One Queensland magistrate has caused concern amongst members of the legal profession after indulging in conduct that is out of keeping with what is expected of a person who holds such a powerful and important position.
The magistrate, Stuart Shearer, already had a reputation for being one of the harshest magistrates around, earning him the nickname ‘Judge Dread’ from one local newspaper.
Criminal lawyers have told the Courier Mail that cases decided by Shearer are regularly appealed, and that he is often demeaning towards defendants.
But what happened when he faced one Indigenous defendant went beyond the realms of simply being tough on crime.
The defendant had been charged with various property offences, and initially pleaded guilty through his legal aid duty solicitor. But the defendant later received legal advice that a defence may be available to the charges, and she therefore sought to change her plea to not guilty.
In order to do this, she sought the testimony of the legal aid duty solicitor who had spoken to her earlier, and who allegedly failed to advise her about a defence.
After hearing about this, Magistrate Shearer is said to have picked up the phone and called the duty solicitor directly. The phone call is what led to accusations of seeking to improperly influence a case by contacting a witness who was supposed to testify before him in court.
Why Can’t Magistrates Do Their Own Investigations?
Magistrates (and judges and juries for that matter) are not permitted to undertake their own enquiries outside of court because their job is to decide cases based upon admissible evidence that is presented at hearing, rather than any outside information that they might dig up.
Such outside inquiries would bypass the laws of evidence and lead to procedural unfairness, as anything might be considered – include hearsay and unfounded materials – and neither side would have an opportunity to vet and potentially challenge the admissibility of that information.
There is, however, one exception to this general rule. It is the ‘judicial notice’ exception which says that magistrates and judges are entitled to rely upon common knowledge; in other words, facts and knowledge that are obvious and not open to interpretation.
However the conduct of Magistrate Shearer was clearly outside this exception.
Having a private conversation with a witness about an evidentiary matter, which is what Magistrate Shearer is alleged to have done, is disallowed because of the potential scope for interfering or improperly influencing the witness, not to mention circumventing the laws of evidence and procedural fairness.
It may in some circumstances also constitute a criminal offence, namely attempting to pervert the course of justice.
The Magistrate who Googled a Defendant
Magistrate Shearer is by no means the only magistrate to be in hot water after conducting his own enquiries outside of court.
Last year, a Western Australian magistrate was taken off a case after googling a defendant, which was found to be a breach of procedural fairness.
While that magistrate’s inappropriate conduct was discovered, it is open to speculation as to how many other magistrates have made the same or similar enquiries.
Previous conduct by Magistrate Shearer
This is not the first time that Magistrate Shearer has been accused of unlawful activity.
In 2013, an 18-year-old daughter of a defendant was asked by the police prosecutor to leave the courtroom during a hearing. When she refused, a struggle ensued during which it was alleged that she swore at Magistrate Shearer.
She was then arrested and held in custody for four hours – without being charged.
When she was eventually brought back to Magistrate Shearer’s courtroom, her defence lawyer argued that the detention was beyond the Magistrate’s powers.
What happened to Magistrate Shearer?
There is no judicial commission in Queensland to discipline delinquent local court magistrates – instead, they may be counselled by a senior colleague.
The allegation of improperly influencing a witness came to the attention of the Queensland Chief Magistrate, Ray Renaudo.
Renaudo says he is now confident that the matter has been dealt with and that Shearer was suffering from an ongoing medical issue. Medical advice will be sought in relation to any decisions regarding his future obligations.
Shearer was recused from the matter, and his circuit in Emerald, Central Queensland, has been cut short by several months.
But despite his ‘dressing down’, Magistrate Shearer continues to serve as a magistrate in Brisbane.
Some might say that this amounts to no punishment at all.