O’Shane: allaged breach of duty

Controversial NSW magistrate Pat O’Shane was successful in her defamation action against The Sydney Morning Herald. She sued over an item in the paper’s comment pages by right-wing columnist Janet Albrechtsen. 

Acting Justice Rex Smart rejected the defences of comment and qualified privilege and awarded the aggrieved plaintiff $220,000 in damages.

She pleaded defamatory imputations that she is biased; biased against the police; in breach of her duty as a magistrate in dismissing charges against four women who pleaded guilty to defacing a billboard when she should have found them guilty; dismissed charges against Aborigines because she believed the charges were an habitual form of police harassment.

It was an odd case in many respects, not least because Rex didn’t accept aspects of Pat the Rat’s evidence.

Much of the difficulty arose because Albrechtsen regurgitated a claim from an earlier Sydney Morning Herald interview with O’Shane conducted by journalist Adrian McGregor.

He reported that O’Shane in one day dismissed 116 charges against Aboriginal defendants at Brewarrina Local Court. “Almost without exception” the charges were for offensive language which, he said, O’Shane believed were a form of “habitual police harassment of Aborigines”.

The claim was wrong, but O’Shane didn’t correct McGregor. However, when Albrechtsen repeated it, the paper was sued and it was translated into one of the defamatory imputations that arose from the article.

The plaintiff accepted the figure of 116 charges being dismissed when answering interrogatories.

However, in evidence at the trial she denied she had dismissed 116 charges against Aboriginal defendants in a single day in 1989. She also denied that she had told McGregor that these charges were a form of habitual police harassment.

Smart said the answer from the plaintiff was incorrect, whereas McGregor’s evidence “impressed me as being correct”. It’s not often that a judge will accept the word of a reptile over that of a judicial officer. Something’s amiss.

The judge went on to criticise O’Shane evidence in relation to the resolution of complaints about her conduct as a magistrate lodged with the Judicial Commission.

“She could not remember whether there were any such complaints outstanding as at December 16, 1989. I thought that evidence was incorrect.”

Albrechtsen with a fan

Nor could the plaintiff recall prior to December 16, 1999 whether her decisions in the Kanaan police shooting case had attracted considerable criticism. Again, that evidence was not considered to be correct.

On the other hand Albrechtsen, the author of this beastly attack, was found to be a truthful witness, honestly believed in the truthfulness of the imputations and was not motivated by malice.

No matter, Pat won the round. Fairfax appealed and Giles, Ipp and Young shaved $45,000 off Pat’s damages of $220,000.

She lost 50 percent of her imputations on appeal, yet the reassessed damages were only reduced by 20 percent.

The costs order was that Fairfax pay the plaintiffs costs for the trial and 25 percent of the the newspaper’s costs for the appeal. A special leave application by the publisher went nowhere.

It was a hard fought battle with Bret Walker SC for Fairfax (Albrechtsen) and Bruce McClintock SC for the magistrate.

e story extra legs.

The judge was given a sample of his blood taken at the same time as the hospital extracted some for the police investigation into the car crash. As is quite often the case, the sample provided to the police was promptly lost.

Yesterday, (November 3) Mrs Shaw quite correctly sent packing detectives who bowled up to the front door to ask for her husband’s blood sample.

The matter is to be dealt with through Shaw’s lawyer, probably Adam Searle, who was his chief of staff as Attorney General of NSW and is now a Sydney barrister.

The Australian gives the distinct impression of lusting for a scalp and has been pushing the story hard since day one.

Yesterday it described the fiasco as a “stench in the halls of power and justice”. Today (Nov 4) it dug up the old Tory stickler and retired Queensland Appeal Court judge Jim Thomas who delivered a sermon:

“If he really did drink-drive, the honourable thing to do would be to come clean … It’s possible if this affair carries on a long time, all the judges in the system will be brought under a cloud, and public confidence gets shaken.”

Thomas was billed as the author of Judicial Ethics in Australia.

On the other hand, Simon Longstaff from the St James Ethics Centre told the ABC on Tuesday (Nov 2) that it would be an unfortunate precedent if Justice Shaw did surrender his sample.

“If Justice Shaw was to provide to the police … the evidence which they appear to have lost, then in some sense I think it creates an exception to that requirement that the Crown do its work in order to mount any case which could lead to a conviction.”

What Thomas is saying is, for the sake of the public’s confidence in the judiciary, judges caught in these predicaments cannot look to the protections of the criminal law that are afforded to everyone else.

If Jeff Shaw hands over his own sample and it is admissible and it does show his blood contains a level of alcohol over the prescribed limit, then the prospect is that he may plead guilty or otherwise be convicted of a drink driving offence. His licence will be suspended and he’ll be fined.

The way other judges have handled similar humiliations present conflicting precedents.

On June 3, 2002 Judge John Hanlon of the County Court of Victoria was convicted and fined $700 on a drink driving charge and had his licence confiscated for 18 months. He was more than three times over the limit. He was intercepted by police when driving erratically on the Monash Freeway.

Victorian Attorney General Rob (Fuckin’) Hulls let fly, saying the judge’s conduct was “deplorable”. He added:

“By his actions Judge Hanlon has brought shame on himself and also on the court.”

However, the Attorney General thought the judge’s removal from the court was not warranted. The “good behaviour” requirement for judicial officers was too ill-defined and is unlikely to encompass Hanlon’s drink driving offence.

He was stood down from hearing criminal cases and to this day still only sits in the civil sphere.

In Canada, the Chief Justice of Quebec, Lyse Lemieux, stood down voluntarily last August over a drink driving incident.

She was driving home from a game of bridge at about 10pm on August 5 when her car struck a stationary vehicle on the side of the highway.

No one was injured, but she stayed at the scene and was picked up by the coppers. She was double the legal limit, registering blood alcohol levels of 0.17 and 0.15.

She is to appear in court next week on charges of driving while impaired and having a blood-alcohol level above the legal limit.

By all accounts, she was a well-regarded chief justice. One lawyer was quoted in the Globe & Mail as saying:

“This is tragic. The loss to the public far outweighs the appearance of propriety.”

Chief Justice Lemieux said:

“All citizens are equal before the law and I am taking my responsibilities seriously.”

Jeff Shaw is a sensitive and decent man. Unlike Hanlon in Victoria he may not have the stomach to stick it out.