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Henry, Gregory --- "Pinochet: In Search of the Perfect Judge" [1999] SydLawRw 26; (1999) 21(4) Sydney Law Review 667



[*] Final Year student 1999. I wish to thank Dr Mary Crock for supervising the writing of this paper, and also my friend Stephanie Werner for providing much of the inspiration behind it.

[1] Law Guardian (No 74, November 1971), cited in Shetreet S, Judges on Trial: A Study of the Appointment and Accountability of the English Judiciary (1976) at 343.

[2] BBC News, ‘Chile cuts contacts with UK’ (12 December 1998). All BBC News items may be found online at <http://news.bbc.co.uk> .

[3] See her letter to the Editor, Sunday Times (22 October 1998).

[4] BBC News, ‘Freedom for Pinochet Blocked’ (15 April 1999).

[5] BBC News, ‘Fists Fly Over Pinochet’ (22 May 1999).

[6] BBC News, ‘Celebrations Greet Pinochet Decision’ (24 March 1999).

[7] Reg v Bow Street Magistrate, Ex parte Pinochet Ugarte [1998] UKHL 41; [1998] 3 WLR 1456.

[8] Reg v Bow Street Magistrate, Ex parte Pinochet Ugarte (No 2) [1999] UKHL 1; [1999] 2 WLR 272.Pinochet’ is used to refer to this, the second House of Lords decision, unless otherwise stated.

[9] Note that Lady Hoffmann had also been working for AI’s International Secretariat since 1977. Ultimately nothing turned on this, as Lord Hoffmann’s own ties were found sufficient to give rise to a breach of the bias rule.

[10] Reg v Bow Street Magistrate, Ex parte Pinochet Ugarte (No 3) [1999] UKHL 17; [1999] 2 WLR 827.

[11] Dimes v Proprietors of Grand Junction Canal [1852] EngR 789; (1852) 3 HL Cas 759 at 793 (Lord Campbell); R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Anderton v Auckland City Council [1978] 1 NZLR 657 at 680 (Mahon J); R v Gough [1993] UKHL 1; [1993] AC 646 at 661–2 and 673 (Lord Goff); Webb v R [1994] HCA 30; (1993) 181 CLR 41 at 75 (Deane J); Ebner v Official Trustee in Bankruptcy [1999] FCA 110 at §32; Dovade Pty Ltd v Westpac Banking Group [1999] NSWCA 113 (30 April 1999) at §66.

[12] R v Hammond (1863) 9 LT (NS) 423 at 423 (Blackburn J); R v Rand (1866) LR 1 QB 230 at 232 (Blackburn J); Ebner id at §46. Above Dovade id at §85.

[13] For example, Thomas JB, Judicial Ethics in Australia (2nd ed, 1997) at 54; Bingham T, ‘Judicial Ethics’ in Cranston R (ed), Legal Ethics and Responsibility (1995) at 40.

[14] Dovade above n11.

[15] R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553–4; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 261–2, 264, 267; Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293–4, 300; Webb v R [1994] HCA 30; (1993) 181 CLR 41 at 47 (Mason CJ & McHugh J); Mobil Oil Australia Ltd v Welcome International Pty Ltd [1998] FCA 205; (1998) 81 FCR 475 at 493; Ebner v Official Trustee in Bankruptcy [1999] FCA 110 at §32.

[16] R v Gough [1993] UKHL 1; [1993] AC 646 at 670 (Lord Goff); Pinochet at 284 (Lord Browne-Wilkinson). Counsel in Pinochet urged that the test be reviewed, although the court declined the opportunity to consider the issue.

[17] Pinochet at 282 (Lord Browne-Wilkinson).

[18] Id at 284, citing R v Sussex Judges, Ex parte McCarthy [1923] EWHC KB 1; [1924] KB 256 at 259.

[19] Id at 287.

[20] Id at 288.

[21] See Pinochet at 281, 284 (Lord Browne-Wilkinson); 287 (Lord Goff); and 288 (Lord Hope). Consider here also Shetreet above n1 at 303, and De Smith, Woolf & Jowel, Judicial Review of Administrative Action (5th ed, 1995) at 525.

[22] [1852] EngR 789; (1852) 3 HL Cas 759.

[23] Pinochet at 293.

[24] [1994] HCA 30; (1994) 181 CLR 41 at 74 [Emphasis added].

[25] Ebner v Official Trustee in Bankruptcy [1999] FCA 110 at §58.

[26] Dovade, above n11 at §89. [Emphasis added].

[27] Pinochet at 282.

[28] Id at 284.

[29] Above n18.

[30] Aronson M & Dyer B, Judicial Review of Administrative Action (1996) at 588.

[31] Ibid.

[32] Megarry R, ‘Judges and Judging’, Child & Co Lecture, 3 Mar 1977 at 5, cited in Bingham above n13 at 47.

[33] Above n30 at 588. Consider though the position of administrative tribunals, where slightly different principles may apply. See Allars M, ‘Neutrality, The Judicial Paradigm and Tribunal Procedure’ [1991] SydLawRw 26; (1991) 13 Syd L Rev 377.

[34] Metropolitan Properties Co (FGC) Ltd v Lannon [1968] EWCA Civ 5; [1969] 1 QB 577 at 599.

[35] [1976] HCA 39; (1976) 136 CLR 248 at 263.

[36] [1994] HCA 30; (1993) 181 CLR 41 at 51.

[37] Taiwo O, Legal Naturalism: A Marxist Theory of Law (1996) at 136.

[38] Wood D, ‘Judges and Community Involvement’ (1998) 75 JJA 229 at 240.

[39] The Times (28 February 1986).

[40] Above n1 at 75.

[41] Griffith JAG, ‘Judges in Politics: England’ (1968) 3 Government and Opposition 485, cited in Shetreet above n1 at 75.

[42] Re R & Judge Leckie; Ex parte Felman (1977) 52 ALJR 155 at 160 (Jacobs J).

[43] The Spirit of Liberty (3rd ed, 1977) at 130. Consider here generally the arguments of Dworkin RM, in The Philosophy of Law (1977) and Law’s Empire (1986), and compare these with those of Hart HLA, in The Concept of Law (2nd ed, 1994), particularly at 272.

[44] Cardozo B, The Nature of Judicial Process, cited in Noonan JT Jr & Winston KI, The Responsible Judge: Readings in Judicial Ethics (1993) at 28. See also comments made by Lord Kilbrandon, cited in Shetreet above n1 at 325.

[45] Shientag BL, ‘The Virtue of Impartiality’ in Winters GR (ed), Handbook for Judges (1975) at 57–64.

[46] Id at 62.

[47] ‘The Work of the Commercial Courts’ (1921) 1 Camb LJ 6 at 8.

[48] Nemetz NT, ‘The Concept of an Independent Judiciary’ (1986) 20 UBC L Rev 285 at 290.

[49] See Griffith JAG, The Politics of the Judiciary (1st ed, 1977), (5th ed, 1997). See (5th ed) chs 1 & 2, particularly at 56–7.

[50] Wilson B, ‘Will Women Judges Really Make a Difference?’ (1990) 28 Osgoode Law Journal 507 at 509. For example, Lord Denning once said, ‘The youngsters believe that we come from a narrow background – it’s all nonsense – they get it from that man Griffith’. (Cited in Lee S, Judging Judges (1988) at 33.)

[51] Cited in Murphy WF, Elements of Judicial Strategy (1964) at 30.

[52] O’Shane P, speech delivered at the Launch of the Australian Feminist Law Journal, 29 August 1993, (1994) 2 Aust Fem LJ 3 at 8–9. See also Graycar R, ‘The Gender of Judgments: Some Reflections on Bias’ (1998) 32 UBC L Rev 1 at 4.

[53] O’Shane, id at 9.

[54] Ibid. See also Weisbrot D, Australian Lawyers (1990) at 79: ‘The Australian legal profession does not reflect the socioeconomic class, ethnicity or gender composition of the society at large’. See generally ch 4.

[55] O’Shane, above n52 at 5.

[56] Id at 7, citing Scales-Trent J, ‘Women in the Lawyering Process: The Complication of Categories’ (1990) 35 NYL Sch L Rev 337.

[57] Minow M, ‘Stripped Down like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors’ (1992) 33 William & Mary L Rev 1201 at 1207. See also Graycar, above n52 at 9.

[58] O’Shane, above n52 at 10.

[59] Graycar, above n52 at 13.

[60] See for example, Wigmore JH, Evidence in Trials at Common Law (rev ed), (1970) at 924a, who wrote ‘No judge should ever let a sex offence charge go to the jury unless the female complainant’s social history and mental make-up have been examined by a qualified physician’. For a critique see Bienen LB, ‘A Question of Credibility: John Henry Wigmore’s Use of Scientific Authority’ (1983) 19 Cal W L Rev 235.

[61] Consider Sheehy E, Stubbs J & Tolmie J, ‘Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations’ (1992) 16 Crim LJ 369, and Mahoney M, ‘Legal Images of Battered Women: Redefining the Issue of Separation’ (1991) 90 Mich L Rev 1.

[62] See generally Graycar, above n52 at 15. Consider also Delgado R, ‘Storytelling for Oppositionists and Others: A Plea for Narrative’ (1989) 87 Mich L Rev 2411; Sarmas L, ‘Storytelling and the Law: Case Study of Louth v Diprose[1994] MelbULawRw 8; (1994) 19 MULR 701.

[63] Graycar, id at 11. See also Lee S, Judging Judges (1988) at 203.

[64] Consider here arguments for a more representative judiciary, which unfortunately are beyond the scope of this work. See for example, Graycar above n52 at 10; Ontario Law Reform Commission, ‘Gender Representation in the Canadian Judiciary’ by Grant I & Smith L in Appointing Judges: Philosophy, Politics and Practice (1991) at 57; Resnik J, ‘Ambivalence: The Resilience of Legal Culture in the United States’ (1993) Stan L Rev 1525; Law Society of British Columbia Gender Bias Committee, Gender Equality in the Justice System (Report, 1992); Mason AM, ‘The Australian Judiciary in the 1990’s’, Bar News (Autumn/Winter 1994) 7 at 8–9.

[65] Judgment Reserved (1941) at 267. Similar views are expressed by Thomas J (of the Queensland Supreme Court) above n13 at 32.

[66] Hon Thyne AJ, Queensland, Parliamentary Debates (Hansard), October 1921 at 1413.

[67] Cited in Shetreet, above n1 at 323.

[68] Davis MD & Clark HR, Thurgood Marshall: Warrior at the Bar, Rebel on the Bench (1992) at 140.

[69] Bingham, above n13 at 43. Consider also Lord Parker, ‘The Judicial Function and Penal Reform’ (1967) 9 Crim LQ 400 at 405, 414. Note also that all judicial officers of the House of Lords are cross-benchers (ie, have no political affiliations).

[70] Webber J, ‘The Limits to Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon Mr Justice Berger’ (1984) McGill Law Journal 369 at 374.

[71] Thomas JB, Judicial Ethics in Australia (1988) at 32; ‘The Ethics of Magistrates’ (1992) 1 The Judicial Review 59.

[72] See Judge Sullivan’s case, discussed in Hall D, ‘Judicial Removal for Off-Bench Behaviour: Why?’ (1972) 21 J Pub L 127 at 128, 134, 146.

[73] Shetreet, above n1 at 342; Thomas, above n13however, Lord Hewart is ‘hardly a persuasive model for those who advocate increased activity by judges in public affairs’ at 41. Hewart himself came to regret some of his extra-judicial writing later in life. See Jackson R, The Chief (1959) at 216.

[74] Shetreet, above n1 at 329; Smith A, Lord Goddard (1959) chs 12–13; Jones G & Grimshaw E, Lord Goddard (1958) ch 7.

[75] BBC News, ‘Q&A: Pinochet Gets a Second Chance’ (21 December 1998); BBC News, ‘Lord Irvine Says Pinochet Law Lord Should not Resign’ (9 February 1999): <http:news.bbc.co.uk>.

[76] Above, n13 at 43.

[77] ‘The Chief Justice’, Four Corners, ABC Television (3 April 1995).

[78] Consider here also former NSW Justice Andrew Rogers, who at times made his views on controversial matters plain for all to see. For example, see his comments on the bill before the NSW Parliament to establish a judicial commission in ‘Judicial Accountability: A Judge’s Personal Commentary’ (1987) 17 Queensland Law Society Journal 21.

[79] Above, n45 at 58.

[80] Wood, above n38 at 234.

[81] Ibid. See also Wood D, Judicial Ethics: A Discussion Paper (1996) at 15.

[82] Above n38 at 245. See also Santow, ‘Aspects of Judicial Restraint’ (1995) 13 Aust Bar Rev 116 at 146.

[83] McKay R, ‘The Judiciary and Non-Judicial Activities’ (1970) 35 Law and Contemporary Problems 9 at 12. Lord Woolf MR recently wrote, ‘... if the judge concentrates on the trees, he can lose sight of the horizon of the landscape in which they grow. The advantage of a judge being invited to give a lecture or write an article is that it causes him to raise his sights and view the subject from a wider perspective ...’ Woolf, ‘Judicial Review: The Tensions between the Executive and the Judiciary’ (1998) 114 LQR 579 at 579.

[84] Kirby M, The Judges (Boyer Lectures, 1983) at 29, 66, 78.

[85] Santow K, ‘Transition to the Bench’ (1997) 71 ALJ 294 at 296.

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