Court Observation Assignment PDF

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An assignment which has been conducted every semester since the commencement of this subject. The assignment involves analysing several components of civil procedure as observed in a courtroom environment.
Received a distinction for this assessment....

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Jeremy Bodon | 4366 1602

Judicial demeanour and court architecture are fundamental aspects of criminal process that help shape the structure and essence of criminal process in New South Wales. The aforementioned processes have been observed through visits to Burwood Local Court, with this essay seeking to assess the impact of these processes holistically with regard to criminal procedure, placing particular emphasis on procedures observed in the local court.

Judicial demeanour is often said to be characterised by impartiality and neutrality, with judges required to be ‘mechanical’ and ‘detached’ in the administration of justice.1 This correlates a legal positivist view on judicial demeanour, which advocates the need for judges to serve as actors behaving according to pre-existing rules or laws.2 However, upon observation of judicial demeanour in practice, I found it probable that certain judges have certain preconceived ideologies and beliefs that may influence the judge’s conscious or subconscious decision-making and thought processes. This predisposition is inherent in all of humanity, in that people, regardless of their status or position, will have beliefs and tendencies that are deep seated in their personalities and belief systems. In my view, this was evident in several cases, wherein judicial bias was evident, through either inconsistent reasoning and demands that favoured a certain party, or through making unreasonable or illogical inferences and statements that were not particularly associated with what had been presented in the case, but were rather a product of the judge’s skewed interpretation which may (or may not) have been resultant of the judge’s predispositions.

Nevertheless, authoritative judicial demeanour which may seem unreasonably harsh is obviously necessary in a large majority of situations. Regardless, abuse of power may 1 Jeffrey Shaman, ‘The Impartial Judge: Detachment or Passion?’ (1996) 45 DePaul Law Review 605. 2 Kathy Mack and Sharyn Roach Anleu, ‘Performing Impartiality: Judicial Demanor and Legitimacy’ (2010) 35 Law & Social Inquiry 137.

Jeremy Bodon | 4366 1602

perpetuate with judges in certain instances theoretically being humane, and as such, may inherently form subjective opinions that they may deem as objective. This may lead to an incorrect interpretation of facts, or may lead to partial judicial demeanour. The latter was exemplified in the case of R v Fahad Bin Qayyum Khan, 3 whereby the magistrate, in my opinion, unfairly condemned only the defence concerning their sequence of questioning, despite the prosecutor invoking similar, if not more off-topic lines of questioning than which the defence was reprimanded for. The judge then alluded to the defence lawyer’s history of similar misdemeanours. I took this as the judge having a preconceived idea of legal personnel’s behaviour, which may ultimately influence the outcome of a case. Although authoritative demeanour of this ilk may be necessary to ensure that legal personnel act in accordance with courtroom requirements, some judges may unfairly mistreat participants in a case, which will be in breach of a judge’s requirement to stay emotionally detached and mechanical in their utilisation of discretion.4 Any disparities in the treatment of parties or individuals in the same legal case will void arguments of legal positivism, whilst constituting a breach of duties of judicial officers. These duties are outlined in the Guide to Judicial Conduct,5 with inherent subjectivity being in particular breach with regards to judicial requirements for impartiality.

Although the above argument is purely observational, it provoked hypophora concerning whether there are any penalties that may be given to magistrates who abuse judicial discretion afforded in local courts. Imposing punishments on potentially subjective magistrates in the local court is difficult to enforce as a result of the effects of the ‘two-tier’ justice system.6 A

3 R v Fahad Bin Qayyum Khan (Unreported, Burwood Local Court, Magistrate M Goodwin, 18 May 2016). 4 Shaman, above n 1. 5 Council of Chief Justices of Australia, Guide to Judicial Conduct (Australian Institute of Judicial Administration, 2nd ed, 2007) ch 2. 6 Neil Hutton, ‘The Sociological Analysis of Courtroom Interaction: A Review Essay’ (1987) 20 Australian & New Zealand Journal of Criminology 110.

Jeremy Bodon | 4366 1602

principle characteristic of this theory is the apparent triviality of the lower courts, whereby there is a lack of public interest, leading to the potential unenforceable abuse of power as a result of a lack of public supervision. I witnessed this phenomenon, with generally only upcoming defendants, relatives of parties to the case, and witnesses being present during hearings. McBarnet postulates that this absence of public supervision raises a possibility of abuse of power by the courts, with a lack of public interest in lower courts essentially threatening a requisite for due process – the ‘public’ aspect of administering justice.7

The issue of due process is examined further by McBarnet, who postulates that the local court’s generally lesser penalties imposed – the maximum sentence is 2 years8 - coupled with the notion of triviality and procedural informality, affords individuals less due process in local courts.9 In addition, it is accepted that judicial reasoning and associated remarks for decisions made in the local court are not to be scrutinised and analysed, as the local court magistrates are often dealing with significant workloads that do not allow for the exhaustive allocation of time on a particular case as with cases dealt with on indictment. 10 It is said that it would be an ‘intolerable burden on magistrates’ for them to not be afforded discretion on matters.11 As such, it is possible that this discretion may extend to an unfair abuse of power. Hence, this ‘intolerable burden’ may in some instances – however sporadic they may be – be a necessary burden that should be placed on local court magistrates to ensure that magistrates do not utilise discretion to unfairly disadvantage a particular party on the basis of prospective judicial bias. Although judicial subjectivity is disregarded due to the supposed impartiality of

7 Doreen J McBarnet, Conviction: Law, the State and the Construction of Justice in David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, 2015) 176. 8 Criminal Procedure Act 1986 (NSW) s 268(1A). 9 McBarnet, above n 7. 10 Acuthan v Coates (1986) 6 NSWLR 472. 11 Ibid.

