We are ruled by laws and not by men (or women)
One manifestation of the Rule of Law is that well known adage “A government of laws, and not of men”. Nineteenth century legal authority AV Dicey in his 1885 Introduction to the Study of the Law of the Constitution declared:
“[The Rule of Law] means in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of widespread authority on the part of the government.”
One of the American founding fathers and signers of the Declaration of Independence, James Wilson, said during the Philadelphia Convention in 1787 that,
"Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect."
Judges rule on the law, and the jury on the facts.
One manner in which this prerogative is controlled for senior public servants is to deny judges the right to declare verdicts in serious# trials where freedom or important possessions are at stake. This authority is rightly left in the hands of the jury, that cross section of the general public.
A commonly heard adage with regards to how criminal prosecutions should progress is that judges rule on the law but it is the jury that rules on fact. Judges rule on the procedure of a trial, what evidence should be allowed, who may speak and when they may speak, but it is ultimately up to the jury, and only the jury, to decide who is telling the truth and what the facts of the case, guilt or liability (for civil cases), are best believed to be.
That it were so.
Lady Justice lifting her blindfold
In 2002 in a defamation civil trial in Melbourne, Victoria, after all the evidence had been presented and expensive barristers had said their piece, the jury eventually came to the decision that the comments made by the defendant, which initiated the action, were reasonable under qualified privilege because, in commenting on a public official it was free speech. This was too much for the trial judge who took it upon himself to overrule the jury and award damages and costs for the plaintiff (a fellow judicial officer) in the amount of $646,0003.
At present under state wide criminal law, a judge can rule half way through a trial when the prosecution has completed presenting its case that “there is no case to answer”, and arbitrarily direct the jury to acquit the accused. Alternatively if the trial should proceed to a jury decision of guilt, the judge can still declare an acquittal by overruling the jury. Where a conviction has been upheld by the court, an appeal to a higher court, strictly on the evidence before the jury, not on an issue of law such as an invalid search warrant, can not only lead to an overturning of the jury decision but also a ruling of an acquittal4.
In 1994 the HCA in M v The Queen  HCA 63, allowed the appeal on a criminal conviction where the defendant had been convicted of the statutory rape of a 13 year old girl. The NSW Court of Criminal Appeal upheld the verdict but when reaching Australia’s highest court, the majority of four of the seven judges declared the jury was wrong and they were right on nothing more than reading the transcripts of the case.
That specific aggregate amount of evidence?
An argument used in defending this arbitrary use of judicial power is to declare that the judge (or judges if an appellate court) is not manifesting his or her opinion as to the guilt of the accused, but declaring, as a point of law, that there is insufficient evidence for a conviction.
This, in certain circumstances, can actually be true. At various times and in various jurisdictions there have existed criminal laws which mandated a quantitative amount of evidence before a defendant could be convicted. For example there have been jurisdictions where a person accused of rape could not be convicted on the uncorroborated testimony of only the alleged victim.
In such a situation where the accused had been found guilty solely on the victim’s testimony, then as a point of law, that conviction would be false.
But for judges to say that the aggregate of all the various pieces of evidence against the accused put together would fall short of some indefinable line of sufficiency, but yet somehow stated by law, would simply be hogwash.
Inculpating evidence can come in a myriad of forms, the eye witnesses to earlier threats, the evasive manner in answering questions from the witness box, the lack of an alibi at a day of the week when one would normally have one, the spurious explanations for unnatural actions relating to the crime, the instances of poor anger control, the alleged motive, the coincidence of other circumstantial and direct, albeit minor, evidence.
It is ridiculous to declare that a quantitative sum can be made of all this so as to come to some number of units, above of which, sufficiency of inculpating evidence can be declared.
All the judges are doing is saying that where the jury found guilt from all the evidence, they found a not guilty verdict, and because they are judges, then they must be right and the twelve jurors wrong.
Even apart from the issue of democracy as previously referred to, they may be better arbiters of law, but there is absolutely no reason why one, or even three judges should somehow be better arbiters of fact than twelve men and women of a jury.
I see less but I still know more.
What is further surprising about this is that very often an appeals court will only act on the same evidence that was presented to the jury. In these cases not only do they have no more to go on than the original jury but in effect it is actually less evidence upon which they decide that the jury was wrong and it is they themselves who can see things more clearly. This is because everything they learn about the proceedings is brought to them in transcripts. They actually do not benefit from first hand watching and hearing the accused and the witnesses as they give evidence through both direct and cross examination.
