Is the judge sovereign in fact?

Peter Gillies, Serge Galitsky

    Research output: Contribution to journalArticle

    Abstract

    This article examines the principles governing the appellate review of decisions of face by trial judges in civil cases in Australia. It queries whether there is at the present time, on authority and in principle, any basis for a presumption in favour of the trial judge’s decision on factual issues. It deals only with decisions of fact by the trail judge, and not the jury. It deals only with decisions of fact uncomplicated by errors of law. It concludes that where the trial judge’s decision of fact is not based either at all or significantly upon an assessment of witness demeanour, there are no formal constraints on the appellate court in reversing this finding, if the evidence and inferences based upon it, warrant this. It also contends that the orthodoxy that the appellate court is constrained in reversing trial judge decisions of fact based in whole or materially upon an assessment of witness credibility, has been qualified by the High Court’s decision in Fox v Percy.
    Original languageEnglish
    Pages (from-to)192-206
    Number of pages15
    JournalAustralian bar review
    Volume28
    Issue number2
    Publication statusPublished - 2006

    Keywords

    • law
    • appeals on fact

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