“THE JUDGE’S PARADOX: UNCERTAINTY AND JUSTICE IN THE 21ST CENTURY� Frank R. Gucciardo
Judge, County Court of Victoria On a recent trip to Italy I asked a local magistrate what had changed in her, in the 17 years since her appointment. She answered "I have acquired more uncertainties. I ask myself more questions and I listen with fewer prejudices. But the passion remains the same as the first day . I am fortunate ." Her answer was startling. A judicial officer whose reflection and humility increases with age!! The answer led me to my own reflection about the nature of judging and the paradoxes involved in this complex function. I am a Judge of the County Court of Victoria. I was appointed in 2008 after 25 years as a criminal barrister. I wish I could tell you that I went into law because I had a "love of the law" but what I had learnt around our family kitchen table was not about the law. It was about humanity, their stories, their courage, their weakness. At the head of the table was my father, a policeman who had been in the 'Squadra Mobile' in Sicily , dealing with the post war Mafia and later in Rome as Chief of the Forensic Lab. Our discussions were about evidence, discovering and understanding motives, issues of credibility , reliability, alibis and the predicaments of human interaction. And thanks to my parents who were humble, measured, well balanced and serene people, the idea of paradox , fallibility and uncertainty walked arm in arm
with notions of human justice ,fair process and impartiality . I too,like the Italian magistrate , have been indeed fortunate. The faculty at Monash University in the late 70's and early 80's was not quite an intellectually stimulating cauldron but it was enhanced by great lecturers like the legendary Louis Waller. He became an early hero as he fostered a love of the 'rule of law' and engendered in his pupils an appreciation of the fierce independence of the advocate and the judge, an independence hard won and jealously defended. I finally understood that fairness was an evolving concept not frozen in time - it was 1836 before defence counsel could address the jury on the accused 's behalf, just over a century ago that the defendant was entitled to give evidence at his own trial. It was at Monash that I understood that the constitutional imperative of judicial independence is a vital, central principle to the rule of law which should operate to protect the public not the personal benefit of judges. Those years were useful because after a couple of years of a 5 year degree in Jurisprudence , your brain starts to process legal problems like a lawyer and Denning and Reid become inevitable companions ,as Aristotle and Montaigne (you should all read Montaigne!!).
Then Dixon and Barwick, Brennan and Kirby. And others like Cardozo and more recently Bingham and Falcone. And the many others from other disciplines , who wrote about the human condition and told human stories. The law course was a rigorous, disciplined journey to develop the legal brain but it needed and needs to be enhanced by a breadth of other knowledge and experience. Next, it was the great challenges of advocacy as a barrister which I took up. The core task of the advocate is to persuade, to become engaged in the human experience and to communicate that effectively, clearly and powerfully, to explain the other perspective and the perspective of 'the other'. That is the great challenge and the great joy of being a barrister.(These days , I wish I saw that engagement a bit more often in counsel who appear before me). Advocacy was to be my life for the next 25 years. US Justice Cardozo famously said:" I have become reconciled to the uncertainty because I have grown to see it as inevitable. I have grown to see that the process in its highest reaches is not discovery, but creation ; and that the doubts and misgivings, the hopes and the fears, are part of the travail of mind, the pangs of death and the pangs of birth, in which principles that have served their day expire and new principles are born". 15 | ET CETERA | ISSUE ONE