Judicial humour Law Graduation Address – Sydney University
FRIDAY 20 MAY 2005
Entering this Great Hall jolts a flood of memories. Here I first came on Orientation Day in early 1964. Here I sat doing exams. Here I graduated. There have also been dinners, concerts, protests and memorials attended in this place. Above the Hall are the offices of the Vice Chancellor where (as an articled clerk working for the University solicitors) I entered in 1970, late at night when the electricity had been deliberately shut off by the University, to serve injunctions on students participating in a candle-lit sit-in.
Today in this place the University has done me a great honour for which I am deeply grateful. Such talents as I have are gifts from God that have been nurtured by the lovingkindness of my family, teachers and friends. My heartfelt thanks to them also.
I congratulate the new graduates for their efforts and achievements. You should all be proud of yourselves, just as your family and friends gathered here are so obviously proud of you. The staff of the Law Faculty also deserve praise for their dedication and perseverance.
When strangers learn I am a judge their conversation often alludes gently to the foibles or failings of judges. There may be enquiries about judges who struggle with staying completely awake on the bench or who confront demons of alcoholism or depression. The ceremonies, trappings and language of the law may focus on principles and institutions. But public and media interest lies in the person under the wig, his or her background, gender, extra-legal passions (or lack thereof). Some judges are comfortable with this public interest in them as individuals. Many of us are not – whether or not brickbats or bouquets are being offered.
Judges are often spoken about for humorous incidents in their life, some of their own making, others in which they were the butt of uninvited laughter. Sir Heydon Erskine Starke was renowned for giving counsel and judicial colleagues a hard time. Legend has it that he accompanied Rich J to the funeral of Sir Isaac Isaacs. As they passed an open grave at the cemetery, Starke leant over to Rich, who was 85 years old and asked him: “George, are you sure it’s worth your while to go home?” Starke once commenced his judgment dryly remarking that the appeal had “been argued by the Court over nine days with some occasional assistance from the learned and experienced counsel who appeared for the parties”. Federal Commissioner of Taxation v Hoffnung & Co Ltd (1928) 42 CLR 39 at 62. On another occasion, counsel and judicial colleagues had the last laugh. Starke was sitting in court in Melbourne with a rug over his knees. He was giving Mr Miller QC a very hard time. Eventually Miller protested: “Your Honour is very rude to counsel”. Starke retorted: “With justification.” Miller demanded to know: “Is your Honour suggesting some constitutional justification?”, at which point Latham CJ intervened and announced a short adjournment. As the judges got up to leave unexpectedly, Starke tripped over his rug and fell flat on his face.
These examples touching Starke illustrate that judicial humour can occur in whispered asides between colleagues, during argument in court, and in judgments. And the humour doesn’t always come out as the judge intends it.
Chat between colleagues on and off the Bench is secretive and ephemeral. Whispered asides, passed notes and practical jokes are seldom observed or preserved. Many comments about counsel would challenge the boundaries of absolute privilege for defamation with respect to words uttered in the course of legal proceedings. The early drafts of circulated judgments, where overstated propositions may be met with hyperbolic rebuttals, are not retained. The unpublished memoranda of Judge Learned Hand circulated to colleagues as a first draft of his thoughts contained acerbic digs at colleagues, counsel and trial judges. These did not carry over into his opinions for judgment. Perhaps this was a way of getting things out of his system.
Humour has many functions. It may observe the silver linings on life’s clouds. It may be little more than ostentation. It may stem from embarrassment or be intended to defuse a tense situation. Its sociological aspects include expressing aggression in an acceptable way; or bonding internally as a protection against those perceived at times to make life difficult for a group. On my Court, many jokes about trial judges, appellate counsel and the High Court of Australia fall into these categories.
Little is unique about humour on the Bench. Nevertheless, there are particular pitfalls for judges to avoid. W S Gilbert’s Lord High Executioner in The Mikado had good reason to include in his hit list “that Nisi Prius nuisance … the Judicial humorist”. A judge’s attempts at humour may elicit the polite laughter of counsel, but self-interest or sycophancy may really be in play. The man in the dock may also smile, but he is a captive audience who is not free to go to another establishment in search of an alternative sit down comic. Litigants may not appreciate any form of humour in what they view as their drama. They will rightly resent anything that smacks of scorn, condescension or the flim flam of a club for lawyers being supported at their expense. As Evelyn Waugh wrote to Nancy Mitford about the jokes of Mr Justice Stable:
The jury were not at all amused by the judge. All the £300-a-day barristers rocked with laughter at his sallies. [The jury] glowered. This was not what they paid a judge for, they thought. Gilbert M (ed), The Oxford Book of Legal Anecdotes (1986) at xii-xiii.
The Australian Institute of Judicial Administration advises judges that occasional humour is not out of place in a courtroom, provided it does not embarrass a party or witness. Whilst judges are advised to display tolerance, patience and good humour in the conduct of hearings, they are cautioned against the use of sarcasm, irony, humour and other figurative language.
Sometimes a judge’s attempt at humour can backfire dramatically. Mildren J of the Supreme Court of the Northern Territory declared himself to be “absolutely staggered” that the serial burglar appearing in his court had been granted bail on a previous occasion. Demanding to know, “Who is the idiot who did that?” he later learnt that it was himself.
