What do we do to the fundamental requirement of judicial neutrality if the Judge tries to
assist a party who clearly is not getting out their story, or a Judge who intervenes when
he sees a lawyer who is failing to take points which are obviously there to be taken,
failing to cross-examine in an adequate way, failing to call witnesses to assist, or
pursuing unhelpful lines? Is the Judge to discard his mantle of neutrality and go into the
arena to protect those individuals? Is the traditional maintenance of judicial restraint to
be given priority and precedence so as to protect the systems integrity? This is an issue
faced day in or day out in Courts and tribunals throughout the Pacific. Ignoring the
problem is no solution. We need committed women and men, imbued with the principle
of judicial impartiality, to find a way to turn the rhetoric of the rule of law available for
all into a living reality everywhere.
I recognise this inevitably leads to issues of proportionality. In many countries legal aid
will be available if a person is at risk of being sent to prison but not otherwise. In other
cases, it is said that it is not necessary or appropriate to give somebody lega l assistance.
In civil cases where the amounts are relatively modest, people are thrown back on their
own resources or those of their tribe, family, aiga or other support grouping.
The difficulty with that police decision is assessing the measure by which you are to
determine what is a serious matter and what is a minor issue. Let me explain. In New
Zealand we have Disputes Tribunals which are the place where cases involving not
more than $7,500 are adjudicated. The amount can be increased to $12,000 by consent.
Lawyers cannot appear. The rules of evidence do not apply. There is no right of
appeal. That is rationalised on the basis that they are relatively minor matters where the
costs of representation would outweigh the benefit. Understandable theory.