With Introduction to Public Law students due to study the topic judicial independence next week, it is an opportune time to examine a current situation involving allegations of judicial misconduct or incapacity on the part of NSW magistrate Pat O’Shane:
Ms O’Shane, who turns 72 in June next year, has been the subject of at least six previous complaints to the Judicial Commission of NSW, including one that was dismissed by its conduct division, which handles the more serious cases.
On Friday, Ms O’Shane – a magistrate with 25 years experience – had dismissed the case, saying a paramedic, allegedly assaulted by a patient, had initiated the confrontation. Police will be asking the Director of Public Prosecutions to consider appealing the case on the basis of judicial error.
The Premier, Barry O’Farrell, announced yesterday he had asked for Ms O’Shane to be referred to the commission because he was concerned she had refused to allow the ambulance driver to give evidence.
Magistrate O’Shane has also had a number of other brushes with the legal system relating to her competence and attitudes as a magistrate.
She initially won a defamation action against the Fairfax newspaper group and its conservative columnist Janet Albrechtsen but later in 2005 had her damages massively reduced after the NSW Court of Appeal found that several of the allegedly defamatory statements about O’Shane were covered by the defence of fair comment:
66 At the heart of imputation (c) was that the respondent allowed her subjective attitudes to affect her judgment. In my view, an opinion to that effect might reasonably have been based on the dismissals of at least the charges other than the Kanaan charges, in the light of the respondent’s anger expressed by her statements as to police harassment and inappropriate action and advertising suitability and her approach of human values; taking them together, the hypothetical opinion-holder might reasonably have concluded that there was anger and bitterness influencing the respondent’s decision-making. …
68 Imputation (f), that the respondent, as a magistrate, is incompetent, was an opinion which might reasonably have been held, because that description might reasonably have been given to a judicial officer who allowed the attitudes earlier identified to affect the judicial officer’s decision-making. Similarly as to imputation (g) and (h); the hypothetical opinion-holder might reasonably have come to the view that the respondent departed from the objectivity and impartiality necessary for a judicial officer.
69 In my opinion, therefore, the defence of comment was made out as to imputations (c) and (f), (g) and (h).
Internet publication Crikey also recently catalogued magistrate O’Shane’s alleged judicial misdeeds:
1999: O’Shane dismisses attempted murder charges against notorious drug dealer, Michael Kanaan. He has been chased by police into White City Tennis Centre in Rushcutters Bay, where several shots have been fired and a policeman wounded. O’Shane describes police as “stupid, reckless and foolhardy” to give chase, and suggests they were harassing him and his three companions.
Kanaan (who is now serving two life sentences) had executed a rival drug gang leader, Danny Karam, the week before. Six months earlier, he had killed two strangers in a drive-by shooting.
NSW DPP, Nicholas Cowdery, ignores O’Shane’s decision and brings charges ex-officio. Kanaan is eventually found guilty of malicious wounding and jailed for 12 years.
2000: The Police Association makes a complaint about O’Shane to the Judicial Commission in relation to Kanaan comments.
2001: O’Shane is investigated by Judicial Commission after she claims some women fabricate rape charges. Her comments are made while rape charges are pending against Indigenous leader Geoff Clark.
Sept 2004: O’Shane discovers her husband of 19 years is having an affair with their next-door neighbour. She allegedly waves a knife, threatens him, and throws his clothes on the neighbour’s doorstep at 1.30 am. The woman takes out an AVO against her. O’Shane’s husband also seeks an AVO then withdraws it. Police bring assault charges, then drop them. O’Shane steps down from the bench while she is treated for depression.
Oct 2005: O’Shane dismisses charges of offensive behaviour against a drunken pedestrian who tells police, “youse are fucked”. She claims there are no longer “community standards” in relation to such behaviour. She awards the man $2600 in costs, on the basis he should never have been arrested and charged, because this sort of language is “to be expected on George St at that time of night”.
