Judicial misbehaviour or just blunt speaking?

Magistrate Pat O’Shane

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.

Judicial removal in NSW is governed by the Judicial Officers Act 1986 (especially section 41) and the Constitution Act 1902, especially section 53 which relevantly reads:

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.

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10 thoughts on “Judicial misbehaviour or just blunt speaking?”

  1. It would be very difficult for any reader of this article not to come to the conclusion that Magistrate O’Shane has both misbehaved and has an apparent lack of capacity. I find it difficult, however, to reconcile her behaviour as a magistrate with what appears to be her high-achieving previous career in Law. Perhaps the clue to the misbehaviour (and lack of capacity) may be linked to the obvious difficulties in her private life?

    I wonder just how bad a judicial officer’s behaviour must be before they are dismissed?

    Peter Whellum

  2. This seems quite concerning considering the number of cases it has been shown that O’Shane has incorrectly applied the law. She appears to be quite bias and/or dissenting of the Police Force. I think it’s quite clear that incapacity is shown in the above facts. There were 8 occassions were there had been orders that the matters be finalised by different Magistrates. How many times does an officer of the Court, let alone a Magistrate, have to have errored before Parliament will step in and review this? I would definitely be a concerned victim should I have had a case in front of this Magistrate.

  3. Ms O’Shane certainly takes separation of the judicial function from the Executive seriously! The essence of judicial independence requires that a decision is made through the utilisation of ‘intellect and conscience based on a genuine assessment of the evidence and an honest application of the law’ (Sir Richard Garvie). If a judge precludes the full hearing of evidence the appearance of fairness is lost and public confidence in the judicial process (or Magistrate O’Shane anyway) must be harmed.
    It must be accepted that every judge brings to the process the life experiences that create their personal world view – no decision can be totally without value judgement – but some of these examples definitely cross what you would hope would be a firm judicial line. Are they enough to ask for her dismissal? Perhaps enough for a discussion with her supervisor, but in 25 years she would have been involved in hundreds of hearings. And 56 have come for examination on appeal? Clearly some of the most recent appear to be doozies, but we have snippets of information not all the facts. I think the personal life stuff is salacious and unless there is clear evidence that they impact on her ability should not be there.

  4. In the SMH article from the 25th January, the NSW Attorney-General says the government is referring Magistrate O’Shane to the Judicial Commission because of ‘long-held concerns’……about what Mr Attorney-General? Has this been a topic of conversation amongst the Sydney White Boys Club for a while now? (That includes you, the SMH, Barry O’Farrell and I’ll even add Janet Albrechtson) I’m not suggesting for a moment there are racist and sexist undertones with these allegations (hell, no) and I’m not even going to go into ‘hell hath no fury like a woman scorned’ episode of 2004. So decide if you think she’s a complete nutbag or if she missed that tute which dealt with ‘applying the law’ and do what you need to do, but if you want robots as judges (or judges as robots), let’s activate s128 and add the new provision in s72, ‘Judges appointed by the Governor-General in Council must be of a robotic nature’…….. I bet that Magistrate O’Shane has actually achieved some wonderful things since her appointment in 1986. The Sydney White Boys Club won’t tell you that.

  5. I find this behaviour of O’Shane disgraceful; as for the Judicial Commission resolving to leave her in her position for this long (and I suspect ‘race’ may have played a big role in this decision) leaves an acid in my mouth. O’Shane is clearly not the first Judicial officer to step outside the role of impartial arbiter, but to flout the rule of law is incompatable to the position that she holds, and to leave her there to continue this behaviour is worse. There are far more consequences to the average citizen than just a biased or invalid judgement. O’Shane’s irresponsibility not only costs the taxpayer (DPP, Police) money, but also the average citizen who stands accused or is prosecuting before her for representation and / or an appeal. Her judgements are not sound, her personal character is in question (2004 incident), her misuse of Judicial power is seriously concerning, and her judgements are without basis in law – precedent or legislature. As such, O’Shane and others like her should be removed from the Judiciary immediately, and as Ken has noted previously, the Judiciary should be concerned and finalise an Australian Judicial Code of Conduct. This Magistrate (and others like her) need to be removed from office if only to ensure that the Judiciary maintain the support of the citizenry.

  6. This is obviously a very difficult problem, as it would appear that O’Shane is a remarkable woman and has achieved against all odds. Unfortunately the past years have been ‘fraught with difficulty’. It would seem to me that there have been too many instances where problems have arisen. I can see that it should be possible to counsel a judge if there are issues of concern. In this case, however, where there have been so many different problems relating to the way in which O’Shane has decided a case, perhaps it is time to take a more formal approach. Obviously there have been personal issues for O’Shane to deal with-I actually see this as a lesser issue. The concerns I have are: ‘getting the law wrong in 14 out of 16 cases’, failing to ‘comply with statutory procedures’, denying the ‘prosecutor procedural fairness’ and the list goes on. Why do we have a judge in our system who has so many failings according to our system of law?

  7. In NSW a magistrate (holder of judicial office – s52 Constitution Act (NSW)) can be removed from office by the governor on address from both houses in the same session on grounds of proven misbehaviour or incapacity (s53 Constitution Act (NSW) essentially copied from s72 Commonwealth Constitution). However Professor Ann Twomey highlights that there is uncertainty as to what is meant by “misbehaviour” and “incapacity” and how and by whom it is to be proven (A Twomey, The Constitution of NSW, The Federation Press 2004, p.736). It seems there is a good case to argue that the principles of judicial restraint and judicial bias have been breached as some of the comments made seem to have been unnecessary for their respective decisions. Or perhaps the NSW government could repeat history and abolish and reconstitute the NSW Local Court: A-G (NSW) v Quin (1990) 170 CLR 1.

