Behind the Gavel: Judge Trapnell’s Take on Law and Life

A Jury of Us All

As Director of Research and Executive Officer of the Victorian Parliamentary Law Reform Committee, Judge Trapnell led inquiries into a myriad of matters affecting the operation of our legal system, including the Victorian jury system. Through this work, his Honour recognised the critical importance of a jury pool representative of our broader community in maintaining fairness in the justice system and thereby maintaining confidence amongst those who are subject to it.

Although the composition of juries has transformed significantly over the years, certain demographics within our society, especially First Nations peoples, culturally and linguistically diverse communities, and persons with disabilities, have persistently been under-represented in jury panels. Whilst the juror selection process itself is random, a range of extraneous factors cause pressure for potential jurors to request excusal. These include the financial burden of participating, chronic health problems, and language challenges – all of which disproportionately impact marginalised communities and raise the question of whether the citizens’ panel is truly a ‘jury of us all’.

However, the value of collective experiences in strengthening the administration of justice cannot be understated. Judge Trapnell stressed the vitality of inclusive juries in making the system stronger, fairer, and more human, especially in cases involving child abuse and First Nations peoples. His Honour emphasises that representative juries aren’t just ideal, but they are crucial to a justice system we can trust.

Who Gets to Judge?

Diversity and representation are not only essential amongst the Court’s ‘finders of fact’, i.e., jurors, but also amongst our arbiters of law, i.e., judges. According to the Australian Institute of Judicial Administration (AIJA), as of June 2024, around 45.4 percent of judges across the nation identify as female, and this figure is steadily increasing. Judge Trapnell himself recognised the evolution of the judiciary since his Honour started his career, especially its transformation from one being previously dominated by men. He celebrates both the female trailblazers of our courts as well as the efforts they bring in challenging the status quo, and the system that is slowly embracing these changes.

However, his Honour also acknowledged that historically this was not always well received. Criticisms about diversity, equity and inclusion (DEI) were not uncommon and were often underpinned by arguments that DEI undermines merit and engenders division. Yet, through his experience, Judge Trapnell has recognised the value of having judges from diverse backgrounds as it promotes understanding and compassion, the foundations of a just justice system. For example, his Honour discussed how immigrants from war-torn countries or first-generation Australians often experience first-hand or intergenerational trauma, which can reinforce a cycle of crime. He noted that this diversity is not just limited to culture but extends to judges that identify as LGBTQIA+, reflecting the broader community and fostering a more inclusive judicial system. Thus, it is vital that the judiciary understand the stories of the people before them, after all, it is our stories that shape us.

The Legal Bell Curve

To truly transform the justice system, we must invest in our future – that is, our young people. Judge Trapnell’s advice to all students and young lawyers is that there is a place for everyone in the legal profession. Crucially, as part of the road to diversifying the broader legal system to better serve the community, we must embrace our differences and challenge our comfort zone as students of the law.

However, this is easier said than done. Judge Trapnell illustrated this through a bell curve analogy, representing the distribution of opportunity and representation in the legal profession. Only through the eradication of privilege, structural barriers, and systematic disadvantages will the median of the bell curve shift, transforming to one which will allow everyone to have the opportunity to flourish.

Scare Resources and the Cost to Justice

Although the judicial system has evolved over time and become more effective in delivering justice outcomes, it continues to grapple with challenges due to limited resource allocation. This has resulted in increased delays, mounting backlogs and pressure on judges and lawyers, threatening the judiciary’s ability to deliver justice through a legal system that is fair, efficient, and accessible.

The Digital Future of Justice

More optimistically, technological advancements have rapidly changed the face of the judiciary, with the system undergoing a significant transformation in the ways courts run and deliver justice. Judge Trapnell reflected on the COVID-19 pandemic as playing a crucial role in the shift of technology in the judicial system. His Honour noted the coincidence that, just before the pandemic, the Court had received funding and upgrades to the IT infrastructure which provided the Court with updated and modern equipment. This proved to be of vital importance when the pandemic caused lockdowns across the state, plunging the court system into uncertainty. Judge Trapnell described his experience in having a multi-monitor setup, combining laptops and screens to access vast amounts of electronic legal resources and to continue conducting court business as usual from his home.  Videoconferencing platforms like Microsoft Teams, Zoom and Webex became central to enabling the delivery of justice, allowing the courts to conduct hearings, meetings, consultations and sentencing all remotely. This technology boost proved invaluable as Judge Trapnell emphasised how, despite the uncertainty of the pandemic, the justice system remained resilient and continued in its delivery of fair and accessible outcomes.

In an evolving world with fast-growing technology, artificial intelligence has emerged as both a challenge and an opportunity for innovation and growth. Increasingly, there have been concerns about the use of AI in the legal sphere, and what it means for the future of law. Judge Trapnell stressed that AI should not be feared nor ignored. He suggested that an approach to the delivery of justice that properly implements and utilises AI can bring significant benefits. For example, AI can streamline workloads by providing first drafts, summarising evidence, discovery and refining emails. Addressing concerns around privacy and confidentiality, Judge Trapnell noted that the courts and law firms should rely on internal AI systems to protect sensitive information. He also underscored the importance of legislation around AI in order to protect democracy and presumptions. While AI is a valuable tool, Judge Trapnell highlighted that ultimately, the final decision will always rest with a person, underscoring the importance of human understanding in the legal process.

As technological advancements in the COVID era changed the way the judiciary dealt with cases, it may very well be that AI will shape the future of the legal field. In the words of Judge Trapnell, it is best that we learn to adapt and work with AI and technology rather than fear or ignore it as it can serve as a powerful tool to support the judiciary.

From Here?

Looking ahead, the future of the legal field is not solely shaped by technology, but also by the diverse individuals stepping into the profession. For young law students beginning their careers, Judge Trapnell highlighted the role of a Judge’s Associate as an excellent opportunity, particularly as a valuable stepping stone into the legal profession. The role offers a unique perspective on the judicial system, with associates gaining the opportunity to observe and understand judicial rationale. It allows the opportunity to be front row to the most rewarding and challenging aspects of the law. Many find the work deeply meaningful, gaining experience that proves invaluable to their careers. Judge Trapnell himself made the switch to criminal law after his associateship with the Hon Professor George Hampel AM KC, underscoring the impact and influence of this role.

As the legal field evolves, the judiciary stands poised to meet future challenges with resilience, fairness and a deep understanding of the human stories behind every case.

Written by Tashi Saini and Letishia Jong

Edited by Ai-Vy Nguyen