Lady Justitia
The Rule of Law

The Rule of Law is that doctrine of English Common Law espousing in essence two ideals of liberalism derived from The Enlightenment: equity and due process. It does not necessarily imply democratic or just rule, but simply stable government where the law is proclaimed, followed, and applied equally to all.

  • All people are subject equally to the privileges and penalties of the law.
  • The people are ruled by laws and not by men (both the judiciary and the executive are to act only according to law rather than to their own values and beliefs of what is justice).
  • The law shall be prospective, visible, clear, ex ante (gives predictable outcomes), and relatively stable.
  • Due process must be afforded to all those before the law (e.g. Habeas Corpus.)


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 accblindfoldused. 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 [1994] 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. Similarly, in R v Carroll (1985) 19 A Crim R 410 the Queensland Court of Appeals overturned a jury murder verdict and acquitted the accused on nothing more than the evidence before them.

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”

Double Jeopardy

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 [2002] 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”.

Questioning Double JeopardyDoubleJeoardyReform.Org



Equity Law

 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.


All people are subject equally to the law

 In a liberal democracy the concept of equality means that when the law is applied, it must apply equally to all people. Both common people and their rulers are equally liable for any negligent action, crime or misdemeanour committed. Politicians have been convicted for all manner of crimes and even then Prime Minister R J Hawke once got a citation for not wearing his seatbelt when being driven in his ministerial car.

However, for those of influence within the hierarchy of power one way to get around this principle is to simply declare exceptions when making the law in the first place. This hardly accords with the principle espoused in the Rule of Law, but it does allow a legal loophole for those deemed privileged enough to be treated differently.Animal Farm by George Orwell

To paraphrase George Orwell: All citizens of the state are equal, but some citizens are more equal than others. Some Examples:

Judges can’t be sued for negligence in court

“Judges enjoy, as a matter of public policy, substantial immunity from civil and penal sanctions for erroneous decisions.”
erstwhile Chief Justice HCA Murray Gleeson
Sirros v Moore [1975] QB 118; In re McC (A Minor) [1985] AC 528; Yeldham v Rajski (1989) 18 NSWLR 48, A Olowofoyeku,Suing Judges, A Study of Judicial Immunity (1993) at 74-77.

Magistrates and judges can’t be prosecuted

Incredible as it might seem, the High Court of Australia in 2005 overturned a jury guilty verdict against Queensland Magistrate Di Fingleton for the crime of intimidating a witness (nothing to do with a court proceeding but a witness in an administrative matter), due to the fact that, by law, magistrates and judges are allowed to commit crimes in the course of their professional duties.

Fingleton v The Queen [2005] HCA 34

Chris Merritt, ‘Judicial immunity needs an overhaul’, The Australian 4 July 2005 

Advocates’ ImmunityAdvocates' immunity

Barristers can’t be sued for negligence in court

The doctrine of ‘advocate’s immunity’ means that lawyers are protected from a charge of negligence that is intimately related to litigation, meaning that negligence whilst in the courtroom, or work out of court which leads to a decision affecting the conduct of a case in court, is beyond the reach of a lawsuit. So you can sue your lawyer because of the way he drafted your employment contract, but not for any work where, from the start, the intention was to go to court.

Australia is the last country in the world to retain advocates’ immunity. Canada abolished it in 1861, England in 2000, and the United States and Canada have never had it. As recently as 2005 the Australian High Court has addressed the issue in DメOrta-Ekenaike v Victoria Legal Aid[2005] HCA and confirmed (albeit with the dissent of Kirby J.) the reasons given previously in Giannarelli v Wraith (1988) as to its alleged justification.

“at common law, barristers and solicitors are immune from liability for negligence in the conduct of court work or work out of court, that leads to a decision affecting the conduct of a case in court”

The fact that all other jurisdictions, including the UK, the foreign one most cited by the HCA, have dispensed with the concept, and that granting any citizen perpetual immunity in their profession blatantly violates that adage of the rule of law that no one is above the law, has apparently not deterred Australia’s highest court to maintain this so-called principle in both criminal and civil jurisdictions.

Defences of the law together with responses

What’s good for the goose

“The first reason [expressed by the majority in D’Orta-Ekenaike] was that everyone is entitled to the immunity: including judges, jurors and witnesses, which has existed for centuries. The court noted that a disappointed litigant cannot sue a witness that did not perform well in court, so why should they be able to sue their lawyers?”1

