Those who are sent to court are entitled to a fair hearing from the magistrate or judge, but unfortunately this does not always happen.
Magistrates have a difficult job in our criminal justice system, often hearing large numbers of cases every day. Although most of them are fair and ethical, there are certainly exceptions.
Take, for example, the Perth Magistrate who inappropriately conducted internet searches about a defendant, or the NSW District Court judge who compared incest and homosexuality, or the Sydney Magistrate who was reprimanded after years of bullying and belittling those in her courtroom.
One of the most notorious judges in recent times is Tim Carmody . Possibly the most hated judge in Queensland, Carmody was a vocal supporter of the Campbell Newman government and its ‘anti-bikie’ laws. His dismissive attitude towards defendants in criminal cases, and his arrogance towards other lawyers, made him unfit for office in the eyes many.
After just a few months as the Chief Justice of the Queensland Supreme Court, Carmody decided that he no longer wanted to preside over court hearings, but preferred to attend functions and other outside activities. He therefore took it upon himself to become ‘unavailable’ for court. Carmody eventually resigned after enormous pressure.
Making a Complaint
We are often contacted by those who are angry about their unfair treatment at the hands of a magistrate or judge, and who ask us to appeal their case to a higher court.
But what about making a formal complaint about the conduct?
Anyone can make a complaint to the Judicial Commission of NSW if they believe that a NSW judicial officer has acted unfairly or improperly.
The Judicial Commission is an independent body which seeks to ensure the integrity and impartiality of magistrates and judges, and investigates complaints made against them.
To make a complaint, you will need to complete and submit the Judicial Commission complaint form. You must include the name of the magistrate or judge in question, as well as your own details and the nature of the complaint itself.
Before submitting the complaint, you are required to sign it in the presence of a Justice of the Peace or other authorised person.
The Commissioner will then investigate the complaint; a process which may include examining court transcripts, listening to sound recordings, reviewing statements, and so on.
As a part of the process, the Commissioner will notify the judicial officer of the complaint and may request his or her version of the events.
While the Commissioner cannot directly discipline judicial officers, it can refer any finding of misconduct to the head of jurisdiction or to the Conduct Division.
The Commissioner may also recommend action – which can range from counselling right up to a parliamentary recommendation for removal.
While the process for becoming a magistrate or judge is tough, removal is extremely difficult – unless some form of very serious misconduct can be proved.
In NSW, the removal of judicial officers requires a report from the Conduct Division of the Judicial Commission, as well as the approval of the Governor on address from both houses of the NSW Parliament.
Case study: NSW Judge Neilson
Judge Garry Neilson was recently subjected to a Judicial Commission investigation.
Earlier this year, Neilson provoked a public outcry by comparing community attitudes towards homosexuality to those in respect of incest. One of his statements was to the effect that a jury may no longer find incest repelling, just as homosexuality was once considered immoral but is now accepted.
It recommended to the Chief Justice of NSW that Nielson be prohibited from presiding over cases involving sex crimes.
Neilson has since been removed from all cases of a sexual nature, and he currently only presides over civil cases.
The complaints process has been criticised on the basis that, at the end of the day, it is normally another magistrate or judge that decides whether to take action – in other words, a case of judges deciding whether to discipline their own.
While the self-regulating nature of the judicial profession promotes independence – protecting against political and media pressures – the fact that removal from office is extremely rare and difficult is a cause for concern.