Judge’s Views on Other People’s Views

The NSW Supreme Court’s Chief Judge at Common Law, Mr Justice McLellan delivered a speech to the Rule of Law Institute of Australia on 29 March 2012.

The speech, which was picked up by the Sydney Morning Herald, puts forward the Judge’s view that sentencing judges need to have a keener sensitivity to the public opinion of those crimes for which they are sentencing. His Honor doesn’t suggest that judges should do what shock-jocks tell them, only that they consider carefully the opinions that are often expressed on talk-back radio and other similarly “democratic” forums for the expression of views. The speech exhorts the relevance of informed opinion to the judicial function on sentencing and makes reference to interstate examples of the experience of courts trying to do precisely that.

The speech is not especially long and worth reading in full coming as it does from a judge who regularly sits in the Court of Criminal Appeal and hears appeals against the harshness of sentenced handed down by other judges. The speech doesn’t go into any analysis of how public opinion of a crime in general must be offset against the requirement that punishment fit the crime in particular nor does it offer any thoughts regarding the concept that public opinion of a crime is usually incapable of being anymore informed than about the crime objectively and not the particulars of the incident before the court. This is especially so in the case of sexual offences where the law in NSW is such that a great deal of information that can be potentially relevant to an informed opinion cannot be published or, out of caution, is not published or otherwise available to the commentating public.

Justice McLellan does have some keen observations however:

“The reduced incidence of violent crime and property crime in our community since 2000 is not reflected in public opinion. Nor is the high conviction rate for these crimes being recognised by the community. People perceive sentences to be too lenient. Rightly or wrongly, many people believe that inadequate sentences are a major cause of crime, if not the main cause.”

His Honor sees a division in between people based on where they “get their news from”:

“People who get their news from talkback radio and the tabloid media are among
those who hold the courts in the lowest regard.4 Many in the legal community as well as some in the general community dismiss the legitimacy of their views.5 It is likely that those who read the Sydney Morning Herald, listen to Richard Glover or watch ABC television will have different responses to these issues than readers of the Daily Telegraph and listeners to Alan Jones or Ray Hadley.”

On the other hand, regular practitioners in criminal law not only do not dismiss Alan Jones or Ray Hadley – they have an awareness of those views and indeed have given interviews to them or actively contribute to the commentary that those commentator’s programs facilitate. One judge has been interviewed on-air on such a program. For defence lawyers, our clients frequently “get their news” from such sources as His honour is referring to.

Much could be said about whether or not all news is in fact news as opposed to mere opinion. For now, the speech will resonate, no doubt, through sentencing submissions by Crown Prosecutors. Time will tell if it marks a turning point towards increased sentences or more generous concession to the views of the public gallery.

Given the need to keep public opinion informed, is it now time to revisit whether or not we should have cameras in court?

Aaron Kernaghan.