Few of us judges have resisted the temptation to embellish a judgment with what we consider to be wit or humour. This may include snatches from literary classics to make a point forcefully or simply to “give artistic verisimilitude to an otherwise bald and unconvincing narrative”. Fortunately, the American pastime of producing judgments in verse has not caught on in this country. Litigants are therefore spared the likes of Brown v State 134 Ga App 771, 216 S E 2d 356 (1975). where the Georgia Court of Appeals commenced judgment with:
The DA was ready
His case was red hot.
Defendant was present,
His witness was not …
Much subtler was Sir Ninian Stephen’s epigram in Western Australia v The Commonwealth 134 CLR 201 at 251. when he said:
“To read words into any statute is a strong thing and, in the absence of clear necessity, a wrong thing ….”
Subtlety will often be a mark of humour in judgments, but it can still be biting. Priestley JA once described a witness as having an Achilles heel which reached up to his knee. Attorney General for New South Wales v Radio Station 2UE Sydney Pty Ltd, NSWCA unreported 28 August 1992, p4. Often barbs are directed at judicial colleagues (as with Starke’s point about the High Court case being argued “by the Court over nine days”). At times the slight is aimed at counsel. One of my favourites is Sir Victor Windeyer J’s response to a submission in a constitutional case relating to the conciliation and arbitration power in the Constitution. Counsel had argued that disputes are either industrial or not industrial. Windeyer dryly described the proposition as:
… logically incontestable … Like Sinclair’s well-known division of sleeping into two sorts, namely sleeping with or sleeping without a nightcap, it would seem to exhaust the subject. Ex parte Professional Engineers Association (1959) 107 CLR 208 at 272.
Even the subtlest of jokes can spread rapidly, especially in this age of the internet. A judicial quip may however offend an unintended target. A former Chief Justice of New South Wales once was addressing a claim under the Family Provision Act concerning a deceased who was survived by one lawful and two de facto wives. This distinguished judge wrote: Green v Green (1989) 17 NSWLR 343 at 346.
The deceased appears to have maintained simultaneous domestic establishments with all three women and their respective children. In terms of division of his time he appears to have given preference to Margaret Green, but it seems that he spent two nights a week, regularly, with the respondent and, at least according to her evidence, gave what she regarded as a plausible explanation for his absences. Presumably, over a number of years, he managed to achieve the same result with the other women. This is consistent with his apparent success as a used car salesman.
The deceased and his families had no grounds of complaint with respect to this absolutely privileged statement. But the judgment raised quite a storm of protest from the second hand car sales industry.
After this Chief Justice was appointed to a higher judicial office he issued a warning about the pitfalls of judicial humour to which later reference will be made.
I would not want you to think that I am opposed to humour in the courtroom or in judgments. Imagery and humour may help to bring a dispute back down to earth. It can also crystallise a point and put it into context.
Biting irony or well-directed sarcasm in a judgment may draw attention to gross abuse or much-needed law reform. A famous example occurred when Maule J sentenced a bigamist in 1845. The prisoner had married a women after he and his children had been deserted by his wife, who had gone to live with another man. In those days, the only way that the prisoner could have become free to remarry was by a complicated and expensive procedure involving a decree in the Ecclesiastical Courts followed by a private Act of Parliament. The estimated cost was over a thousand pounds, an impossible expense for the likes of the poor prisoner. Maule J solemnly recounted the procedure for obtaining a divorce that was theoretically open to the prisoner. He acknowledged the man’s poverty, concluding nevertheless:
“… but, prisoner, that makes no difference. Sitting here as an English judge, it is my duty to tell you that this is not a country in which there is one law for the rich, and another for the poor.”
This widely reported incident contributed to the climate for change that led to the first English Matrimonial Causes Act in 1857.
In a 1998 speech about the role of a judge, Murray Gleeson, Chief Justice of Australia referred to “what might generously be described as judicial humour”. He continued:
“Some judges, out of personal good nature, or out of a desire to break the tension that can develop in a courtroom, occasionally feel it appropriate to treat a captive audience to a display of wit. Sometimes this is appreciated by the audience, but sometimes it is not. When it is not the consequences can be very unfortunate. Judges and legal practitioners may underestimate the seriousness which litigants attach to legal proceedings, and they can become insensitive to the misunderstandings which might arise if the judge appears to be making fun of someone involved in the case. Without wishing to appear to be a killjoy, I would caution against giving too much scope to your natural humour or high spirits when presiding in a courtroom. Most litigants and witnesses do not find court cases at all funny. In almost ten years of dealing with complaints against judicial officers to the Judicial Commission of New South Wales I have seen many cases where flippant behaviour has caused unintended but deep offence.
Our distinguished Chief Justice is himself no mean humorist. His wise advice cautions restraint but does not banish smiles from the courtroom. Humour must always be moderate, measured and appropriate to the occasion. But beyond this, humour needs no further justification. It is a legitimate expression of humanity and individuality. These are judicial virtues in the eyes of all except those who want courts to be staffed by robots preferably made in their own image.
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