Recent events in the Northern Territory have highlighted the stresses that can emerge in the administration of justice—not only for those that appear as defendants or as witnesses—but also for the lawyers, police prosecutors and court staff essential to the conduct of court proceedings and the administration of justice. Less is heard about the stresses that impact upon the lives and work of judges, in both the Local and Supreme Courts.

As I reported here last week in relation to complaints against a judge of his court, Chief Judge Dr John Lowndes of the NT Local Court found that the judge in question:

… has not demonstrated the courtesy, tolerance, patience and sensitivity which, in accordance with the AIJA Guide to Judicial Conduct, should necessarily characterise the discharge of the judicial function,” Dr Lowndes said. Examples of this were comments made that were gratuitous and unnecessary and remarks that Dr Lowndes found displayed a lack of judicial temperament. “The judge has been found to have engaged in inappropriate judicial conduct, which is unacceptable,” Dr Lowndes said. “It detracts from the proper performance in the matter at hand, specifically, and it reflects poorly on the courts generally and brings the judiciary into disrepute.”

The field of professional traumatology involves the examination of symptoms and diagnoses that are given a variety of technical descriptions—secondary traumatic stress, compassion fatigue, compassion stress, vicarious trauma, judicial stress and depression. However they are described, they are all related—or parallel to—post-traumatic stress disorder (PTSD).

Illustrating the pervasive effect of these stressors on those in court, Peter McGrath SC, an experienced criminal barrister, related his experience of a particularly distressing sexual assault case to the Law Report on the ABC’s Radio National:

… and during the trial I can remember different stages, at one stage the officer in charge was giving evidence before the jury and just burst out crying in the witness box and couldn’t go on and we had to adjourn. At another time, the judge’s associate, and she was a very experienced woman who had seen a lot of trials, she was unable to come into court, we had to adjourn because she was very affected. At one point the court officer, who was a crusty old fellow who had been in so many cases and heard it all, he was…we couldn’t start the call one morning and where was he, he was in the corner of the anteroom and he was just sitting on his chair and weeping and shaking his head and saying, ‘Those poor boys, those poor boys.’ And I was thinking, God, who’s next?

Also worthy of particular note are the deeply personal perspectives of judicial stress and work-related depression presented by Justice Shane Marshall, formerly of the Federal Court of Australia. In 2014 I was fortunate to assist with the conduct of a continuing legal education session with Justice Marshall at the NT Supreme Court in Darwin.

In his seminal 2014 overview of judicial stress and bullying published in a special Wellness for Law edition of the QUT Law Review, former High Court judge Michael Kirby observed that:

Many male lawyers still feel that talking about stress, pressure and depression is an admission of personal inadequacy or weakness. Or that it is embarrassing or irrelevant. They are afraid that they will be seen as ‘sooks’ or ‘cry-babies’. This is something men, from early childhood, have been told they must never be. As Neville Wran QC once famously observed in a political context: “Balmain boys don’t cry.” The equivalent professional motto seems to be: “Barristers don’t blub”; “Lawyers aren’t lachrymose.” We have to move beyond this.

I’ll return to the issue of judicial bullying in a future piece.

Michael Kirby’s paper notes a 1997 address by him to the annual meeting of Supreme and Federal Court judges in Brisbane. In that paper “Judicial Stress – An Update” he recounted a number of then recent cases of judicial “crack ups” in north American Federal and State courts. Of examples closer to home, Michal Kirby noted several instances involving judicial officers exposed to great public stress, here specifically from New South Wales:

Chief Magistrate Murray Farquhar; Justice Lionel Murphy; Justice David Yeldham (who committed suicide after untested allegations were made against him in State Parliament). Later were to come Justice Vince Bruce and two magistrates against whom removal proceedings were commenced following adverse reports of the Judicial Commission of New South Wales.

Michael Kirby’s observations attracted vehement condemnation from some of his judicial colleagues (see his typically robust & well-considered reply here).

Thankfully, at least in the larger Australian jurisdictions, recognition of the impacts of judicial stress have moved on, though, as Carly Schrever, a lawyer and judicial wellbeing project adviser at the Judicial College of Victoria observed in 2015, judges largely remained silent on the topic for many years.

The reluctance of judges and the courts to discuss judicial stress is understandable. Judicial office is a privileged position, and the complaints of the privileged are not typically met with great public sympathy. More than this, the judicial function imposes superhuman expectations on judicial officers to represent perfect wisdom, temperance and insight, and restore justice and truth to complex and broken human circumstances. It is perhaps unthinkable that those who stand in judgment on others might themselves be human, and subject to human vulnerabilities.

In recognition of the specific needs of judicial officers, the Judicial College of Victoria has established the Judicial Wellbeing program. In addition to the production of resources on judicial stress, mental health and well-being, it operates a dedicated Judicial Officers Assistance Program that provides a 24 hour free and confidential counselling service exclusively for Victorian judicial officers. A similar program, the Judicial Assistance Program, operates in New South Wales.

In addition to the useful therapeutic resources offered at the Judicial College of Victoria website there are also links to a number of papers and research reports.

One recent paper that caught my attention was developed from a presentation by New South Wales magistrate David Heilpern to the Tristan Jepson Memorial Foundation, an organisation established to address mental illness issues as they affect law students, graduates, practising lawyers, and judges. Since 2006 the University of New South Wales has presented the annual Tristan Jepson Memorial Lecture.