In fairness to the courts, as much as it is difficult to see how judges who did not attend the trial could view themselves as better deciders of fact than actual evidence witnesses, legislation in some jurisdictions (such as NSW and the UK) actually authorise them to take such liberties. For example, Section 6(1) of the NSW Criminal Appeal Act allows the court to allow an appeal if “the verdict of the jury ... is unreasonable, or cannot be supported, having regard to the evidence”
Up until the recent modifications in the law between 2006 and 2012, the law in Australia was that under no circumstances could a person be tried twice for the same offence. Whatever popularity the law had, it lost it with the egregious High Court case of R v Carroll  HCA where the High Court not only acquitted a defendant two juries over a decade apart had found guilty, but also excused him of perjury. The law was criticised from then Prime Minister John Howard, to former Chief Justice Anthony Mason, various state premiers to even Britain’s then Home Secretary David Plunkett. Yes, the legal / academic complex was against change but few other parties. It was a popular cause almost all politicians, Labor and Coalition, wanted to attach their names to.
Unfortunately, the ‘reform’ the public ultimately received fell far short of expectations. This is evidenced by the simple fact that since 2006, when Queensland was the first of all states to institute change, there has not been a single case of someone being acquitted and then subsequently prosecuted again, let alone convicted, for the same criminal charge. This in a period where, according to ABS statistics, there have been over 5000 acquittals in criminal trials for serious offences.
One reason for the lack of repeat prosecutions is the number of curious legal stipulations excluding clear evidence of certain administration of justice offences, while the other being the subjective nature of some of the decisions the appellate court has to make so as to justify a repeat prosecution. Examples would be if the prosecution has acted with due diligence; if there has been a substantial length of time since the original offence; if there were serious threats of harm accompanying the crimes of rape and armed robbery; or, the one most subjective of all, whether or not “in all the circumstances it is in the interests of justice”.
In the famous (some would say infamous) Australian High Court case of Carroll v The Queen of 2002, which involved the contentious issue of double jeopardy, the High Court overruled the decision of a jury, as well as the Queensland Court of Appeal, by acquitting the accused from a conviction of perjury for lying in an earlier murder prosecution. In handing down their decision, their honours, due to the alleged double jeopardy concept, criticised the prosecutor for bringing the accused again to court after he had been exempted+ from a murder charge , even though admitting he was completely within the law when doing so. They then used their equity law prerogative to change the law so as to make such action retrospectively^ illegal.
Equity law is a hangover from our English common law heritage dating back centuries whereby an Equity Court judge had the authority to not just modify existing common law to adapt to contemporary times, but in fact to create new law if perceived “unconscionable” conduct had occurred. Considering democracy at the time was in a very primitive stage, if at all, and the law maker was otherwise only the king, it was probably held to be a better process to grant this power to those judges than to petition the crown for every instance it may have been thought necessary. As we today not only live in a full suffrage democracy, but also have access to a modern media where all issues can be easily discussed, it would seem highly unsuitable, not to mention undemocratic, to maintain this anachronistic practice, where judges, at their whim, have the power to create new law.
How things should be
Nowhere in the (civilian) criminal justice system is there a situation where, rather than by a jury of his peers, an accused can be convicted of a serious crime on the opinion of a judge or judges. For a serious crime, a judge can not, and should not, have the power to declare someone guilty. This is not only a manifestation of democracy but also of that facet of the Rule of Law which limits the range of powers that officers of the law should be allowed to possess. The judiciary shall rule on the law but it is only twelve of the accused’s peers who rule on what is fact and who ultimately decide on guilt.
If the law is to act on a level playing field and treat both parties equally then the same principles should also apply in the alternative application. If judges do not have the power to declare that those they do not like are guilty of crimes, then they similarly should not have the power to declare that those they favour are free from answering for alleged crimes.
Controlling the power of judges to create law, or make arbitrary decisions of fact.
- Where there has been a successful appeal against a criminal conviction, an appellate court should not be able to do more than return a defendant for retrial; it should not have the power to declare an acquittal.
- Where a committal hearing presided over by a magistrate or judge has declared that there is insufficient evidence to make a person stand trial*, a prosecutor (public or private) should always have the right to request that a grand jury of 23 members of the public be summoned to confirm that decision; perhaps at the expense of the prosecutor.
- Where there has been a jury decision to convict, the judge shall not have the power to overrule that decision by making a highly subjective ruling that there was insufficient evidence to support it.
- Where a person previously acquitted of a crime has again been presented by the prosecution for a further trial for the same offence, it should not be a member of the judiciary, but a grand jury to decide if there is reasonable evidence presented and that it is also in the interests of justice for the prosecution to proceed.
- The only parties responsible for creating law should be either parliament, or in passing referenda, the people.
*Granting the court power to declare whether or not there is sufficient evidence in a committal hearing is acceptable simply because it is the cheapest and most expedient method.
# In Magistrates Courts, the ruling magistrate does have the power to declare guilt. This is simply due to expediency. It would be highly impractical to administer jury trials for the very high number of appearances of those who are suspected of committing only petty crimes.
+ Convicted by the jury but acquitted by an appellate court.
^ Not only does Equity Law violate the Rule of Law by violating the ‘a government of laws, not of men’ adage, but it also violates the prospective concept of law making. That is: no person can be held to account for contravening a law that was not in place at the time of the related action.