In a speech given to the Judicial Conference of Australia last month, Justice Mason, the president of the NSW Court of Appeal said that above all others, judges ought to know the meaning of their words. And, by his own admission, the judge’s speech title, Throwing Stones, wryly suggests that he is both the most- and the least-qualified to speak.

For Justice Mason, it is when one judge decides to chastise another whose decision is under appeal — who has no recourse to defend his decision — that brings to light a problem that he says should be acknowledged and analysed. “Such criticism will invariably strike a target who was uncharged and unrepresented,” he said.

Justice Mason conceded that in a system that values free speech and judicial independence, and an appeal court structure whose duty it is to correct material error, that casualties caused by barbarous tongues can be part of life as a judge.

“[But], like casualties of war, these harmful impacts are justifiable only to the extent that they are inevitable,” he said.

In his speech, Justice Mason said that the relationship between appellate and lower courts can impact upon the effective working of the judiciary. In his opinion, the High Court and Court of Appeal often “adopt personally offensive language when detecting and correcting an error below”. This “undermines the mutual respect that should exist as between the different layers of the judicial hierarchy. It promotes an us and them mentality,” he said.

According to the judge, this erosion of deference between the judicial echelons can serve to reinforce the perception that the higher courts lack understanding of the dynamics of “life in the trenches”. This “saps the institutional morale of the lower court”.

Since advocates submissions tend to focus upon the factual error itself, rather than its maker, the “choice to castigate the sinner is almost always the unprompted decision of the appeal judge”, Justice Mason said.

According to Justice Mason, “the obligation to act without fear or favour does not authorise the venting of personal spleen, even where error is clearly established”.

While he acknowledged that there are scenarios that call for a strong response — disregarding binding precedent, fallacious reasoning and mistakes involving well-known legal principles — Justice Mason warned that “all of us will make mistakes, sometimes in the very act of perceiving them in others”.

The judge added that an appeal judge should carefully consider the cost-benefit analysis of choosing to go beyond what is necessary for deciding the appeal and attacking the judge, or their court generally.

“The appeal judge wields a mighty weapon if he or she chooses to add a personal rebuke,” he said.