



A strange way to show your appreciation



They shoot judges, don't they? This week her honour Patricia June O'Shane, a NSW magistrate since 1986, faced the Conduct Division of the Judicial Commission of NSW. After 25 years of loyal service at the coalface on the bench of the Local Court - the legal equivalent of the emergency ward of a large inner-city public hospital, her honour's service is now being judged.

She has dealt daily with the squabbles of society's bottom-feeders, the endless apprehended violence orders, the dispossessed, the abused, the abusers - the outpatients of the judicial system overwhelming the courts in growing numbers.

The higher courts of our judicial system work with paper - written and prepared submissions, pleadings and documents. The local courts deal with people: raw, naked, frightened, angry and often in their first encounter with the brutal force of the state.

Her honour was the first indigenous court officer in NSW. She has served her people and the population well against the background of sustained and savage injustices against their race since colonisation. Royal commissions and inquiries have pointed out the disgraceful treatment of indigenous peoples at the hands and fists and feet of our police and Corrective Services staff. With the appointment of O'Shane, someone said, ''One of them has become one of us.''

Due to the ageism built into our constitution, drafted when few people lived past 72, judges must retire at that age. Although I was raised to never mention a woman's age, O'Shane turns 72 next year and her last working day is February 4. She has only about a dozen working days before being sent out to the paddock. One might think there is little utility in investigating her recent conduct - at such a late stage of her career - by a full hearing of the Conduct Division.

The criticisms are of her conduct in the hothouse of the Local Court in four cases over which she presided in the past few years. Thereafter, the division prepares a report of its findings and sets out a number of options, either going to Parliament to decide the issue or to the Chief Magistrate for his decision.

The whole process of this examination, and the possible pursuit of other options, is to assess her honour's fitness to sit on the bench. Her honour's final weeks as a justice will be wasted while the authorities examine whether she is fit to do so, when soon she will be well into her long-service leave and retirement.

Her hearings this week were public. The allegations against her involved four criminal cases that she heard and decided adversely to the prosecution, where the police subsequently appealed and were predominantly successful. Her alleged judicial errors were corrected in the normal way.

At first instance before her, she dismissed each of the four cases prosecuted by police. The complainants against her in the Conduct Division are the Attorney-General, Greg Smith, SC, and Chief Superintendent Tony Trichter.

The police and prosecutors are complaining that the first indigenous magistrate, after 25 years of faithful service, acted ''perversely and without impartiality'' when she disbelieved a number of police officers and queried whether a particular witness ''didn't like blacks'' in a case where the accused was black. Counsel assisting the Conduct Division submitted her honour ''implied without justification a witness was motivated by racism''. The witness had described the offender twice as ''dark-skinned'' and as a ''filthy pig''. Heaven forbid, a black judge asking a white witness whether or not he ''disliked blacks''.

O'Shane likes to cut to the chase, to distil the case down to its essentials. After hearing the evidence of two police officers, before the police case finished but with no real evidence to come, she said she didn't believe the two officers' ''bag of lies'' in a speeding matter. The prosecution argued that she was bound to consider their evidence ''at its highest for the Crown'', that is, to forget the lies and inconsistencies. She told the prosecutor that the cops' evidence was ''unreliable'' and, ''I have seen it and I simply don't believe it''. In my view, she was right in practice and in law. If a witness's evidence ''falls of its own inanities'' then it cannot be resurrected, corroborated or revived. It is a nullity. Her honour said to prosecutors rhetorically, ''Why should I hear further evidence if it won't make any difference?'' The four cases were overturned on appeal by the police. The system works.

My opinions are personal to me. Why are we spending time humiliating a magistrate at the twilight of her career about matters that were already corrected on appeal, when her honour will retire by force of law? The essential issue is her ability to sit as a judicial officer, when in reality she doesn't have any more cases to sit on. It seems an exercise in futility, humiliating and of no utility - a waste of resources.

The irony of O'Shane's situation is heartbreaking. Our first black magistrate, appointed to remedy generations of racism, is now herself alleged to be a racist and lacking impartiality to white police officers.

The answer to my question above is ''Yes'', they do shoot judges and burn them as witches at the stake when they try to balance generations of abuse and decide cases by disbelieving police officers and their ''bag of lies''. Our institutions will only work if judicial officers query the reliability and credit of police appearing before them and are not herded off the bench for rocking the boat, pricking balloons and testing the evidence.

The Attorney-General and the superintendent complain when the shoes are on the other feet and are aimed at them. We need fiercely independent, fearless decision-makers on our benches, such as Pat O'Shane. We should not persecute them for alleged errors of law that have been the subject of the appeal process and then conduct an autopsy of their judicial life when it is in effect over and serves no purpose in the dozen days before she retires. How does this assist the machinery of justice?

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