do what they can to see that the system achieves its purpose, but I emphasise that cooperation between police, lawyers and the Court is essential to success. I am also conscious that whether the Director will be able to utilise the extra judicial time that will be available, may depend on his office’s resources and capacities, such as the number of counsel available to him.
I look forward to meeting the challenge of my office over the next few years. I am grateful for the opportunity to do so and to serve the Court and the people of Tasmania in a new role.
I thank you all for your attendance. The Court will adjourn.