Slagging judges and lawyers

The Weekend Australian’s editorial described the non-custodial sentence handed out to hit-and-run-killer Adelaide criminal lawyer and former police prosecutor Eugene McGee as a “travesty of justice”. Certainly a $3,100.00 fine and licence disqualification appears grossly inadequate given the facts:

His green late model Mitsubishi Pajero 4WD hit the back of Ian Humphrey’s bicycle, sending the father-of-two flying in the air before he landed on the bonnet of McGee’s vehicle and cannoned into the windscreen. …

Prosecutor Peter Barnett had argued McGee’s actions were “a gross failure to keep a proper lookout”, saying that he would have been able to see the cyclist since his line of sight was higher than the car in front.

But McGee was acquitted of dangerous driving by a jury, and found guilty only of the lesser offence of driving without due care. He entered guilty pleas to failing to stop at the scene of an accident and failing to render assistance. It appears that the maximum the sentencing judge could have imposed was 1 year’s imprisonment and a fine and licence disqualification. I think that the judge should have regarded this situation as being at the serious end of the spectrum for the relevant offences, and imposed a sentence close to the maximum i.e. imprisonment for (say) 10 months.

But the real mischief lies elsewhere.

The maximum sentence for leaving the scene and failing to render asssistance ought to be much higher, especially in the case of fatality. Even more importantly, McGee largely avoided conviction for dangerous driving by:

(a) not presenting himself to police for 6 1/2 hours, conveniently taking himself beyond the latest time when the could take an admissible blood sample from him (they didn’t bother to test him anyway); and

(b) finding a psychiatrist prepared to write a report concluding that he was suffering from a dissociative state occasioned by “post traumatic stress syndrome” caused by the stresses of being a lawyer involved in the Snowtown “bodies in the barrel” case! This supposedly provided an innocent explanation for his leaving the scene and failing to turn himself in to police for such a fortuitously long period of time.

As I’ve argued before (e.g. in the case of Anu Singh), the use of psychiatric reports in serious criminal cases raises some very real questions about the fairness of the criminal justice system. It’s always possible for a criminal defendant to “shop around” and find a psychiatrist ready, willing and able to diagnose a defendant as suffering some conveniently exculpatory psychiatric condition. An experienced criminal lawyer like McGee (or whoever he instructed to act for him) would be ideally placed to know which experts could be relied on in that regard.

By contrast, the prosecution is unable to have the defendant psychiatrically examined by its own experts, leaving the defendant with a tactical advantage that may well prove decisive in some cases.

I think there’s a strong case for legislating to require all defendants relying on psychiatric defences to submit to examination by an independent psychiatrist nominated by the state. That way, at least juries would have a reasonably fair basis for assessing the credibility of such claims by accused criminals. I can’t think of any fundamental civil liberties principle that requires preservation of an accused person’s right to refuse to submit to psychiatric examination where they’re advancing a psychiatric defence themselves.

Moreover, and as I’ve also argued previously, one can even make a good case for handing fact-finding on such expert evidence to a suitably qualified expert inquisitorial tribunal rather than a lay jury that almost by definition has no rational basis for choosing between competing experts.

Strangely, instead of concentrating on these apsects, the Weekend Oz editorial used the McGee case as a pretext to lash out at recent defamation decisions involving judicial officers:

The Australian does not offer an opinion on the suitability of the sentence imposed by Mr Worthington. Melbourne magistrate Jelena Popovic and her Sydney colleague Pat O’Shane have won six-figure sums in defamation suits following criticism of their professional performance, reflecting a distaste for frank comment in our legal community.

As I commented above, the judge’s sentence does appear excessively lenient, even though it clearly wasn’t the main factor in McGee avoiding imprisonment. However, I don’t think one runs a significant risk of being sued successfully for defamation for simply saying so (otherwise I wouldn’t have just done it). Both the Popovic and O’Shane cases involved much more extreme language and severe criticism of the behaviour and performance of the respective magistrates. Nevertheless, both cases also involved some fascinating legal and policy issues, and so they’re worth a long digression.