  • Two wrongs don’t make a right. Violating the Rule of Law concept of everyone being accountable to our laws of negligence, by granting others in the courtroom immunity, is hardly justification to also grant it for barristers.
  • As stated by dissenting Justice Kirby in D’orta, “The supposed analogy to the immunity afforded to judges, jurors and prosecutors breaks down under a moment's examination. None of these persons owes any duty of care to a litigant.”
    Even though there may be some duty of care with a judge, it is quite obvious that the major duty is with the defendant or plaintiff’s chosen and paid representative. With witnesses and jurors, it is difficult to see any duty at all.
  • A witness is mostly just a witness answering questions. They have not accepted any responsibility to perform a specific function, and especially not at $200.00 per hour. But where they are paid, it is still the job of the barrister to pre-interview the witness and prepare how the witness’s testimony will be relevant. It is not the role of the witness to specifically defend the barrister's client or to debate opposing counsel during cross examination.
    It is true that a witness is free to make slanderous comments in court, but this is to abide by the principle, also practiced in parliament, that because of the importance of getting to the facts of the issue, there should be nothing intimidating the speaker from declaring what he/she believes to be the truth. Witnesses can still be prosecuted for perjury if knowingly false testimony can be proven to have been made.
  • Where jurors might accept bribes, or fall asleep in court, is a situation which can be addressed, and possibly will lead to a new trial as well as prosecutions where relevant. But after that it is ridiculous to claim a juror could have behaved negligently. They are not required to research the case (in fact, not allowed), and neither call nor interrogate witnesses, but all the evidence and arguments are handed to them on a plate. Unlike even the judge, they are not permitted to make a quick ill-considered call, due to the fact that their decision must be the same as every other member with them in the jury room.

Certainty and Finality

“The central justification for advocates’ immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances.
The law aims at providing the best and safest system of determination that is compatible with human fallibility. But underpinning the system is the need for certainty and finality of decision.” Majority in D’Orta

  • To begin with, their honours may have included the limiter “except in a few narrowly defined circumstances” but the fact of the matter is that finality of bench or jury decisions simply does not exist, and especially not in the criminal justice system. ‘Closing the book’ is patently false. Our law accommodates a very comprehensive and accessible appeals process for those criminal defendants who think they have received an unfair result. In criminal law verdicts can and are overturned if sufficient evidence or argument can be presented and it is not that rare for a defendant to be tried three times for the same crime. Pick up any law student’s text book and the opening dozen pawashing handsges will list tables of cases to be studied, in that one subject, most of which would have progressed from a court of first instance to appellate court/s.
  • Secondly, one wonders why there is a virtue in “finality of decision.” One would think that the ultimate goal is always to do right; that no matter how long it takes, justice should always have the opportunity of being served. One common adage associated with the legal system of most countries is: ‘Justice must not only be done, but be seen to be done.’ Are we a nation of Pontius Pilates wishing to wash our hands of any affair that may have already attracted our attention and occupied our court resources for a set period of time.  It is hard to imagine any other field of human endeavour where, subject to availability of resources, finality is given greater accord than integrity of outcome.

Public confidence

“public confidence in the administration of justice is likely to be impaired by the re-litigation in a negligence action of issues already judicially determined.”   McHugh in D’orta

  • It is true that public confidence in the administration of justice is extremely important, however what Justice McHugh suggests is the way to attain that seems most surprising. If a barrister is successfully sued for what has been shown to be highly negligent representation in an earlier court case, this may well show that justice was not served in that earlier case. This would lead to a slight lowering of public confidence in the system concurrent with a slight increase in inclination towards vigilantism.  However what is the good High Court justice’s response? Well if there is sometimes bad advocacy in court leading to miscarriages of justice, then the obvious thing to do is:
    • A. attempt to cover it up, and
    • B. ensure the person responsible is not punished for his bad behaviour.
  • Why does it not occur to authorities that if a client successfully sues his advocate for bad representation, ensuing damages payment will partially or fully compensate for justice originally being denied him? Yes, the secondary action will be in contravention to the earlier court case, but why is that, per se, a serious problem?
    Law makers must have sufficient confidence in the good judgement of the general public to believe that they will view the criminal justice system as a whole, and as long as a court can grant amends to the harmed party from an earlier trial, they will tolerate these human foibles and mistakes that sometimes inhabit the process.
    True, most losing litigants in civil court at first believe they have been hard done by and might be tempted to bring an action against their representatives, but the fact that most actions would be without merit is not justification to deny the few meritorious. Besides, in time the awareness of the cost of further litigation would cool most grievances.
  • As the Melbourne Herald Sun reported2 in 2012, a mentally incapacitated Vietnam veteran took his erstwhile barrister to court for damages caused by his negligence in obtaining $675,000 less than what his divorce settlement should have been. Justice Kevin Bell agreed that not only was his counsel negligent in his required duties to his client, but also of the amount lost. Unfortunately however, in his ultimate ruling Judge Bell dismissed the action due to Advocate’s immunity, and to add salt to the wound he also awarded $68,000 costs against the 68 year old invalid pensioner.
    And yet, under current law, we are asked to believe that “public confidence in the administration of justice” would be enhanced by the outcome of this case, but deteriorated if there was an alternative result whereby the negligent law firm was asked to pay for losses that occurred to the innocent pensioner.


 1. Ugur Nedim, ‘What is Advocate’s Immunity’, NSW Courts, site of law firm Sydney Criminal Lawyers     at
 2. Norrie Ross, ‘Ancient law lets negligent firm dodge $975k payment’, Herald Sun, 14 Mar 2012
Ancient Law Lets Negligent Firm dodge $975K payment
4. Section 241.2(b) (mid trial) Criminal Procedure Act 2009 [Victoria] (updated 2018)
     Section 276.1(a) (post trial) Criminal Procedure Act 2009 [Victoria] (updated 2018)

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