Judicial interference

Several of the examples included below set out matters where the questioning by the judicial officer has caused the trial to miscarry, in particular because the interference seemed to be “directed to establishing a point which is favourable or adverse to one or other of the parties”

Dealing with judicial interference is perhaps one of the more delicate and difficult jobs that face an advocate.

As a starting point, judges are entitled (and in some cases in the authorities, encouraged) to ask questions so as to clarify evidence that falls from witnesses.

However, excessive interference and questioning can quickly reach the point where it's improperly interferes in the fair and proper running of a trial will stop this danger is particularly acute when the matter is conducted in front of a jury, who will naturally be looking for guidance and indications from the judge.

Several of the examples included below set out matters where the questioning by the judicial officer has caused the trial to miscarry, in particular because the interference seemed to be “directed to establishing a point which is favourable or adverse to one or other of the parties” (R v Coe [2002] NSWCCA 385)

It is of course vastly preferable that clarification be achieved by leaving it to counsel, which can often be achieved by the judge raising his or her concerns in the absence of the jury and directing counsel's attention to the apparent ambiguity (R v Thompson [2002] NSWCCA 149).

 

Galea

Galea v Galea (1990) 19 NSWLR 263

Summarises previous authorities regarding judicial interference

“Had his Honour remained silent despite his developing opinions, the appellant might have had a legitimate cause to complain that he was not given an opportunity of correcting these opinions. He might then have been afforded no opportunity to meet the judge's developing view that the appellant was temporising, unduly technical and presenting a demeanour destructive of the acceptance of his credibility… Some of the judge's comments and questions were blunt and even robust. Whilst politeness in court is a virtue, departure from that standard will not necessarily require appellate correction”