The courtroom is generally a serious place, but two Australian academics believe that judicial humour has a place in the curial process.
In a paper for a forthcoming issue of the Australian Bar Review which has been made available through the Social Science Research Network Electronic Paper Collection (http://ssrn.com/abstract=2745611), former Judge's Associate (now working at Clifford Chance) Jack Oakley and Macquarie Law School Professor Brian Opeskin consider whether there is an appropriate role for humour in the exercise of judicial functions in hearing and determining cases.
Banter from the Bench: The Use of Humour in the Exercise of Judicial Functions notes that judicial humour has rarely been subjected to considered analysis in Australia.
"Judicial officers, often robed and wigged, sit on high in monumental buildings, speaking an arcane language, delivering judgment ex cathedra in cases that expose parties to financial ruin or deprive them of their liberty. At first blush, it is not an environment conduicive to jollity," the authors say.
"And yet, in the midst of this formality, or perhaps because of it, judges and magistrates do, from time to time, engage in humorous exchanges with other participants in the legal system or use humour in their written decisions."
Oakley and Opeskin say lawyers may not be surprised at the apparent contradiction.
"Judicial officers are generally intelligent and well-educated individuals. They have undertaken lengthy periods of study in demanding academic programmes. Through training and experience, most develop high-order oral and written communication skills, and the dynamics of the courtroom require them to hone their adroitness, agility and acuity."
Pointing to an Australian sense of humour that is "dry, irreverent and ironic", the authors say there are numerous instances of judicial officers using humour in the exercise of their official functions. They give some recent examples:
"You and I know precisely what will happen at the hearing of any appeal to the District Court. If past experience is any guide, and it is usually the best guide, the custodial penalty will be swept aside and replaced by a bond and a box of chocolates" (A New South Wales magistrate, after sentencing a woman to 9 months for a drug offence and being informed that she intended to appeal).
"Very well, I shall vary the order. You are not to come within 400 metres of the house, except in an aircraft" (Another New South Wales magistrate proposing to issue an apprehended violence order to a man requiring that he not come within 400 metres of the former family home. The man informed the magistrate that his job involved taxiing aircraft around the perimeter of Bankstown airport and this took him within 400 metres of the house sometimes).
"The plaintiff did say she had a boyfriend whom she hoped to marry within the next two years. She anticipated having four children. Of course it is possible after one child she might reconsider; most sensible people do" (A Master in the Western Australian Supreme Court ponders the difficulty of evaluating the future needs of a woman making a claim for financial provision from her deceased father's estate).
"Mr Wong's wife thought that ANCHOR had an unfortunate rhyming connotation. In any event, they eventually settled on ANCHORAGE which, to my mind, does not necessarily allay Mrs Wong's concerns, although it potentially contributes a splendid new word to the language" (A Federal Court Judge deciding on a trademark infringement claim involving two firms with similar names, with the executives of one firm claiming to have chosen their name by taking a dictionary and starting at the letter "A").
However, the authors say it would be wrong to conclude that these examples are typical. In 2013/14, they say, some 854,055 criminal matters and 631,598 civil matters were finalised in Australian courts, and yet examples of judicial humour remain elusive.
The two authors decide that there are four arguments which support the use of humour in courtrooms and judgments:
Humour is human; arguably judges are too: "Greater tolerance for natural displays of humour would have the beneficial effect of re-humanising judges, and remoulding their negative image as watchers from an ivory tower, disconnected from the 'real' people over whom they sit in judgment."
Humour promotes open justice: "Just as statutes may be made clearer and more accessible by improved legislative drafting, so too may judgments be bettered by humour."
Humour oils the wheels of justice: "Humour can help ensure that the hearing and resolution of adjudicated disputes proceed smoothly on both sides of the bar table."
Humour serves as a social corrective: "Judicial humour can have a socially corrective function when it is used by a judge to chide, admonish or rebuke participants in the legal process, provided it falls short of sarcasm."