In the Popovic case, the publisher of the Herald Sun (i.e. the same Murdoch group that publishes the Oz) lost because of the operation of the so-called Lange extended qualified privilege defence grounded in the implied constitutional freedom of political speech. Although the trial judge accepted that RWDB op-ed columnist Andrew Bolt was engaged in political speech about magistrate Popovic, it is an entirely sensible requirement of the defence that the person publishing must do so reasonably to be entitled to rely on the defence. Reasonableness has several elements, most importantly for present purposes that the publisher must have either believed the published imputations to be true or at least not believed them to be untrue. In Popovic:

The first defendant tendered no evidence on this or any other issue in the trial other than the evidence of the second defendant, Mr Bolt. The failure of the first defendant to lead evidence as to the state of mind of its relevant executives might well be fatal to its case on the issue of reasonableness anyway, but, having regard to the conclusion which I have reached by reference to Mr Bolt’s evidence, I shall assume that the corporate entity is able to adopt his state of mind; a proposition the correctness of which is not immediately apparent.

The second defendant Mr Bolt, swore answers to interrogatories in which he said that at the time of publication of the article he did not believe that the plaintiff had so misconducted herself in a criminal prosecution for arson that her removal from office was warranted and did not believe that on another occasion she had so misconducted herself when she hugged two drug traffickers that her removal from office was warranted. In his oral evidence Mr Bolt maintained that it was not his opinion that the plaintiff should be dismissed from office and that he did not believe that that was what the article meant. However, when asked whether, if he had inadvertently conveyed the intention that she ought to be dismissed he had made a serious mistake he answered: “No”. The next question and answer were as follows:-

“No; and if you’ve done it, you really ought to apologise and retract, shouldn’t you? I’m not so sure about that, in the sense of this. If people gain the impression from what I’d written that they thought she should be sacked, then that’s their point of view, they’re entitled to it. And I won’t apologise for them having that point of view.”

Having regard to that uncontroverted evidence of Mr Bolt’s state of mind it is clear that he did not care whether the article conveyed the defamatory imputation or not. That is the only reasonable inference which can be drawn from his oral evidence.

I couldn’t agree more. You’d have to wonder why the Oz is blaming the hypersensitivity to criticism of the legal community for the Popovic result rather than the arrogant stupidity of Andrew Bolt.

On the other hand, the O’Shane case does look much more like legal industry hypersensitivity, not to mention unjustified stifling of legitimate (if strongly worded) political discussion.

The judge found the great majority of the statements and imputations by yet another prominent RWDB columnist Janet Albrechtsen to be justified or fair comment or covered by Lange qualified privilege, except that she had over-reached in a small number of respects that many people might have regarded as trifling in the extreme. For example, Albrechtsen characterised O’Shane as being “often angry at what she perceives as injustices in our society” whereas the judge felt that the evidence only justified saying that she was “sometimes” angry in this way!!

And, although the judge seemed to concur with the defendant Fairfax group that O’Shane had gone much too far in her condemnation from the bench of the Berlei bra company as oppressors of women (in the course of releasing without conviction or penalty some feminists who had defaced a billboard showing a woman wearing a Berlei bra being sawn in half by a magician), the judge nevertheless felt that Albrechtsen’s failure to point out that O’Shane’s substantive decision had not been reversed on appeal was fatal to a successful defence in regard to that aspect of Albrechtsen’s article. But surely that objection wasn’t to the point. Any fair reading of Albrechtsen’s article (which is reproduced in full at the beginning of the judgment) indicates that she wasn’t criticising the substantive sentence handed down by O’Shane in the Berlei bra case at all, but rather her arguable abuse of her judicial position to advance her own inflammatory political opinions from the bench:

They [supporters of O’Shane like Professor Mark Findley] support the injection of convictions into the courts by activist judges provided they are in line with their own. They were the first to chastise Justice Derek Bollen who made comments in a rape in marriage case which some suggested gave the impression that he condoned ‘rougher than usual handling’ by husbands to persuade wives to have sex. He was similarly castigated for telling a jury that a wife who had killed her husband had not been ‘sufficiently battered’ to claim self-defence.

Why should Albrechtsen have inserted a qualifier to mitigate a criticism she wasn’t making? Moreover, Albrechtsen’s article ended with a perfectly sensible(an adjective I wouldn’t usually associate with her) acknowledgement that the fundamental value of judicial independence may require society to tolerate the ideologically opposite excesses of both Bollen and O’Shane. Mind you, I wonder whether she ever wrote a column labelling Bollen as incompetent or otherwise unfit for judicial office?

