Lady Justitia
Fingleton: criminal but not illegal
                  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:

  • 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, and relatively stable.
  • Due process must be afforded to all those before the law (e.g. Habeas Corpus.)

All people 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:

Barristers can’t be sued for negligence in court

Barristers cannot be sued by their clients for how they perform in court.

Giannarelli & Ors v Wraith & Ors (1988) 81 ALR 417

 Ancient Law Lets Negligent Firm dodge $975K payment

Judges can’t be sued for negligence in court

NSW Appeal Court Judge David Ipp


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


Double Jeopardy

Whereas there is the pretence of the law treating the prosecution and defence equally during the proceedings of a criminal trial, this is certainly not the case after the verdict has been reached.

Due to the ancient common law of autrefois acquit (known colloquially as double jeopardy) the privilege of appealing the decision, while always granted to the accused, is only partially granted to those representing the victim. Since “reform” was first legislated back in 2006 victims are still waiting for the first case, anywhere in Australia, of a  suspect, acquitted by a jury, being brought back to trial, let alone finally convicted.

We are ruled by laws and not by men

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."

One manner in which this prerogative is controlled for senior public servants is to deny judges the right to declare guilt or innocence when a person is being prosecuted for a serious# crime. This authority is rightly left in the hands of the jury, that cross section of the general public.

How things currently are

#1  In the famous (some would say infamous) Australian High Court case of Carroll v The Queen of 2002, which involve 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. In handing down their decision they criticised the prosecutor for bringing the accused again to court after he had been exempted from a repeat murder charge due to the double jeopardy concept, 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.

#2  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 reasonable doubt, are best believed to be.

That it were so.

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 accused. 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 can not only lead to an overturning of the jury decision but also a ruling of an acquittal.

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.

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. 

How things should be

#1 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 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 today we 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.


#2 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 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 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.



*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 only suspected of committing petty crimes.




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