In his 2017 Tristan Jepson Memorial Lecture, entitled Lifting the Judicial Veil: Vicarious Trauma, PTSD, and the Judiciary – A personal story, David Heilpern notes that:

There is a veil based on assumptions regarding judicial officers. The sooner that veil is lifted, the sooner judicial officers can admit to difficulties, access help and better serve the community.

David Heilpern’s account is impressively self-aware and brutally frank. After detailing several harrowing personal collisions with his own work-related stressors and reflecting on the resources available to him and his judicial colleagues, Heilpern identifies several other issues that need to be identified and addressed. Exposure to trauma, particularly through the increased use of  audio-visual technology has resulted in the establishment of protocols to protect him and his staff from exposure to the more graphic still and video images.

Decision fatigue—an area Heilpern says has barely been researched— is another area of concern.

… in my view there is a fair chance that each exponentially affects the other. In the Local Court, on my current circuit I have four list days per week. Most of those involve in excess of 100 cases. On average I will have over 15 people in custody, and deal with around eight bail applications every list day. I will have fifteen to twenty coronial matters on the boil inevitably involving gore and grief.

Related to the issue of fitness to continue to sit as a magistrate are the statutory barriers to disclosure that may discourage judicial officers from self-reporting mental health issues. Here Heilpern refers to the provision in the Judicial Officers Act (NSW) that provides that where a judicial officer is assessed by the Conduct Division to be “physically or mentally unfit to exercise efficiently the functions of a judicial office” he or she can then be the subject of a report to the Governor and a subsequent parliamentary vote of both Houses to determine dismissal. Two magistrates in the last decade survived a parliamentary vote after the Conduct Division referred the matters for misconduct in office, though, as Heilpern notes:

Both magistrates made references to mental health issues in their address to parliament. One had undiagnosed bi-polar disorder, and the other explained her conduct in part by reference to a change in her depression medication.

Other issues identified by Heilpern include threats to personal and family security, the inherent loneliness of judicial office and the urgent need for further targeted research.

Implicit in all of this is that the courtroom is a workplace. Court staff are public servants employed by an arm of the government, lawyers may come from government solicitors’ offices or the Director of Public Prosecutions, private law firms, community legal services and as sole practitioners. Their employers are subject to relevant State, Territory and Commonwealth occupational health and safety legislation.

Judicial officers however, are distinct and very different and, while the above mentioned referral functions in New South Wales may act as a last-resort brake on judicial unfitness for office, it is arguable that this may not be enough to comply with contemporary legislative standards of workplace democracy and community expectations and practices that require finer-scale checks on poor conduct, particularly in court.

These issues are beyond the scope of this piece, but considerations of the pastoral care responsibilities of Chief Judges-constrained as they are by the restrictions inherent in the need for strict judicial independence and individual work practices and the functions of bodies like judicial commissions and the role of appellate courts in correcting judicial behaviour are all issues that require further consideration.

That is all I have for now on this subject. If you have any comments please register and post them below. I welcome your thoughts.

I’ll next turn my mind to the consideration of the separate, but closely related issue of judicial bullying. Useful in this regard are Michael Kirby’s 2014 paper, Judicial Stress and Judicial Bullying and the latest edition of the Guide to Judicial Conduct, published by the Australasian Institute of Judicial Administration (the AIJA).

On that note I’ll leave you with this reflection by Micheal Kirby on his own experiences as a young practitioner.

In my earliest days of legal practice, as a young articled clerk, I saw angry judges. I saw bullies. Judges with favourites. Nasty performers. I also saw excellent judges, who had fine judicial temperaments. Amongst the good I would name Judge Theo Conybeare and Judge Colman Wall, each of them of the then Workers’ Compensation Commission (NSW).

Amongst the terrifying judges, whom I prayed to avoid, were Justice Edward (“Dumbo”) Dunphy of the Commonwealth Industrial Court, Justice Freddie (“Funnelweb”) Myers of the Supreme Court of NSW, and Justice J J (“Black Jack”) McKeon of the Industrial Commission NSW.

By and large, the legal profession gets to know judges who are seriously unsuitable to judicial office, either because of intellect, temperament or lack of judgment. In my youth, there was virtually nothing that could be done to secure redress against such judicial officers except to appeal against their orders or to resolve to try to do better, if ever a judicial appointment came one’s way.

=======================================

This is the third piece in a series concerning judicial conduct in the NT and beyond. The first, ““People work. People make money … You don’t know what a first world economy is”: Judge Greg Borchers, Tennant Creek Youth Court, 6 June 2017.” was published in June and the second, “NT judge engages in “inappropriate judicial conduct,” brings “judiciary into disrepute” – keeps job” was published last week.

=======================================

Declaration: One day in 2005, while working as a solicitor for a government department in New South Wales, I walked into my office, burst into tears and fled, never to return. Thanks to my caring colleagues and senior management and a (mercifully) brief course of medication—followed by more useful cognitive therapy—I recovered from my diagnosis of chronic depression and was able to return to the workplace, back in my beloved Northern Territory, at a later date.

Photo: Ludlows, Legal Regalia & Tailors