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 ¹ 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.

1. supporters of O’Shane like Professor Mark Findley[↩]