Judge Garry Neilson is in a spot of bother
(after comparing incest and paedophilia to homosexuality). He is not the first
Judge to find himself in this situation and he will not be the last.
Judges enjoy a life of privilege and
status. In their own courtroom they are feudal masters. They have a private
dining room. They get free and secure parking. Discreet security measures
envelop them. They live quietly and do not draw attention to themselves.
When one of them makes a mistake, the media
jumps all over them. Politicians rant. The controversy is always out of
proportion to the alleged error. It may be damaging to a career, even deadly.
Judges do not deserve to be treated in this way.
Take the case of a judge who fell asleep
briefly during a trial. I accept that he did fall asleep, though I was not
there. I have seen many barristers and solicitors fall asleep. I have been
close to it on many occasions myself. The air conditioning in courtrooms is
universally bad – alternately freezing or stuffy and suffocating. Put into that
situation a judge with a certain medical condition and it is not surprising if
he nodded off a few times in a long and distinguished career.
The case of Jeff Shaw was equally trivial,
though more embarrassing to the judge. What did he do? He was drunk. He walked
out of a hospital with both blood
samples, went home, tried to move his car a few yards down the road to a better
parking spot, and pranged it. There were only two sane reactions to this story
at the time: 1. privately, a roar of laughter from Phillip to Goulburn Street
(haven’t we all had a night on the town that got a little out of hand?) 2.
publicly, pity for him in that he waited too long to come forward to return the
second blood sample to police. As a former politician he should have known
better.
Jeff Shaw resigned. He preserved his own
dignity and that of his office. What would you have done? Let’s get personal.
Know thyself.
Why should I defend judges? Because they
will not defend themselves. They can’t. Their life of privilege leaves them
strangely vulnerable. They are perhaps the last people alive who take an oath
of office seriously. They will protect the dignity of their office before their
own. They will cop it sweet when a newspaper screams SACK HIM. Thank God they
do. Someone has to. That is one reason why I find them interesting human
beings.
Judges are human. Surprise. Sometimes they
doodle while listening to evidence. One does rather beautiful abstract
miniatures. Some make shopping lists. Some like to tell jokes or reminisce
about other cases. They, like us, try to find ways to make their working day
bearable. (Don’t forget the air-conditioning problem.) But they are always
listening and making notes.
I have seen them depressed, petulant,
arrogant, mischievous, jovial, high on the theatre of it all, tired, and
sometimes just plain bored. Their job is to make serious decisions that affect
other people’s lives. They have mood swings, like you and me.
I recall one judge who behaved atrociously
in court, abusing witnesses and barristers alike, shouting over them and saying
things that frankly made no sense. He had a bad ‘flu. During a short
adjournment he admitted “I shouldn’t be here.” He knew it. He reined himself in
with pure willpower. He still felt terrible, but he recovered his self-control
to finish the court case. Judgments take a while to write. He had plenty of
time to refer to his notes or the transcript for anything he had missed when not
feeling well.
What are judges like? Some general comments
can be made. They are logical people.
They are mentally quick. They have an eye for detail and can join the
dots in a maze of information. They are bower birds of facts gleaned from years
of having heard it all. The same long experience makes them practical,
pragmatic people who trust only cold things called evidence. They mostly have a
fine sense of humour, as you would expect from people of above average
intelligence, though their humour often runs on the dry side. A life in the law
will do that to you. This much they all have in common.
They are not especially creative or
imaginative. Some have an educated, dutiful interest in the arts and theatre
and keep up with the latest novels. Others are content to play golf or be
spectators of other sports. Some have hobbies, like photography.
In court some are gentle, orderly,
meticulous. Another is whimsical, as if surprised to be there. Several are
crisply efficient in a Captain-of-the-ship style. One seems chronically
depressed. One has a jaunty Franklin Roosevelt manner. Others have a wilder
temperament, revelling in verbal stoush and aggro – one of these admits that it
helps him to stay awake.
Some have had other careers before they
went into the law.
They come in all shapes and sizes.
Judges are acutely conscious of their power
and do not use it lightly. In civil cases I have seen them agonize over
decisions they had to make in favour of people they instinctively dislike,
against people they felt to be decent but wrong in law.
Sometimes in a criminal case a judge’s
hands will tremble when passing sentence. It’s a good thing they are up on the
bench where no one can see. They feel deeply the responsibility of what they
are doing. Only their voices remain firm and unflinching. They are actors when
they need to be.
Sometimes they speak of loneliness in their
job. I am betraying no secret or confidence when I tell you that one judge
delighted in introducing himself with the words: “I’m Les. They call me Les the
miserable.” Judges can seek advice from other judges, meet in their private
dining room or chambers and share a bottle of wine after hours, but when making
decisions they are intensely alone.
Sometimes you hear it said that judges are out
of touch with community standards, attitudes, expectations. Of course they are.
So are you. So is your plumber and your doctor. We are all locked in our daily
familiarities and view the world through our narrow prism. It takes an effort
of empathy to grasp the way other people live, and to try to understand them.
Judges make the effort. Do you?
Sydney loves a rumour. Sometimes they are actually true. One morning in
the early 1980s someone said to me “Have you heard that Yeldham was arrested
last night in a public toilet?” I did not believe it and did not want to hear
it. I was, then, a clerk in the Supreme Court registry. The judge, David
Yeldham, had once thrown a file at me, exasperated by a bail application. We
laughed about it afterwards. Everyone who worked near the man liked him.
The rumour died and the story did not
become public until ten years later when Franca Arena shamefully,
irresponsibly, unforgiveably, abused her parliamentary privilege to name him as
a suspected paedophile. He was not a
paedophile, as everyone soon discovered. He had done
nothing illegal. He had been questioned by police over consensual acts in a
public place, and he was let go. That was enough to give Arena’s bizarre
allegation an obscene wisp of plausibility in some eyes. The old favourite game of
judge-bashing had entered a deadly new phase.
Yeldham was no fool. He took his own life.
He removed himself from the frightening circus being orchestrated around him by
those far less honourable. He gave a gentleman’s answer. He preserved his own
dignity and that of his office. Everyone working in the Supreme Court was
saddened. Looking back, you can only weep over the savage pointlessness of it
all.
No doubt judges accept their judicial
appointment with a healthy mix of vanity, professional pride, and a sense of
duty. They aim to do their best. They plod away until retirement, serving the
Law as it functions to hold our society together in some kind of order. You
rarely hear any more about them until they fall asleep or make a mistake.
Whatever their mistakes, logic never plays much part in the following
controversy.
The State funeral for Judge Bob Bellear in
2005 illustrated how the fairy-tale should end: surrounded and fondly
remembered by friends and family, honoured by colleagues. A busy and hearty
life celebrated. A nudge and a wink from the media because he was known to
enjoy a bet at the TAB. Public admiration for a man who mixed it with the best
and toughest and rose to become a judge. We said farewell to him with the same
words he often used to court staff: “Good on you!”
As for the others… perhaps we should simply
remember that judges are human. Let’s not judge them too quickly, or harshly.
- An edited version of this article was published in Eureka Street on 15 July 2014
