Skip to 0 minutes and 4 seconds GEORGE HAMPEL: The parties who oppose each other in court are adversaries. And the system works on the basis that the parties have the conduct of the case, and each party does the best, its best, to present its case at its best. So the prosecution, for example, once it’s charged someone with a criminal offense, wants to prove that the offense was committed. The defense, on the other hand, contends that there should not be a conviction. The judge controls the proceedings and the jury are the fact finders. And on the basis of the facts, which they determine are the correct facts in the case, they make the ultimate decision.
Skip to 0 minutes and 44 seconds And the benefit of that system is, the first thing is, that you’re bringing 12 minds, 12 independent minds, to an issue of fact, primarily.
Skip to 0 minutes and 57 seconds Now, 12 independent minds is a very powerful organism. And in my experience, they are very seldom wrong. I’m a great believer in the jury system.
Skip to 1 minute and 9 seconds NAHUM MUSHIN: My experience of the law tells me that there is no better way to determine the truth or otherwise the facts which are in contest than by cross-examination. It’s got to be regulated. All courts, all laws have ways of regulation. And ultimately, it’s up to the judge conducting the case as to how it will be conducted in his or her particular court.
Skip to 1 minute and 37 seconds PETER RA GRAY: We would have said some years ago that the role of a judge is to conduct a trial and decide the outcome of a case. And there is still a core element of that in what judges do. They do preside at trial and they do determine the outcome of cases by giving judgements in them. Increasingly, they also manage the cases in the preparation for trial. That is, get all of the steps that are necessary so the parties are ready for trial and their lawyers are ready to go. And they’re coming, I think, to recognize that most cases that are filed in courts aren’t actually resolved by judgement after trial. Most cases are resolved by settlement between the parties.
Skip to 2 minutes and 35 seconds There’s a lot of waste in preparation for trial when you don’t have a trial. So we are, I think, starting in judicial systems throughout the world to focus more on resolution rather than on the process of preparation for trial and make particular use of mediation. I was very keen on using mediation early in the piece rather than as a step between readiness for trial and the trial itself.
Skip to 3 minutes and 6 seconds MARCIA NEAVE: And one of the roles of lawyers– and sometimes judges do these too, one of the roles of lawyers is to inject some reality in the minds of their clients. So people are often very indignant and they want to go for broke in some situation. And a good lawyer will often say, well, I don’t think you’re going to get there, but you may get half or 3/4 of what you want, if we’re talking about compensation, for example, and it will cost you more money to litigate this than it will to settle for something that’s a bit less.
Skip to 3 minutes and 47 seconds PETER RA GRAY: I have great faith in the proposition that you can get to the right answer more often by debating the subject between the judge and the two counsel, and between the two counsel, of course, tossing around the ideas, asking questions, and getting answers to them. To me, you’re much more likely to get to the right result than you are by sitting stony-faced and listening to what the advocates say.
Skip to 4 minutes and 17 seconds GEORGE HAMPEL: Politicians like to look as if they are protecting the community by increasing sentences, by tightening the process. The reality is that it doesn’t work. There’s been no evidence that higher sentences on the statute book ever have any prevention in crime. In fact, the trend in the Western world nowadays is towards the rehabilitative process rather than the punitive process. Sentencing is one of the judge’s most difficult jobs.
Skip to 4 minutes and 59 seconds It’s difficult, because you have to apply so many different criteria to what you do. Because jail doesn’t rehabilitate anyone. There are very few real rehabilitation examples because of jail. Research that’s been taken shows that more and more severe punishment doesn’t help the individual and doesn’t prevent crime. In the United States, in the states where capital punishment exists compared to states where it doesn’t, there is no difference in the rate of crime which is punishable by the death sentence. So even the death sentence doesn’t provide a deterrent.
Skip to 5 minutes and 43 seconds MARCIA NEAVE: There is a bit of a tendency, I think, among politicians and parliaments, to, as soon as something is reported in the media, to say, we better do something about it, we’ll pass a law to fix it. And the problem with that approach, I think, is sometimes it’s unnecessary and ineffective. Very often there’s already laws that can deal with it. This often happens in the area of criminal law. Something dreadful happens and the politicians say, we’ll have a new law to deal with it. And that makes the law more complex than it should be and it can actually lead to injustice.
Skip to 6 minutes and 18 seconds If you have, for example, lots of provisions that deal with the same set of events, it makes it much more complicated for juries, it makes trials much more expensive, and it just appears to be doing something without actually changing anything.
Views from the Bench: Legal thoughts
Watch Nahum Mushin (Former Judge, Family Court of Australia), George Hampel (Former Judge, Supreme Court of Victoria), Peter RA Gray (Former Judge, Federal Court of Australia) and Marcia Neave (Former Judge, Victorian court of Appeal) share their unique views on the law while reflecting on their career in Australia’s legal system.
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