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judges, there is an inherent human bias that may in certain cases cause a judge to neglect their obligations of impartiality, detachment and mechanical dispensing of cases.

To the contrary, an opposing degree of judicial demeanour was exhibited whereby a witness was suffering evident emotional distress. Instead of being excessively authoritative and potentially brash to a party as seen by the aforementioned case, the magistrate in R v Bilal Allouche12 was accommodating to the witness’ emotional needs, even allowing for pauses in the case to allow the witness time to regather. In contrast to the perspective on legal positivism, this method of judicial demeanour corresponds with a ‘procedural fairness’ perspective,13 with the magistrate having what is termed a ‘judicial temperament,’ 14 encompassing attributes beyond mere authoritarianism and impartiality. Rather, a judge according to this perspective should be characterised by courteousness, patience, compassion and understanding. These traits essentially imply that a judicial officer should engage with the participants rather than serve as a domineering figure. Having observed both diametrically opposing methods of judicial demeanour, it is reasonable to infer that there is no ‘better’ method of judicial demeanour, with it being possible for a judge to be both neutral and to have a ‘judicial temperament.’ There is an ongoing necessity to maintain institutional processes of abiding by rules and regulations when exercising judicial authority, whilst simultaneously ensuring that a defendant is not unfairly criminalised in accordance with procedural fairness. This is not only significant for the efficient administration of justice, but also is essential in upholding public satisfaction, with research finding that participants in

12 R v Bilal Allouche (Unreported, Burwood Local Court, Magistrate P Russell, 18 May 2016). 13 Mack and Anleu, above n 2. 14 Michael King, ‘Applying Therapeutic Jurisprudence from the Bench’ (2003) 28 Alternative Law Journal 172.

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criminal process are most satisfied with the court process when procedural fairness is believed to be upheld.15

In addition to judicial demeanour, court architecture and atmosphere has a profound influence in shaping the structure and processes of criminal procedure. Upon observation, it is palpable that courtroom structure serves as a method of ‘reinforcing authority and hierarchy,’16 with individuals situated according to their relative statuses. However, despite the clear existence of hierarchical structures in the courtroom, the extent of disparity between these hierarchical structures was far less that initially expected. This parallels legal commentary concerning contemporary courtroom structure, which asserts that there has been a transition into flatter hierarchical structures in courtrooms with less vertical distance between parties, representing law as increasingly democratic.17 However, the same commentary argues that there the flattening of hierarchical structures is not strictly limited to courtroom architecture, but extends to courtroom demeanour. This claim implies that certain participants are not alienated and marginalised in a courtroom. My observations contradicted this claim, with courtroom procedure expounding clear subordination between different parties, with certain judges or magistrates creating an atmosphere that alienates people ‘lower’ in the courtroom hierarchy.

Despite the aforesaid attempts to flatten courtroom structure, the formality and lack of understanding of courtroom procedure by the majority of defendants manifest issues concerning proper participation in court proceedings. As proper participation in court proceedings is paramount in the execution of criminal process, a failure to properly

15 Rosemary Hunter, ‘Through the Looking Glass: Clients’ Perceptions and Experiences of Family Law Litigation’ (2002) 16 Australian Journal of Family Law 7. 16 Mack and Anleu, above n 2. 17 Linda Mulcahy, ‘Architects of Justice: The Politics of Courtroom Design’ (2007) 16 Social & Legal Studies 383.

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participate from any party will impede in the ability of the court to adequately serve justice. 18 This failure to participate is often an unintentional one, brought about by a participant’s apprehension or inexperience in courtroom proceedings. The formality of the courtroom and positioning of the judge above the rest of the courtroom implicitly asserts an ‘entitlement of public authority to be obeyed,’19 which may extrapolate an inexperienced individual’s fears and perceptions of their supposed inferiority, which in turn may leave the individual unable to adequately express themselves. Courtroom rituals further exacerbate the disparity in hierarchical status of courtroom parties, despite attempt to move towards a more ‘democratic’ courtroom. Defendants – like everyone else – are required to bow to the judge upon entering the court room, whilst referring to the judge as ‘your honour.’ Contrastingly, the judge refers to the defendant and legal personnel as Mr, Mrs or Ms. As such, the formal courtesy ingrained in courtroom protocol only serves to enhance the disparity between the relative statuses of judicial personnel and the rest of the courtroom. This disparity creates an environment entailing submissiveness to the judge (who is the ‘authority’), increasing the apprehension of an individual and potentially limiting the coherency and transparency of communication. The case of R v Nasser Elias20 elicited the manifestation of one’s apprehension as a result of courtroom procedure, with the defendant initially seeming confident when talking, only to progressively lack coherence in his speech and continuously stutter after being ordered what to do by the judge.