There were some other respects in which the judge held that Fairfax had fallen short of making out good defences to some aspects of the article, but the previous two examples are reasonably representative of their nature and seriousness. As I said, many people would regard the legal shortcomings of the Fairfax case as trifling in the extreme. But it’s in the nature of defamation that a defendant only has to fail in defending a single one of a multitude of imputations in order to lose the case and incur heavy damages.

In any event, I agree with the Oz editorial that it would be difficult not to conclude from the O’Shane decision that publicly criticising judicial officers is unacceptably fraught with defamation landmines. O’Shane won $220,000 in damages, after earlier also winning $90,000 in the defamation casino from a Sydney radio station for comments by the Secretary of the Police Association to the effect that she carried out her duties unfairly in a manner which discriminated against members of the Police Force and that her conduct as a magistrate warranted an investigation by the Attorney-General and the Minister for Justice (the Police Association later retracted and apologised).

There’s a strong argument for legislative removal of the right of judges and magistrates to sue for defamation about any criticism of their judicial performance, however extreme that criticism might be. Legal protection should be limited to the laws of contempt. That would arguably put the balance where it belongs in relation to facilitating full and fearless community scrutiny and democratic accountability of judges for their performance.

On the other hand, with Attorneys-General (especially federally) refusing to fulfil their traditional role of defending the judiciary (and sometimes even leading the critical chorus), judges clearly must have some way of defending themselves and the integrity of the judicial process. Otherwise an endless succession of cheap, politically-motivated Laura Norder stunts by cynical politicians may end up unjustifiably undermining public confidence in the judiciary. The balance between competing public interest imperatives in this area is a difficult one and there’s no magic answer. But I certainly don’t feel comfortable about judges’ seemingly overly comfortable place at the roulette table in the defamation casino.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Dave Ricardo
Dave Ricardo
2021 years ago

“I think there’s a strong case for legislating to require all defendants relying on psychiatric defences to submit to examination by an independent psychiatrist nominated by the state.”

I agree. Let the independent experts battle it out.

That’s the way it’s done on Law and Order. Is this an artistic invention for a TV show or do the Septics really do it that way?

Ken Parish
Ken Parish
2021 years ago

Dave

There’s nothing preventing the prosecution from calling psychiatric evidence, but the defendant isn’t required to submit to a physical/clinical examination by the prosecution, and invariably declines to do so. Consequently the prosecution experts are driven to make assessments of mental state relying on second-hand indicators like the defendant’s demeanour in the witness box (if the defendant actually gives evidence, which typically he/she doesn’t), or from drawing different conclusions from the material in the defence psychiatric reports. It’s a significant disadvantage, because the defence is able to suggest with some force that its experts were the only ones reliably in a position to assess their client’s mental state.

I have no idea of the US situation (it may well differ from state to state, as to a much more limited extent it does in Australia).

Scott Wickstein
2021 years ago

This is a South Australian case, and in South Australia, if you have the right connections, then legal due process does not really apply to you. This chap being a former prosecutor himself certainly is part of the ‘elite’ that benefit from special treatment from South Australian judges.

This is by no means unprecedented; the Nemer case caused so much outrage that the Premier was driven to act, and the DPP was hounded out of his job because of it.

But the damage has already been done a long time ago; public confidence in the impartiality of the South Australian judiciary died sometime last century.

This, by the way, is not a political left/right thing- its more a social thing. And unfortunately there’s not the political will to do much about it.

saint
saint
2021 years ago

Ken I recently commented on this on my blog. There is another issue which I didn’t include in my own summary. The defense only introduced the psychiatric evidence very late in the case and without notice and this is one of the things that a Judicial Procedures Review committee (or something like that) is supposed to be considering – can’t find the link to the relevant article just now.

The jury were also never told that Eugene McGee himself is a prominent drink driving lawyer (never mind his involvement with Snowtown and Liddy) and lawyer David Edwardson (who was his first phone call) is a death by dangerous driving defence specialist.

OK this just highlights Scott’s point (and also mine) that justice is for the i*nce*stuous* in S.A. but I wondered again today as to why this could not be pointed out as relevant given the strange sequence of actions. I mean, it doesn’t really sound very disassociative in my book.

*Your blog finds the ‘i’ word as objectionable as we do it seems.

saint
saint
2021 years ago

p.s. for laypersons like me, what is the key difference between defamation and law of contempt?

Ken Parish
Ken Parish
2021 years ago

Saint

Thanks for the additional information in your first comment. It makes it all sound even fishier than I had realised.

