5. Judicial Humour and Inter-Professional Relations in the Courtroom

In this chapter, humour includes jokes, spontaneous humour (such as jesting, witticisms, quips and wisecracks), anecdotes, wordplay, including puns, ironic statements, and sarcasm (Jorgensen 1996; Martin 2007).

In Australia’s political system, federal courts operate at the national level and a separate court system exists for each of the six states and two territories. All states and territories have a supreme court as well as a magistrates or local court. Magistrates courts hear the less serious criminal charges, lower-value civil cases including small claims, and the first stages of all criminal cases. Australian magistrates are paid judicial officers, with legal qualifications, and appointed until a fixed retirement age (Roach Anleu and Mack 2008). They sit alone, without juries, in metropolitan, regional and remote areas; those who appear in these courts are often unrepresented. Over 90 per cent of all civil and criminal cases are initiated and finalised in the lower courts (Australian Government Productivity Commission 2017). Despite cultural and jurisdictional differences, substantial similarities between Australian magistrates courts and lower courts in other common law jurisdictions (Roach Anleu and Mack 2017) suggest that the findings regarding the use of humour in the Australian context can be generalised more widely (see also Chap. 6). Important common features include the high volume and busy nature of these courts, the substantial disadvantages faced by many court users, and interdependence between different occupational groups.

In England and Wales, and in most Australian states and territories (except the Australian Capital Territory), the vast majority of criminal matters in the lower courts are prosecuted by police prosecutors who are employees of the police services, usually sworn police officers with policing experience, who usually do not possess legal qualifications. Legal practitioners employed or retained by an independent prosecution service—for example the Director of Public Prosecutions—undertake prosecutions of criminal matters in the higher courts and sometimes preliminary stages of serious cases in magistrates/lower courts.

In legal professions following the English model, the profession is split between solicitors and barristers, the latter collectively known as the Bar (Prest 1986). Solicitors undertake legal work that occurs out of court, including legal advice and preparation of cases in advance of court hearings, and generally represent clients only in the lower courts. Barristers specialise in court advocacy, especially in the higher courts, and can provide specialist legal advice to solicitors. Judges are typically appointed from members of the Bar while magistrates are more often appointed from the ranks of solicitors. Some barristers are appointed as Senior Counsel (and/or Queen’s Counsel) in recognition of their experience and standing at the Bar.

It is sometimes claimed that lawyers use adjournments (continuances) as a strategy for managing their workloads, which in turn can create problems for the courts’ efficient management of cases (Roach Anleu and Mack 2009).

This research was undertaken as part of the Judicial Research Project at Flinders University: http://​www.​flinders.​edu.​au/​law/​judicialresearch​/​. The research was initially funded by a University-Industry Research Collaborative Grant in 2001 with Flinders University and the Association of Australian Magistrates (AAM) as the partners and also received financial support from the Australasian Institute of Judicial Administration (AIJA). From 2002 until 2005 it was funded by an Australian Research Council (ARC) Linkage Project Grant (LP0210306) with AAM and all Chief Magistrates and their courts as industry partners with support from Flinders University as the host institution. From 2006 the research was funded by an ARC Discovery Project Grant (DP0665198) and from 2010 it is funded by ARC DP1096888, and from 2015 ARC DP150103663. A School Research Support Grant from the former School of Social and Policy Studies facilitated the development of this chapter.

All phases of these research projects involving human subjects have been approved by the Social and Behavioural Research Ethics Committee of Flinders University. We are grateful to several research and administrative assistants over the course of the research, and to Rhiannon Davies, Colleen deLaine, Jordan Tutton and Rae Wood for assistance on this chapter.

All jurisdictions have some version of the criminal list which is part of the work of most magistrates at some point in their career, making it an excellent site for the investigation of everyday, and perhaps mundane, practical work. The criminal list includes non-trial proceedings entailing decisions on bail, adjournments, standing matters down (to be heard later in the list), setting the matter for another procedure (such as a trial), taking guilty pleas, and sentencing. Types of offences are mostly drink driving, theft, assault and some drug offences. As most defendants plead guilty, the study did not undertake observations of trials.

A “matter” for our purposes was when each defendant’s case was called, regardless of whether the defendant actually appeared. Each case may have entailed only one or several charges. If two or more co-defendants appeared together, that was one matter. If a case was called, stood down and then recalled later, that was two matters, as it represented two separate events.

In one Australian jurisdiction, the proceedings in the lower court are not recorded, thus the three sessions observed in this jurisdiction do not have accompanying transcripts.

Transcripts have been given a consistent format: m indicates magistrate; dr indicates a defence representative; and p indicates a prosecutor. All names have been changed or deleted, participants provided with pseudonyms, where necessary, and all other identifying information removed. Letters and numbers are used to identify jurisdiction, session and magistrate anonymously so that the reader can tell when excerpts are from the same magistrate and/or session and when they are different.

While the transcript indicates that the magistrate said “drunks’ matters” the audio recording is less clear. Another possibility is that the magistrate said “all the drugs matters”.

The original fifteenth-century event said to have given rise to the phrase involved two rivals shaking hands through a hole in a door in St Patrick’s Cathedral, Dublin (Saint Patrick’s Cathedral, Dublin 2016).

This is a direct reference to an earlier matter involving the defendant whose occupation is a painter. In that matter, there was discussion between the magistrate and defence representative about the time needed to pay a fine and the magistrate quipped: “I’ll give him two months. If he’s a painter, he’s obviously well paid.”