  8. This certainly is food for thought.

    I can imagine the frustrations that led to O’Shane’s behaviour in relation to the October 2005 incident quoted above. I have read extensively into Indigenous inprisonment rates and it is my understanding that large numbers of Indigenous Australians are incarcerated for offensive behaviour for acts such as foul language. Much of this seems to stem from racially based police targetting and, in many cases, what I consider to be abuse of police discretion. I happen to agree with O’Shanes sentiments that there are no longer community standards with respect to this sort of thing and perhaps the police should be a little less sensitive or exercise their discretion more wisely by not arresting and charging people for offences that are so trivial. All that aside, judicial independence and security of tenure is supposed to facilitate ruthless implementation of the rule of law. Security of tenure is not granted so that a judge can dispense with what the law says and create their own version of justice. As was mentioned in a previous comment, no decision can be made completely value-free. Several of O’Shane’s decisions however seem to reflect a willingness to give effect to personal values at the expense of the rule of law. I do not believe that a judge or magistrate who is not willing to implement the law has any business continuing in office, however I can see that it would be very difficult to remove her under s53 (above).

  9. I cross-posted this article at Club Troppo.The comment below responds to some comments there but is also relevant to some of the discussion here:

    O’Farrell HAS referred O’Shane’s conduct to the Judicial Commission, apparently not on the basis of any single incident but a pattern of conduct and attitude over a long period.

    Note that NSW is unusual in having a Judicial Commission to advise the Parliament on exercise of its judicial removal power, although the Commonwealth is now considering a similar mechanism. Katz talks about separation of powers, however it is a peculiarity of the Westminster system ever since the Act of Settlement 1701 that judicial removal is by Parliament for “misbehaviour” or “incapacity”. Removal on a partisan political basis is inhibited by the Constitution requiring an address from BOTH Houses of Parliament. In NSW there is the additional legislatively imposed check of requiring Judicial Commission proceedings and recommendation as a prerequisite to Parliamentary removal. It actually seems to work quite well. Parliament does not remove judges lightly, in fact it almost never occurs. The Judicial Commission recommended the removal of Bruce J some years ago (mental illness resulting in failing to hand down judgments for years on end) but the Parliament nevertheless voted against his removal. He wisely retired soon afterwards.

    As for Hammygar’s rather silly “racist” epithet:

    (1) Eburn and Townsend’s material about the number of times O’Shane has been reversed on appeal is not probative in itself, even if it IS the case that she is reversed significantly more often than other judges/magistrates. This was also probably true of Kirby J when on NSW Court of Appeal, and the same attributes led to his christening as the “Great Dissenter” on the High Court. No-one (except Bill Heffernan) would have suggested Kirby J was thereby guilty of “misbehaviour” or “incapacity”. You have to look much more closely at conduct than by mere statistics. Kirby J’s judicial reasoning was always rigorous and well within the bounds of rational judicial discourse, even if many of his fellow Justices often disagreed with him. O’Shane OTOH, at least judging by Eburn and Townsend’s material, appears to exhibit scant regard for law, precedent or judicial reasoning processes. However the examples they cite might conceivably be isolated ones in a judicial career that has no doubt encompassed thousands of decisions, a high proportion of which would certainly have involved the Police against whom she is allegedly prejudiced. That’s why it needs a body like the Judicial Commission to conduct a rigorous, objective examination before making a recommendation.

    (2) I have no doubt that some/many police DO (consciously or otherwise) target young Aboriginal men and indeed other conspicuous marginalised groups) for “special” treatment, although some individuals within those groups no doubt merit attention on entirely objective grounds. The problem with O’Shane, again judging on the conceivably selective examples discussed in the post, seems to be that she is just as automatically biased against police as they are against young Aborigines. Neither is desirable, but the position of a judicial officer more critically requires objectivity and lack of strong bias/prejudgment.

    Finally, my impression of O’Shane is a bit like what I thought about poor old Lionel Murphy: great and noble activists and legal reformers in their time, but both probably lack(ed) judicial temperament. I agree with Dan’s comment about the judicial role versus that of a politician or law reformer.

  10. The article leads me again to ponder what is truly meant by ‘misbehaviour’ or ‘incapacity’ of a judicial officer. In Bruce v Cole [1998] NSWSC 220, the answer given seems to be that one should interpret the words with their ordinary meaning.

    If a judge is operating with what one might say is disregard for the rule of law, does not hear all evidence offered at trial, and fails to actually apply the law, is this not proven ‘misbehaviour’? Despite the lack of precedent, and legislative silence on what is meant by ‘misbehaviour’, surely such conduct might meet the threshold (wherever that threshold exactly stands). Nevertheless, I suppose to really understand Magistrate O’Shane’s particular conduct and the surrounding circumstance a fair deal of research need be undertaken. Further consideration as given by Ken with regard to reversing of O’Shane’s decisions, and the comparison with Kriby J might show that perhaps her conduct is not too bad after all.

    In dealing with situations such as that of Magistrate O’Shane, I agree that a judicial code of conduct, would really clear the way. When such a code is finalised I wonder if people will question how grounds for the removal were ever established without it…. Unless of course judges were just never removed!

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