As for your question, defamation is a tort or civilly actionable wrong, where private litigants (including judges or magistrates as private citizens) sue each other for money damages. Contempt, on the other hand, is a power held inherently by superior courts, in that they (and therefore their judges in that capacity) may punish contempt of the court (i.e. conduct tending to scandalise the court or bring it into contempt or disrepute), including by imprisonment, even for indeterminate duration until a person “purges” their contempt. Superior courts (e.g. state Supreme Courts) have full contempt powers, which would include the power to punish journalists in a proper case. Magistrates’ courts, on the other hand, often only have power granted by statute to punish contempt committed in the face of the court (which generally wouldn’t include an article written by a journalist, however scandalous or damaging). If Parliament were to take up my suggestion of abolishing the right of judicial officers to sue for defamation for publications conerning their judicial conduct, it would probably be necessary to widen the powers of magistrates’ courts to punish contempt.

saint
saint
2021 years ago

Thanks Ken – hey I even understood that.

BTW, this wasn’t the article I remembered but here is one referring to the problems of introducing expert witnesses. Ironically former DPP who made the commentary.

Oh the two witnesses named in this article are a couple of brothers who apparently saw McGee driving badly…but there is some question as to whether their statements correspond to their statements made to the police. Messy alright. In any case they weren’t called.

Ken Parish
Ken Parish
2021 years ago

Saint

We’ve disabled html (including hyperlink tags) in comments in a partly successful attempt to deter blog spam. Sorry for the inconvenience, but could you repost your link? I’m interested in looking more closely at this issue.

saint
saint
2021 years ago
saint
saint
2021 years ago

If you can;t read that the last bit is
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GordonT
GordonT
2021 years ago

A very interesting post. I have for a long time thought in the case of a person leaving the scene of an accident, the major reason is that the driver is intoxicated. By leaving the scene, the driver can avoid the seriousness that this makes the case.

I believe that in this situation, the onus of proof with regards being drunk, should shift to the defendant.

derrida derider
derrida derider
2021 years ago

Scott’s right – this is a flagrant case of the boys looking out for each other. I’ve got a relative who works in the SA “justice” system and he has some pretty hair raising tales along these lines.

It seems to me that the editor of the Advertiser could sell a lot of papers by running a real campaign to get this club disbanded – and it would even serve the public interest. Where are the muckrakers when you need them?

observa
observa
2021 years ago

“I believe that in this situation, the onus of proof with regards being drunk, should shift to the defendant.”

That’s what the Opposition are arguing for now, along with increased penalties, similar to the situation of refusing or evading breath testing. Apparently this loophole existed with leaving the scene of an accident.

The govt is calling for Mcgee to be disbarred, although interestingly enough it is only automatic for his professional association to do so if he was found guilty of a charge with a sentence over 12 months. I think the driving without due care and leaving the scene, rather than driving dangerously took care of that. The whole case smacked of one law for lawyers and another for the plebs. The airwaves were ballistic, not least with people ringing up to compare penalties for plebs. What really irked most was this coward’s failure to even say sorry to the victim’s family and hide behind the wall of silence of another barrister. A State is looking forward to the victim’s family taking this pond scum to the cleaners civilly, but we all know what sort of immune trust shells and the like, the top end of town can buy, particularly with the lags in getting to court.

observa
observa
2021 years ago

Independent ‘No Pokies’ MP Nick Xenophon has raised an anomaly in the law in SA as the Govt scrambles to increase the penalties for leaving the scene of an accident. Apparently a guilty driver like McGee could have left the accident scene and denied he was driving at the time and the penalty would have been a $500 fine to the vehicle’s owner. This is similar situation to owners of cars who are snapped by speeding and red light cameras. In the absence of any witness/es to McGee’s accident, he could have taken this stance and copped a $500 fine. I guess we can be thankful for small mercies, that McGee eventually rang police and fessed up.

observa
observa
2021 years ago

Ramping up the penalty to 10yrs prison for leaving an accident scene here http://www.news.com.au/story/0,10117,15175090-29277,00.html

saint
saint
2021 years ago

Um, he might have figured it hard to prove he wasn’t driving (he may have been seen leaving the hotel in the vehicle etc etc) – it seems he would have exploited such a loop hole if he could.

I am a bit disappointed that Kerin is focussing on inadequate police and DPP resourcing (to score the political points?) given the range of issues which contributed to this outrageous outcome.

Hope the commission throws more light than heat.