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In defence of judges


JudgeJudge Garry Neilson is in a spot of bother. 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 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.

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.

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.”

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? 

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. 

John Ellison DaviesJohn Ellison Davies lives in Gosford, NSW. He worked for many years in courts administration. Four of his poems appeared recently in
Eureka Street.

 Judge image by Shutterstock.


Topic tags: John Ellison Davies, Judge Garry Neilson, paedophilia, incest, homosexuality, judicial system, law



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Existing comments

“I’m Les. They call me Les the miserable.” How very appropriate.

Name | 15 July 2014  

"Garry Neilson is in a spot of bother" ... that really set the tone, didn't it? I'm sure this article is well-intentioned, but I can't think of a more cogent argument for better compulsory professional education for judicial and other court officers than the self-indulgent "group-think" the author displays. Court officers have a professional obligation not only to do justice without fear or favour but also to behave in a way that lets the community believe they can. I must say my confidence in that just waned a little bit more.

Terry Laidler | 16 July 2014  

Fair enough, John. What is obvious from your apologia is that judges need proper professional training and support for their grave office. But do they get it or does the "feudal" state of their clerical workplace set them above the capacities of the normal human being? If any person has to listen to what they do, bear the responsibilities they do you have to ask how do they manage their human, personal psychological reactions? How do they deal with the residue of their cases to live a balanced life? A psychatrist colleague in Germany spends every second saturday with a group of judges dealing with their emotions and feelings gathered during their work. If other professionals dealing with shocking and traumatic matters, as therapists and counsellors, paramedics and police need professional supervision or counselling, in order to maintain some objectivity and to manage their subjectivity why not judges?

Michael D. Breen | 16 July 2014  

A beautifully written - and a beautifully judged - piece. Eureka Street gets the day off to a good start again.

Joe Castley | 16 July 2014  

It's a sad day when anybody, judge, labourer, engineer, rouseabout, can't make a comment without all the thin-skinned do-gooders calling out for "education" or "re-training". Next you could send them to the gulag!

Des Byrne | 16 July 2014  

A beautifully written and judged piece, Indeed, poetic in some of its prose. Was not the judge simply looking at fact, namely, that Western Law already is eroding the Western, essentially Christian ethic through law in favour of abortion, same sex marriage, euthanasia and the curtailment of freedom of speech and expression. If we keep going the way we have been for the last half century I reckon the judge was right. We will eventually be an even more barbarous society where the horrors he elaborated on will be written in the Law. Time to remember that incest does produce severe developmental abnormality, that profligate male homosexuality introduced the immune deficiency virus to human beings from its natural pool in primate communities, that none of us possesses any "right" to satisfy a sexual urge regardless of the consequences to any other human being or the community at large. Time we all learnt to stand up and support the truth and stop running around seeking favour in the name of Christian compassion in support of the "rights" of the "wrongs" in this world.

john frawley | 16 July 2014  

Judges, like bishops, sometimes don't realise that they represent something above and beyond themselves. It is overdue they do.

Edward Fido | 16 July 2014  

It's always interesting reading the comments as well as the article, of course. Des Byrne's comment elicited a smile of agreement from me. What an onerous task a judge undertakes.

Pam | 16 July 2014  

There was more logic in the judge's comments than in the criticism of them. The crime that was not debatable was rape. Surely it was important for that to be stressed. A call for the community to clarify its ideas about other issues may not be out of place. A call for an examination of a matter does not assume support. It is a brave person who expresses views different to those currently prevailing yet, in the long run, it may be the prevailing views which are discarded.

Sheelah Egan | 16 July 2014  

No doubt judges accept their judicial appointment with a healthy mix of vanity, professional pride and a sense of duty?...Logic never plays much part in the following controversy? Maybe, for people will be lovers of self, lovers of money, proud, arrogant andabusive...No, power does not corrupt. Fear corrupts... perhaps the fear of a loss of power, I would say is the motive behide even the judges who aim to do their best. As it is of those they judge.

Eckhart Tolle | 16 July 2014  

I see your point Ecakhart: This is the verdict: Light has come into the world, but people loved darkness instead of light because their deeds were evil. Everyone who does evil hates the light, and will not come into the light for fear that their deeds will be exposed. But whoever lives by the truth comes into the light, so that it may be seen plainly that what they have done has been done in the sight of God.

Game Theory | 17 July 2014  

Yep, Eckhart, the Pain Body is a real pain. The primal fear impulse of the Egoic Mind.

Bernstein | 17 July 2014  

Let’s not judge them too quickly, or harshly. So, Davis,are you saying : "Do not judge, and you will not be judged? Do not condemn, and you will not be condemned. Forgive, and you will be forgiven? Is this your personal modus vivendi?

Peter Bohm | 17 July 2014  

So, I am right to say- fear is the cause of all pain? Fear is the cause of all emotional and physical pain? Let's say, fear of sickness, death, financial loss, and so on. So, ok: Blessed are the peacemakers, for they will be called children of God. Who by their actions and ability to forgive and make peace, expose the evil secret deeds of the children of darkness.... but people loved darkness instead of light because their deeds were evil, as Tolle quoted...And we all know sin bought illness, sickness, death and pain into the world in the first place. So by eliminating sin- would we prevent all suffering.. Or by simply forgiving, we would prevent all suffering, our own and those of others. What say you, Tolle? Am I right?

Peter Bohm | 17 July 2014  

Maybe. For the wages of sin," Paul says, "is death; but the gift of God is eternal life in Christ Jesus our Lord." Now, wages for military service are paid as a just debit, not as a gift. Hence, he said "the wages of sin is death," to show that death was not an unmerited punishment for sin but a just debit.

Eckhart Tolle | 17 July 2014  

To Tolle: "Too much talk about sin",... I think I remember Fr James saying to his daughter," And not enough talk about forgiveness". If you haven't yet seen the movie, 'Calvary'. these 'His' words will clarify the very last scene for you.

Matthew 18:22 | 20 July 2014  

This article makes no attempt to examine Neilson's comments, which were simply terrible. Reads like a defence of an exclusive men's club by a strangely loyal butler.

Penelope | 21 July 2014  

Spot on, Penelope!

Edward Fido | 22 July 2014  

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