Victoria's judges are effectively unaccountable

But perhaps he could.

You see there’s a significant distinguishing feature in our scenario. High profile cases like those above attract public interest and consequent media scrutiny; ours being nondescript attracts neither. If our judge manipulates the evidence to suit his findings, pretends to believe the defendant when the evidence shows he could not have been telling the truth, omits reference to his lies and criminal admissions, what’s to stop him? The judgment won’t appear till many months after trial, by which time the lawyers, even the parties, have forgotten the proceedings; everyone has moved on.

What’s happening here, you exclaim? Does Victoria have some secret protocol whereby high profile cases litigated under media glare suffer the full vigour of the law, but backwater cases attracting no media attention, do not?

No, it doesn’t, but this is the exception, not the rule - the sort of thing that could happen with a flawed judge. The vast bulk of Australian judges would act honourably irrespective of scrutiny.

Well, you say, the appellate system to the rescue! The truth will out on appeal.

But will it? Remember Justice Ipp? Remember the profound dependence of appellate courts on trial judges’ findings?
Professor Hart claimed in almost every case a judge had room to manoeuvre, and where none existed, a judge so minded could make room; a flawed judge could easily manipulate evidence confident an appellate court would back him with that ancient aphorism: The trial judge was there to hear the facts so he’s best to decide those facts.

By now it should be blindingly obvious that because appellate courts are so loathe to question the trial judge’s findings or to receive additional evidence, he is pretty much free to write up his judgment howsoever he likes. Even if he manipulates and omits crucial evidence, his findings are unlikely to be reversed on appeal. If the appellate court won’t interfere with his findings and won’t receive additional evidence, Justice Chernov’s police car wouldn’t know if it were following a truck or a trike, and no matter how painstaking Justice Ipp’s rigorous scrutiny, one cannot possibly find that which is not there.

Clearly, the way appellate courts operate ill-equips them to even recognise judicial misconduct, let alone deal with it. Couple this with a dysfunctional judicial complaints system, and you have a judiciary that is for all practical purposes unaccountable.

In an insightful paper, Chief Judge of the NSW Supreme Court, Peter McClellan, spotlights the Victorian system’s fatal flaw in one poignant sentence:

If as I understand the Victorian model contemplates, the Attorney has the function of determining which matters should be investigated - and appointing the [investigating committee] a significant boundary designed to ensure judicial independence has been crossed. (Judicial Conduct: Still A Live Issue, 2005 A.J.C.)

Indeed, one wonders what rationale lies behind a system that so unwisely tilts the balance in our sacred trinity of governmental structure: the Separation of Powers. The Attorney-General’s unfettered power places him in an impossible situation. If he instigates an investigation into judicial conduct, he risks accusations of abuse of power; if he doesn’t, he stands accused of inaction. In other words: damned if he does, damned if he doesn’t!

It is not, however, difficult to see why he might prefer inaction to the alternative. Investigating judicial conduct is grim business, fraught with all manner of political implications. Justice McClellan (2005) states merely initiating a formal investigation often leads to the judge’s resignation. Highly critical of Victoria’s system, he argues a New South Wales-type model, where all complaints are considered by a special commission is eminently preferable. In unveiled censure he remarks: