Executive complaints against judges
Jerry Leung, Maxen Williams, and Kevin Zou
11.4.2024
Last month, it was reported that the Victorian Director of Public Prosecutions (VDPP), Kerri Judd KC, had made complaints to the Judicial Commission of Victoria (JCV) about two judges: Justice Lasry of the Supreme Court of Victoria, and Judge Chettle of the County Court of Victoria. In the complaint against Lasry J, the Solicitor for Public Prosecutions, Abbey Hogan, alleged that his Honour’s criticisms of the VDPP in DPP v Tuteru [Ruling No 3] [2023] VSC 93 (appeal allowed in [2023] VSCA 188) (Tutera) had ‘the real tendency to diminish [(1)] public confidence in the administration of justice in Victoria [and (2)] the confidence of litigants and the public in general in his Honour’s integrity and impartiality’. Shortly after being made aware of the complaint, Lasry J in open court announced that he would resign even though he ‘utterly rejected’ the allegations made against him.
Lasry J’s resignation meant that the JCV was required to dismiss the complaint against his Honour pursuant to s 16(3)(e) of the Judicial Commission of Victoria Act 2016 (Vic) (JCV Act). By contrast however, it appears that at the time of writing, the complaint against Judge Chettle remains on foot. That complaint relates to a pre-trial ruling made by his Honour in DPP v MK (Unreported, County Court of Victoria, 17 February 2023, Judge Chettle) (appeal allowed in [2023] VSCA 187) (MK). It is understood that Judge Chettle ‘vigorously defended himself in the judicial commission and [that] the watchdog is now considering its decision’.
Figures within the legal profession have expressed concern about these recent events, where the VDPP proceeded with its complaints against Lasry J and Judge Chettle despite the intervening correction of the erroneous first instance rulings on appeal. In particular, Walton J, speaking on behalf of the Australian Judicial Officers Association, described the ‘circumstances which precipitated [Lasry J’s] resignation’ as ‘regrettable and extraordinary’. Former Chief Crown Prosecutor, Gavin Silbert KC, said that the ‘infighting’ between the VDPP and the judiciary ‘brings the whole criminal justice system into disrepute and erodes public confidence in the system’. However, the Law Institute of Victoria appears to have taken a different position, calling on ‘all members of the legal profession to respect the judicial complaints process’ whilst also stating that ‘[w]e cannot keep perpetuating a culture where people are too scared to make a complaint’.
In this post, we do not make any comment on the merits of the complaints against Lasry J and Judge Chettle. Rather, taking a step back from the Victorian saga, we argue that there are strong normative and legal reasons as to why the executive should exercise restraint before making a formal complaint against a judge. We begin by explaining why formal complaints made by the executive against the judiciary should be the exception rather than the norm. This is followed by an illustration of the other mechanisms available for securing judicial accountability that better uphold a culture of comity between the executive and the judiciary.
The need for comity
In Aileen Kavanagh’s new book The Collaborative Constitution (Cambridge University Press, 2023), she envisions the executive, legislature and judiciary as being constituent parts of a ‘collaborative enterprise’ under which each branch plays a distinct but interrelated role in carrying out the ‘common project of governance’ (pp 97, 101–2). Kavanagh’s account provides us with a helpful framework to theorise about what the relationship between the executive and the judiciary ought to look like in situations where a member or body of the executive is a party to litigation before the courts. Here, we will focus on the criminal justice context given how recent tensions in the relationship between the executive and judiciary have arisen in circumstances of prosecutions brought by the VDPP.
The starting point for Kavanagh’s concept of the collaborative constitution is that just like in any partnership, there is necessarily a ‘division of labour’ within any constitution. In the context of a criminal trial, the executive (through the Director of Public Prosecutions (DPP)) is responsible for deciding the charges to be brought (if any), presenting the prosecution case firmly and fairly, and adducing all relevant evidence (see, eg, ODPP NSW Prosecutorial Guidelines chs 1–2). The courts, on the other hand, administer the common law system of adversarial trial by adjudging and punishing criminal guilt (Garlett v Western Australia at [124] and [130]–[131] (Gageler J)). The point is that the enforcement of the criminal law is not a task which is concentrated in the hands of one institution but is a collaborative endeavour between the executive and the judiciary.
It follows that both institutions must support and respect the roles of the other in order for the criminal justice system to operate effectively. Kavanagh expresses this dynamic in terms of the executive and judiciary owing each other a ‘duty of inter-institutional comity’, as expressed through the principles of mutual self-restraint and mutual support (p 98). Specifically, mutual self-restraint ‘entails that each branch should refrain from undermining, usurpring, or interfering with the decision-making capacity of the other branches of government in the collaborative constitutional scheme’ (pp 98–99). This is reflected in the well-established principle that ‘it is the prosecutor, alone, who has the responsibility of deciding the charges to be preferred against an accused person. The judge has no role to play in that decision’ (GAS v The Queen at [28] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ)). It is also reflected in the expectation that Ministers confine their criticisms of judicial decisions in a way that ‘stops short of impugning the integrity of individual judges’ (Kavanagh, p 99).
