I once knew a judge whose smile was upside down. The corners of this person’s mouth almost reached the jaw line. When I first noticed this, I thought the condition must be neurological. Then I noticed it in many judges, so it must have been contagious.
If inverted happiness is a judicial condition, what causes it? What is its relationship to sadness? Sadness should be unknown among judges, as they have chosen to have reasonably secure employment without any of the pressures of running a law practice. They can approach each case without a care in the world. Which side wins or loses should be of no concern whatsoever to the well-balanced judge.
But there are some pressures on judges, although they are pseudo-pressures, invented by people who care about time and motion efficiency. Judges are closely policed by such officials. It would be scandalous now, whereas I can remember when it was unremarkable, for a courtroom full of counsel, clients and their supporters, to wait until as much as an hour for a judge to return from a long wet lunch at the club.
Judges are supposed, nowadays, to make rapid decisions in the summary jurisdiction. There will be some lawyers still in practise who can remember a judge in Auckland who, after hearing all the witnesses in summary cases, would spend 20 minutes or so sitting in silence at the bench, presumably mulling over the evidence, before delivering oral verdicts that almost invariably resulted in convictions. That judge, like nearly all judges, was a thoroughly decent person, and no one would have thought of complaining about such a leisurely approach to judicial work.
Now, judges are supposed to engage in “case management”. This is an invention of time-and-motion experts who apparently had little appreciation of the importance of judicial disengagement with trial preparation. Accompanying this is an unrealistic expectation that each side of a criminal case will cooperate with the other to achieve efficient disposal of a case, as if it were a civil matter.
We didn’t used to have disclosure requirements (except for notice of alibi), and defence counsel would not expect to be given any information about the conduct of the preceeding investigation. All that could come out in voir dire hearings, which, if they were used at all, occurred during trials. But now there seems to be immense fear of inconveniencing juries by sending them out of courtrooms while voir dire hearings, which can be quite lengthy, are held. Such hearings are now usually held before trials, and are scheduled in separate case management hearings. Case management tends to generate multiple pre-trial hearings, as judges are now expected to care about whether a defendant pleads guilty before trial so that trial schedules are not disrupted by unexpected guilty pleas.
Defendants are given incentives to plead guilty before trials. Aside from jeopardising counsel’s income, pre-trial guilty pleas presuppose adequate disclosure of information about the way evidence was obtained, and encouragment of such pleas is assumed not to place improper pressure on innocent people to plead guilty. That presupposition and that assumption are quite unrealistic.
With lengthy lists of cases awaiting trial, pressures on judges to place pragmatism above careful conduct of trials according to law, can result in case management becoming case mismanagement.
A reminder of the need to lawfully conduct case management of trials is given by the Supreme Court of Canada in R v Haevischer, 2023 SCC 11. I do not suggest that any of the thoughts I have set out above reflect what actually happened in this case, but it does illustrate an incorrect approach to a refusal in case management to set down a defence application for a stay of proceedings prior to trial. A refusal to do that is only lawful if the application is, in Canadian law, “manifestly frivolous”. The Court, in a unanimous judgment, explains in detail what that threshold means. Every judge who works in the criminal jurisdiction should study this judgment.