2006: O’Shane is investigated by Judicial Commission after she locks up a defendant in a civil case for alleged contempt of court.
2007: There are calls for NSW Parliament to sack O’Shane after she dismisses charges against a 51-year old man for spitting at transit police at Redfern Station. O’Shane accuses the officers of assault and fabricating evidence, despite CCTV footage showing the man making threats.
March 2010: O’Shane dismisses charges against a drunken man for assaulting police, and says the police were to blame. She also accuses them of “fabricating” and “colouring” their evidence. Constables Scott Williams and Daniel Ayling have given evidence in court that the man called them “fucking pigs”.
January 2012: O’Shane dismisses charges of assault against an African Australian who has allegedly punched a paramedic. She questions whether the paramedic is racist after hearing evidence that the parademic called the refugee a “filthy pig” for spitting on the ambulance floor. She refuses to hear corroborating evidence from the ambulance. NSW Premier Barry O’Farrell asks the Judicial Commission to investigate, saying O’Shane’s behaviour “fits a pattern”.
Lastly, ANU legal academics Michael Eburn and Ruth Townsend recently conducted a study into magistrate O’Shane’s comparative record of reversal on appeal:
Between 1999 and this year, the NSW Supreme Court has been asked to review decisions of O’Shane in at least 56 cases, including 16 criminal cases. In at least three of these cases, she was criticised for refusing to allow a prosecutor to call further witnesses and, in effect, placing herself in the role of counsel for the defendant rather than an impartial judicial umpire.
In the latest decision, Justice Peter Garling noted the Supreme Court had given very specific directions on how O’Shane should apply the law but again her conduct ”fell short of the required standard of a trial judge acting properly and … involved a manifest error of law”.
The Supreme Court has found O’Shane got the law wrong in 14 out of those 16 criminal cases. In the two cases in which her decisions were upheld, one was a private prosecution that did not involve the police and in the other the defendant was herself a police officer so the police were, in effect, on both sides.
In the other 14 cases, the police or Director of Public Prosecutions had brought a case against a private citizen and then appealed when O’Shane dismissed the case. In one case she dismissed a charge even though the accused had entered a plea of guilty.
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”.
Where the Supreme Court finds there has been a legal error, the matter is often returned to the magistrate to reconsider the case and to apply the law as explained in the Supreme Court’s decision. In eight of the 14 appeals upheld against O’Shane, the matter was returned to the local court with orders it be finalised by a different magistrate.
In one of those cases there had been two appeals – O’Shane dismissed the charge, the prosecution appealed and the Supreme Court upheld the appeal and returned the matter to the local court where O’Shane again dismissed the charges.
The prosecution again appealed and the matter was returned to the local court with an order that it be heard by another magistrate.
O’Shane was the first Aboriginal Australian barrister and first Aboriginal woman to be appointed the head of a government department in Australia.
Like other high achievers, such as Marcus Einfeld, she runs the risk her achievements will be overshadowed by what appears to be increasing personal failings in her judicial role. Her conduct on the bench must cause the community to doubt whether she is capable of performing her task without ”fear or favour”. Any victim of a crime would have to be concerned if their matter was listed before her because of her repeated failure to afford procedural fairness to the prosecution.
53 Removal from judicial office
(1) No holder of a judicial office can be removed from the office, except as provided by this Part.
(2) The holder of a judicial office can be removed from the office by the Governor, on an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity.
(3) Legislation may lay down additional procedures and requirements to be complied with before a judicial officer may be removed from office.
As you can see, the criteria are very similar to section 72 of the Commonwealth Constitution which of course governed the situation of High Court Justice Lionel Murphy examined in the LWZ202 study guide. Do you think that either ‘misbehaviour’ or ‘incapacity’ (probably more the former than the latter) is made out on the above facts? If you have time you might also like to read John Waugh ‘A question of capacity: the case of Justice Bruce’ 9 Public Law Review 223 (reproduced in PDF here). Note however that Justice Bruce’s case was one of incapacity rather than misbehaviour.