A question of legal standards

Pat O'Shane

JUDGING the nation's judges is not for the faint-hearted. Yet for anyone who respects the role of judges in our democracy and is concerned with maintaining public confidence in our justice system, it is a most important task.

Allow me then to put the latest controversy about NSW magistrate Pat O'Shane in some perspective. Over the past decade, it has become clear to me that the conduct of this magistrate raises serious questions about the appointment and removal of judicial officers.

First, some background. In December 1999 I wrote an opinion column for The Sydney Morning Herald about O'Shane, concluding, for a variety of reasons, that she was unfit to hold office as a magistrate. O'Shane sued John Fairfax Publications, publisher of the SMH, for defamation and in 2004 the Supreme Court of NSW found that my column had damaged her reputation, and awarded O'Shane $220,000 in damages against the newspaper. The judgment of Justice Smart noted that, as a witness during the trial, I did not resile from my written views.

Fast forward to 2012. What are we now to make of O'Shane's reputation as a magistrate following some comments by superior court judges who have upheld appeals against her decisions? Overturning her decision to dismiss a traffic infringement case last year, Justice Peter Garling from the NSW Supreme Court found that O'Shane's conduct in the case "fell short of the required standard of a trial judge acting properly".

In his February 3 judgment, he ordered the matter be returned to the local court to be "heard by another magistrate".

Reading Garling's reasons for making such an order, his sense of exasperation with O'Shane is palpable. The Supreme Court judge says: "It is difficult to understand how the magistrate has fallen into errors of the kind which I have found, since this judgment is not the first occasion upon which the proper procedure has been described, and the correct procedure pointed out to the magistrate by this court."

After listing four appeal cases where the "correct process" has been drawn to O'Shane's attention, Garling says: "In light of this history of decisions by this court, and the failures identified in this case, I can have no confidence that magistrate O'Shane would, if the matter was returned to her to complete, undertake the further hearing of it in accordance with the law."

Garling then set out his second reason for ordering a future hearing be heard by a magistrate other than O'Shane: "Having regard to the strength of the views expressed by the magistrate as to whether she believed the evidence of the two police officers, the director would be entirely justified in asking that her honour disqualify herself from any further hearing of the matter by reason of a reasonable apprehension of bias, and also of prejudgment."

Now consider this. Academics Michael Eburn and Ruth Townsend recently analysed criminal appeals involving O'Shane's decisions to the NSW Supreme Court, the NSW Court of Appeal and the NSW Court of Criminal Appeal. Writing in the SMH last week, they found that since 1999, superior courts found that O'Shane got the law wrong in 14 of the 16 criminal cases that went on appeal. I have read each of those appeal cases. While they reflect only a fraction of the cases heard by O'Shane since 1999, the comments extracted by Eburn and Townsend are nonetheless highly critical of the magistrate.

"In different cases, Supreme Court judges have said: O'Shane 'did not comprehend the real basis of the prosecution case or the significance of the evidence before her'; that she dismissed a case on the basis 'the prosecution had not proved a fact that it did not have to prove' and that her decision was based on reasons that were 'either undisclosed or incomprehensible'; that her conduct 'bore little resemblance to what was required by law', she 'failed to comply with statutory procedures and denied the prosecutor procedural fairness' and failed 'to give reasons as required by law'; that she dismissed a charge 'without proper regard to applicable law and practice'; that 'with all proper respect to the learned magistrate it seems to me that there was a clear failure of procedural fairness in the way in which her worship dealt with the prosecution and with the prosecutor'; and that she 'used intemperate language in a way that inappropriately denigrates the evidence of the police'."

Alas, appeal judges can only do so much by overturning decisions of lower courts. More, then, is needed to keep judges accountable. This applies particularly to magistrates who, each year, make thousands of decisions that affect the lives of many Australians.

For starters, a free, fearless and sceptical press must be able to report, analyse and criticise judicial decisions and the conduct of judicial officers when circumstances demand. The media must do so notwithstanding the stifling effect of incredibly complex defamation laws and despite overly sensitive judges who fling accusations of "bully boys" at those of us who dare to question their decisions and their reasons.

Members of the legal profession who appear before magistrates and other judges on a daily basis also have a role to play. Given the history of O'Shane controversies, where have members of the Bar been on this front? The Bar may wish to reflect on whether it has been too reticent to complain about the sometimes errant magistrate and if so, whether such reticence may serve to embolden those judges.

Last month NSW Premier Barry O'Farrell signalled his intent that the Attorney-General lodge a complaint with the NSW Judicial Commission against O'Shane for her decisions in a number of cases.

If the Judicial Commission finds proved incapacity or misbehaviour against O'Shane, its only option is to refer a report to parliament to consider her removal. If that happens, O'Shane may end up being one of very few judges to be removed from office in Australia. Last year, on two separate occasions, the conduct division of the Judicial Commission made findings against two magistrates sufficient to warrant consideration of their removal by parliament. The commission does not make these findings lightly. Yet, when the matters were separately considered by state parliament, a majority of state MPs decided against removing magistrate Brian Maloney for proved incapacity or magistrate Jennifer Betts for proved misconduct and proved incapacity. Both suffer from mental illnesses. O'Shane may not find support among enough state MPs to save her career from an ignoble end.

However, time is on O'Shane's side. She turns 72 - the judicial retirement age - in June next year and the Judicial Commission may not complete its inquiry until after she has retired, making a possible removal by parliament a moot point. History, however, is not on O'Shane's side.

As Garling's comments make clear, there is an unfortunate history of criticisms of O'Shane by appeal court judges. That history will necessarily taint O'Shane's legacy as a magistrate.

The fraught process of removing judges and O'Shane's history on the bench raises important lessons about judicial appointments. Certainly in retrospect, one is entitled to ask whether the then Labor government in NSW should have appointed O'Shane as the first Aboriginal woman to the bench in 1986.

Even at the time, legitimate criticisms could be made about appointing the outspoken O'Shane to the bench. She had a long history of political activism. And good on her for that. She has spoken fondly about her family's anti-authority bent and the militant activities of her father, a member of the Waterside Workers Union. She was promoted early and fast as someone fighting for what she believed to be the promotion of indigenous rights. Not everyone agrees with her agenda. She has, for example, fallen out with others, such as Noel Pearson, for her more militant views on race warfare between indigenous and non-indigenous Australians. That, too, is her personal prerogative.

There is, however, no judicial right for O'Shane to use the bench on some occasions to apply her own notions of justice, ignoring the law, when dealing with ambulance officers, police officers and even railway officers, as evidenced by the criticisms made by appeal judges when overturning her decisions.

On that evidence, is one not entitled to the opinion that NSW may have been better served had O'Shane exercised her activism in the political, not the legal, arena?

Unwittingly, O'Shane has carried out an important public service by highlighting that those who appoint judges ought to do so very carefully indeed.

Once appointed, judges are necessarily difficult to remove, and the danger is always that some judges will sometimes abuse their independence.

Let's be clear about this. Having regard to the pattern of criticisms from senior judges about O'Shane, it is my opinion that the NSW magistrate has done precisely that and therefore she is unfit to hold office as a magistrate.

It is imperative that we keep judges accountable to avoid others doing the same.