Kavanagh’s norm of mutual support requires each institution to ‘actively support each other in various ways in order to realise the common goal of good government under the constitution’ (p 98). This would demand, for example, that the executive obey court orders to release an accused from custody after they have been found not guilty (absent some other basis to detain them, such as under a preventive detention regime). It would conversely require the courts to entertain an appeal from a first instance decision if the prosecution believes that the trial judge erred, despite the fact that this may require an appellate bench to reverse the decision of their judicial colleague.
These ideals of comity and collaboration do not mean, however, that the relationship between the DPP and the judiciary is or should be a conflict-free zone. As Kavanagh puts it, although ‘[t]he branches of government are not enemies … they are not friends either’. Rather (p 108):
[T]he collaborative constitution accepts the value of inter-institutional contestation and critique, whilst situating that contestation within the broader collaborative dynamics which underpin a long-term, working relationship between partners. It supports a system of sceptical rather than sanguine cooperation, where each branch is embedded in ‘a relationship of mutual tension’ as well as mutual respect. As such, the branches must be prepared to check and counterbalance the other as part of an ongoing, collaborative process.
One way in which courts check and counterbalance the executive in the criminal justice context is by staying proceedings and rebuking prosecutors where there has been abuse of process. That is what Lasry J and Judge Chettle did in Tutera and MK respectively (although it is unclear whether the VDPP’s complaint with respect to Judge Chettle exclusively related to the comments made in MK). Yet, even though both rulings were reversed on appeal, there is no doubt that the judicial scrutiny of prosecutorial action, when carried out in good faith, is an important part of protecting the individual against ‘the processes and procedures of the court … [being] converted into instruments of injustice or unfairness’ (Walton v Gardiner at 392–3 (Mason CJ, Deane and Dawson JJ)).
Conversely, the executive may hold a trial judge accountable by lodging an appeal. But is it appropriate for the DPP to go further and make a formal complaint against a judge? There are powerful reasons why such complaints should only be made in exceptional circumstances. A formal complaint against a judge transforms a contention that the judge erred in carrying out their judicial functions into an allegation that the judge has engaged in impropriety or misconduct. That is a step that should not be taken lightly, especially given how such a complaint, by virtue of the fact that it is brought by a branch of government, bears an aura of legitimacy that an equivalent complaint made by an individual litigant would typically lack. The consequence is that if the complaint is publicised (as has occurred with Lasry J and Judge Chettle), public confidence in the integrity of the judiciary may well be needlessly diminished, especially if the alleged transgressions prove to be no more than inadvertent errors of law.
More fundamentally, however, a collateral complaint against a judge framed in the language of wrongdoing crosses the boundary of ‘constructive criticism’ into the territory of ‘acrimony and antagonism’ (Kavanagh, pp 107–8) — a shift that ought to be avoided in all but exceptional cases. Engaging in such ‘constitutional showdowns’ which are external to the ordinary appellate structures by which judicial error is corrected risks ‘a gradual erosion of the norms of comity and constructive engagement, ultimately leading to a breakdown in the mutual trust on which the long-term health and wellbeing of the system depends’ (pp 112–3). That is not conducive to the proper and efficient administration of criminal justice, which, as illustrated above, depends on the DPP and the judiciary acting ‘in a spirit of comity and collaboration’ (p 116). It would further be undesirable for judges to be placed in a position where they consciously or subconsciously hold back from being fearlessly independent, lest a complaint be made against them by an executive body whose actions are coloured with particular influence.
Executive capacities
Besides these normative issues, there are also doctrinal constitutional problems relating to the scope of executive power, and whether it extends to actions which undermine judicial independence. Prima facie, the VDPP, as an arm of the Victorian executive government, shares in the same powers as the Crown. This includes statutory executive powers — such as those granted by the Public Prosecutions Act 1994 (Vic) — and non-statutory powers, namely the Crown’s residual royal prerogative and the capacities shared with natural persons and corporations sole. In this regard, while the 1994 Act provides for the power to prosecute, it does not otherwise touch on the DPP’s broader operations, including the power to raise complaints. Thus, any power to raise a complaint is derived from its capacity as a legal person, which is inherent in the case of informal complaints, and formally regulated by s 5 of the JCV Act in Victoria. But, it is well understood that the scope of executive capacity is more limited than that of other legal persons because its exercise will always carry greater constitutional implications.
In George Winterton’s book, Parliament, the Executive, and the Governor-General (Melbourne University Press, 1983), it was suggested that the capacities analogy is imperfect because ‘governmental action inevitably has a far greater impact on individual liberties’ (p 121). Thus, while both might have a capacity to spend, the fact that the executive government is spending public money has been a reason to restrict its power absent legislation (Williams v Commonwealth at [60] (French CJ)). In reaching this conclusion in Williams, French CJ cited Winterton’s argument and preferred a restrictive view to executive power where its reliance on a capacity was inherently different to reliance by natural persons (at [25]; see also [214]–[216] (Hayne J), [316] (Crennan J)). Additionally, in Plaintiff M68 v Minister for Immigration and Border Protection, Gageler J noted in obiter that where executive power is in conflict with fundamental principles, including the relegation of that power to other branches of government, such as the judiciary, this may give rise to a constitutional incapacity to rely on that power, as in the case of executive detention (at [159]).