Although some magistrates may create an unnerving atmosphere by excessively enforcing their authority, the majority of magistrates observed sought to ensure that parties were comfortable. There is an incessant desire to find a medium between people feeling safe and

18 Barbara Bezdek, ‘Silence in the Court: Participation and Subordination of Poor Tenants’ Voices in Legal Process’ (1991) 20 Hofstra Law Review 533. 19 Tom Tyler, ‘Procedural Justice, Legitimacy, and the Effective Rule of Law’ (2003) 30 Crime and Justice 283. 20 R v Nasser Elias (Unreported, Burwood Local Court, Magistrate S Seagrave, 18 May 2016).

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people not wanting the courthouse to feel like an asylum,21 with this conflict particularly apparent in the courtroom. Although safety measures were thorough and sufficient (including a metal scanner at the entrance), the individual courtrooms seemed very enclosed and secluded, evoking a sense of loneliness in unfamiliar surroundings. As such, the unfamiliar and ‘locked-in’ surrounds of the courtroom may increase difficulties associated with communicating, as a result of anxiety and nervousness. Such was discerned through an emotional witness in R v Fahad Bin Qayyum Khan, who being unable to fluently speak English in the first place, struggled to speak coherently as a result of the pressure and duress she was under. This communication barrier is a consequence of the individual being taken from their ‘conversational zone,’ 22 and being put in an unfamiliar environment with pressure to communicate coherently and rationally. In addition to exacerbating communication barriers, the supposedly flattened nature of court structure is negated through court processes that are ‘degrading.’23 These instances often isolate the defendant, and dehumanise and objectify them by neglecting their relative inexperience. This was witnessed first-hand, with certain witnesses treated as mere commodities used simply to further the case, with judges not taking into account their apprehension by ordering them to speak and clarify statements whilst being under emotional duress. I found communication was significantly easier in circumstances where the judge was patient and understanding of the inexperienced participant’s predicament. Therefore, I believe greater leniency to visibly distressed, emotional or inexperienced parties is best suited in order to ensure more coherent and rational communication.

21 Brawn Graham, ‘The Changing Face of Justice: The Architecture of the Australian Courthouse’ (2009) 98 Architecture Australia 39. 22 Pat Carlen, Magistrates’ Justice in David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, 2015) 179. 23 Tom Tyler, ‘The Role of Perceived Injustice in Defendants’ Evaluations of Their Courtroom Experience’ (1984) 18 Law & Society Review 51.

Jeremy Bodon | 4366 1602

In conclusion, both judicial demeanour and courtroom architecture play pivotal roles in helping shape criminal process in NSW. Observations of judicial demeanour in the local court have found that there may be a breach of due process, largely as a consequence of a lack of public interest resulting from triviality of a two-tier system, in addition to procedural informality. Additionally, courtroom architecture has sought to provide increased ‘democracy’ in contemporary courtrooms. Regardless, there remains clear disparities in courtroom hierarchy, with age-old courtroom protocol and formal courtesy exacerbating communicational barriers that arise from taking individuals out of their comfort zone.

Words: 1990

Court Attendance Log Court: Burwood Local Court

Matter Name: R v Dennis Hoang

Type of Matter: Mention

Date: 18 May 2016

Time: 9:40am – 10:am

Jeremy Bodon | 4366 1602

Burwood Local Court

R v Nasser Elias

Summary Hearing

18 May 2016

Burwood Local Court

R v Fahad Bin Qayyum Khan

Summary Hearing

18 May 2016

Burwood Local Court Burwood Local Court Burwood Local Court Burwood Local Court Burwood Local Court

R v Bilal Allouche

Summary Hearing

R v Omar Rajab

Sentencing Hearing

R v Mohammed El Chami R v Panagiotis Benetis

Summary Hearing

R v Catherine Casey

Plea

18 May 2016 18 May 2016 18 May 2016 19 May 2016 19 May 2016

Burwood Local Court

R v Alexander Lutu

Mention

19 May 2016

Burwood Local Court

R v Osama Saya’arah

Mention

19 May 2016

Burwood Local Court

R v Brodie Underwood

Sentencing Hearing

19 May 2016

Burwood Local Court Burwood Local Court Burwood Local Court

R v Zia Yusofzai

Summary Hearing

R v Jozef Kent Atkinson

Mention

R v Ilger Walter

Summary Hearing

19 May 2016 20 May 2016 20 May 2016

R v Ray Khouri

Mention

Burwood Local Court

Mention

20 May 2016

10:00am – 10:30am 10:30am – 11:45am 12:15pm – 1:00pm 1:00pm – 1:30pm 1:45pm – 2:15pm 9:45am – 9:55am 10:00am – 10:05am 10:15am – 10:30am 10:30am – 11:00am 11:00am – 11:45am 12:00pm – 1:30pm 9:40am – 10:05am 10:15am – 11:00am 11:15am – 11:30am

Jeremy Bodon | 4366 1602...