NSW Magistrate Faces Misconduct Hearing

A hearing commenced yesterday in the Conduct Division of the Judicial Commission of NSW into complaints that a magistrate abused her position by bullying and belittling defendants, calling on prosecutors to press additional charges against them and ordering that they remain behind bars without hearing submissions from either the prosecution or defence.

Former Newcastle Family Law Barrister, Magistrate Dominique Burns, is facing a week-long misconduct hearing after a number of complaints were made against her last year by two Legal Aid lawyers.

The Magistrate was suspended in the wake of the complaints and she is now facing the prospect of a formal finding of misconduct, which would result in a report being prepared by the Judicial Commission and forwarded to State Parliament, which would then consider whether to remove her from the bench.

The complaints

A Barrister assisting the Judicial Commission, Kristina Stern SC, submitted that the hearing would examine the conduct of the Magistrate towards 17 defendants between June 2016 and February 2017.

Ms Stern outlined two occasions when the Port Macquarie Local Court Magistrate ordered defendants to remain in custody without hearing from either the prosecution or defence lawyers, which it is alleged amounts to an abuse of detention powers and denial of procedural fairness.

The Commission was told that on one of the occasions, the defence lawyer for a man accused of driving offences commenced verbal submissions on behalf of the client before the Magistrate ordered that the defendant be placed in the fully-enclosed dock, before being taken into custody.

It is alleged the Magistrate later told the prosecutor and defence lawyer that she did this to “give him a bit of a scare”.

“No reason was given for remanding… [the defendant] in custody”, Ms Stern told the Commission.

“Neither was he given the opportunity to make submissions before he was remanded in custody”.

On another occasion, the Magistrate allegedly ordered that a man accused of stealing a poker machine payout of $167.39 be remanded in custody, before reversing her decision a week later.

The Magistrate is also accused of telling prosecutors, “there must be other charges laid” in respect of a female defendant, and “are there other charges pending, and if not why not?” in relation to a man before her.

Ms Stern submitted that the Magistrate’s actions significantly affected “vulnerable members of the community” who were subjected to her Honour’s “repeated misbehaviour” while before the court.

One of the defendants, Ms Stern explained, was a cognitively disabled Indigenous man who received a suspended prison sentence that was twice the maximum penalty for stealing a bicycle.

“Actual injustice can be seen to have been occasioned as a result of her Honour’s conduct”, Ms Stern submitted.

Explanation for conduct

The Magistrate’s criminal defence lawyer, former NSW Bar Association President Arthur Moses SC, told the Commission his client “accepts without reservation that mistakes were made” but explained the Magistrate was under enormous stress at the time.

“These mistakes were not deliberate nor was there any wilful blindness”, the Barrister submitted.

He added that his client’s errors were the result of a “crushing workload… that could be described as a tsunami, not just a huge caseload”.

He explained there were more than 1,100 pending cases at Port Macquarie court (old courthouse pictured) when his client arrived, which caused a decline in her mental health.

He tendered a medical report which confirmed his client has been receiving treatment for major depressive disorder and anxiety disorder.

When can a Magistrate or Judge be Removed from the Bench?

The procedure for removing a member of the judiciary from the bench differs based on whether they preside over Federal (Commonwealth) or State courts.

At the Federal Level

The position of Justices of Commonwealth Courts such as the Family Court, Federal Court and High Court of Australia is protected by no less than the Australian Constitution.

Their time on the bench expires when they reach 70 years of age, but other than this, there are only two grounds under which they may be removed from office: which are “proved misbehaviour” and “incapacity”.

The mechanism for removal is contained in Section 72 of the Constitution, which mandates the removal of Justices in the said circumstances by the Governor-General in Council on an address from both houses of Parliament in the same session.

New South Wales

The procedure for removing judges and magistrates in NSW is based upon the federal model.

Accordingly, no holder of a judicial office can be removed except by the Governor on address from both houses of the NSW Parliament in the one session.

Again the only reasons that can justify the removal of a judicial officer in NSW are proved misbehaviour or incapacity.

And judicial officers in NSW are given the additional protection of section 41 of the Judicial Officers Act 1986 which states that it is necessary for a report of the Conduct Division of the Judicial Commission to be made before the case can be referred to Parliament.

The Commission is expected to make a decision regarding whether a report will be prepared for Parliament after the hearing has been conducted.

How often are judicial officers removed?

It is very rare for member of the judiciary to be removed in Australia – in fact, there have only been a handful of times when this has occurred.

The first instance was in 1843 where Justice Willis of the Supreme Court was removed before the current laws were in place; but he successfully appealed to the Privy Council back in England and was reinstated.

A high court justice has never been removed, although there were investigations into Lionel Murphy at one time. Justice Murphy was acquitted of two counts of attempting to pervert the course of justice, but lived only another six months after his name was cleared.

In the Local Court, a number of magistrates who were facing the possibility of sacking, including Barry Woolridge or Ian McDougall, resigned before a decision was made by Parliament.

In 2011, NSW Magistrate Jennifer Betts came under scrutiny when accused of bullying defendants in court and treating them unfairly. Four complaints were made against her between 2003 and 2009 which formed the basis of an inquiry into her conduct.

Betts told Parliament that she was suffering from depression and had recommenced her medication. She said that she didn’t see any reason why she would have another lapse and showed contrition; acknowledging that her behaviour was not acceptable.

The ultimate decision then lay in the hands of Parliament, who decided in Betts’ favour.

Her remorse won on the day, as MPs from all sides of politics condemned her behaviour but ultimately decided that it did not warrant her losing her job.

And another Sydney magistrate, the late Brian Maloney, faced the prospect of being sacked after he too was accused of inappropriate behaviour; which was a surprise to many lawyers who saw him as an extremely intelligent, jovial, pleasant and fair magistrate to appear before.

Maloney was under treatment for bipolar disorder. He too managed to keep his job, with 22 votes in favour of his return to the bench and 15 against. But Maloney tragically lost his life due to health issues within 2 years of the inquiry.

Then, of course, there is the notorious case of Justice Marcus Einfeld who was removed from office, stripped of his Order of Australia and sent to prison after lying about a speeding ticket.

The dismissal of magistrates and judges is an issue that still sparks a considerable amount of debate in the community – with some believing that members are out-of-touch and should be made more accountable.

But as former High Court Justice Mason points out, the independence of the judiciary is a fundamental feature of our justice system – and should be used to protect the public rather than allowed to sway to the expectations of any particular body.