In this vein, the normative considerations which attach to the executive applying illegitimate pressure on the judiciary suggest that a capacity to raise complaints against judges cannot be extended to executive bodies without some modification or restriction. For example, in an extreme scenario where the executive persistently resorts to or abuses the complaints procedure so that the looming threat of complaint has the real possibility of causing a judge to ‘hold back’ from deciding cases with fearless independence (whether consciously or not), there is a real danger that this would impair judicial independence and the duty of inter-institutional comity envisaged by Kavanagh. Further, this argument draws weight from the rationale in Kable v Director of Public Prosecutions, in which the High Court held that constitutional restrictions must be put in place to protect judicial impartiality and independence as an essential characteristic of State and Commonwealth courts. While this scenario has never been tested in court, it is prudent that the executive exercise restraint before making a formal complaint against judges to avoid approaching the uncertain territory where separation of powers concerns might arise.
Alternate means of ensuring judicial accountability
The executive is not limited to raising a formal complaint to ensure judicial accountability. Rather, there are other legal and non-legal means available, which should be considered before a formal complaint is made.
Legal mechanisms
First, it is improper to raise a complaint about a judge where that complaint relates merely to a disagreement with the judge’s decision in a particular case. The various statutes dealing with the conduct of each state’s judicial commission are clear about this. In the case of Victoria, the JCV must dismiss a complaint if it is satisfied that ‘the matter relates solely to the merits or lawfulness of a decision or procedural ruling made by the [judge] concerned’ (JCV Act s 16(3)(b)). It is also elementary that the proper functioning of a judicial system relies on a general acceptance of the finality of judgments, subject only to a formal right of appeal, and informal complaints about the propriety of judgments, especially from other public bodies, undermines this necessary finality.
Secondly, if the complaint is in the nature of an accusation that the judge is or may be biased, there are other avenues of legal recourse which should be pursued instead of a formal complaint. If a party to litigation believes that the decision of a judge is affected by actual bias, or a reasonable apprehension of bias, they should make an application for the recusal of the judge from the matter (CNY17 v Minister for Immigration and Border Protection). If a party only learns of the circumstances giving rise to the apprehension of bias after the decision has been made, an application can be made to set aside the decision (Tahmindjis v Brown).
It is worth noting that it is generally not possible to bring a civil claim (Sirros v Moore) or a criminal prosecution (Fingleton v The Queen) against a judge for acts done by him or her within his or her jurisdiction. The common law, and, in some instances, statute, affords this immunity. Despite this, a claim for false imprisonment was recently brought successfully against Judge Vasta, of what was then the Federal Circuit Court (Stradford v Vasta; on appeal to the High Court). Such a claim was only possible because, unlike most state and territory inferior court judges, federal inferior court judges were not afforded the same immunity as superior court judges. This gap has now been remedied by legislation: Federal Courts Legislation Amendment (Judicial Immunity) Act 2023 (Cth). Of course, to the extent that civil or criminal claims might still be brought in exceptional cases against a judge for conduct in office, for example for bribery, the need for restraint by the executive is a fortiori, as compared with making a formal complaint.
Non-legal mechanisms
In general, it is appropriate that the judiciary is self-regulating, because this best protects judicial independence. It follows from this that any issues the executive has with a particular judge should primarily be raised with the judiciary itself, usually by contacting the judge’s head of jurisdiction, to be dealt with as an internal matter (see, eg, here). Indeed, former Chief Crown Prosecutor, Gavin Silbert KC, has said that this is ordinarily the practice where a dispute arises between the DPP and a judge. We suggest that this practice should continue, except in extraordinary circumstances
Conclusion
The question as to whether it is legitimate for the executive to bring a formal complaint against a judge raises important issues beyond the merits of any particular controversy, bringing into focus normative considerations as to what the relationship between the executive and judiciary ought to look like. It is a question that merits careful consideration in the current legal climate, given how tensions between the DPP and the judiciary have escalated in recent times not only in Victoria but also in NSW where the DPP has foreshadowed making a complaint to the Judicial Commission against Judge Newlinds SC in regard to his criticisms of the prosecution in R v Martinez (for developments since then, see here).
In this post, we have argued that respect for judicial independence and the integrity of the constitutional partnership which underpins the administration of criminal justice demands that formal complaints made by the executive against judges be the exception rather than the norm. The accountability of judges, we suggest, is best enforced through mechanisms internal to the judicial system (such as appeals, recusal applications and self-regulation) in all but exceptional circumstances, as these avenues best uphold the vital culture of ‘inter-institutional comity’ (Kavanagh, p 98) between the executive and the courts.
Jerry Leung, Maxen Williams, and Kevin Zou are LLM candidates at the University of Cambridge.
Suggested citation: Jerry Leung, Maxen Williams, and Kevin Zou, ‘Executive complaints against judges’ (11 April 2024) <https://www.auspublaw.org/blog/2024/4/executive-complaints-against-judges/>