Magistrates and Judges sit and hear the evidence raised by the parties, then make decisions based upon that evidence alone.
Their role is not to conduct an investigation on behalf of society at large.
However, this highly restrictive view of the judiciary’s role has not always been a part of our legal history.
Until the 1730s, criminal defendants were denied the right to legal counsel altogether.
This necessarily meant that that the judge needed to take a more prominent role in cases.
Of course this is no longer the case, and now judges play a much more limited role in proceedings.
This is not the case in all legal systems: many European countries facilitate a much more proactive role of the judge who may call new witnesses, raise new issues and more.
But even in those systems, if the judge goes beyond this and does their own independent investigations outside the scope of what is raised in court, they have crossed over the line.
One Western Australian Magistrate was found to have crossed the line after Googling the defendant in a case she was hearing.
Magistrate Barbara Lane asked the accused in court if he ran West Australian Companies, adding that she had Googled them.
The defendant’s lawyer objected, saying that it was highly inappropriate for her to have Googled the case during the lunch adjournment.
The case went up to the Western Australian Supreme Court, and it was ruled that there had been a breach of procedural fairness.
The Magistrate was taken off the case and it was re-heard.
She has since retired.
Magistrate Lane had previously been accused of bullying lawyers and giving substandard judgments.
Why can’t judges do their own research?
In Australia, it is up to the parties of a case to bring evidence before the court by calling witnesses and tendering exhibits.
This ensures that only evidence that is admissible under the laws of evidence is able to be brought before the court, and if inadmissible evidence is wrongly admitted, the error can be rectified during an appeal where the entire transcript of the earlier proceedings will be made available.
On one view, even the common practice of judges questioning witnesses can be seen as inappropriate – as this is a job for the legal representatives of the parties.
One of the reasons this kind of interference is frowned upon is because it can give the impression that the judge is taking sides.
The ‘judicial notice’ exception
Judges are entitled to do their own research in very limited circumstances.
They can rely on common knowledge – and their have been many occasions where judges have relied on statistics, articles and books in their judgments when it comes to a ‘common knowledge’ issue.
This means that they can make assumptions about matter that are not reasonably open to interpretation, or are capable of verification from authoritative sources.
The Evidence Act allows for magistrates and judges to acquire this kind of “common knowledge” in any way they think fit.
But judges who do this may give parties a chance to make submissions relating to the relevant information to ensure that there is no prejudice.
There is currently a shift towards allowing judges to play a more active role in proceedings – but this has not yet extended to carrying out independent investigations.
Should judges in criminal trials be allowed to undertake their own research, or should they be restricted only to the issues and materials presented before them by the prosecution and the defendant?
One of the reasons that this was so harmful was that the parties had no idea of the extent of the research that the judge had undertaken. This made it possible to know how to rebut any adverse material she may have uncovered.
