By Kieran Adair and Ugur Nedim
People who are sent to court are supposed to be entitled to a fair hearing, regardless of the magistrate or judge’s mood, or their personal opinions or prejudices. But unfortunately, this isn’t always the case in our busy court system.
While it is often possible to appeal unfair rulings to a higher court, those who have experienced unfair treatment at the hands of a judicial officer are also able to lodge a complaint to the Judicial Commission.
The Commission plays an important role in ensuring magistrates and judges behave appropriately when they are presiding over court cases.
While the Commission does not have the authority to discipline judicial officers, or review their decisions, it can refer adverse findings to the Chief Magistrate or the Conduct Division.
The Commission can recommend formal counselling, or even that parliament consider removing the officer in serious cases.
Making a complaint
Those who are making a complaint are required to submit a form to the Commission which gives details of the judge or magistrate, the date and location of the court hearing and the unfair treatment they received.
The complaint must be signed in the presence of a Justice of the Peace, or other authorised person.
In carrying out its inquiry, the Commission can examine court transcripts, sound recordings, and any other relevant materials, before receiving the views of the magistrate or judge in question, and ultimately making and sending any recommendation to the Chief Magistrate or Conduct Division for further consideration.
The Commission can decide to dismiss the complaint without making a recommendation.
The Commission recently published a series of case studies of the most common complaints received, along with its actions following investigation.
Here are some of them:
No appeal power
Complaints are often received from those who believe a magistrate or judge made the wrong decision during their court case.
The Commission does not have the power to review those decisions – its focus is on whether the judicial officer behaved fairly and appropriately during the court process.
In one instance, a self-represented defendant in an apprehended violence order (AVO) case, complained that the magistrate had ignored her side of the story.
After reviewing sound recordings of the proceedings, the Commission dismissed the complaint on the basis that the magistrate had indeed allowed her to present evidence.
It informed the defendant of its inability to review the magistrate’s decision, as Judicial Officers Act 1986 requires the Commission to summarily dismiss complaints if an avenue of appeal or review is available.
The Commission advised the defendant that she could seek an appeal in the District Court if it were filed within the allowed time period – which is 28 days, or up to 3 months with ‘leave’ (permission from the District Court).
Another common complaint received is that the judicial officer acted inappropriately, either by ignoring court process or acting in a biased manner.
In one AVO case, a man complained to the Commission that the magistrate acted in biased manner by discounting his evidence. After reviewing sound recordings and exhibits, the Commission ruled there was no misconduct and dismissed the complaint.
This was due to the fact that magistrates are permitted to prefer the evidence of one party over another, which is what the Commission found had occurred in the man’s case.
In another complaint, a man alleged that a magistrate had made several inappropriate comments concerning his country of origin.
The Commission ruled that these comments were indeed inappropriate and referred the matter to the Chief Magistrate for further consideration.
Concerns about accountability
The right to a fair trial is a fundamental tenet of the criminal justice system, and judicial officers are expected to behave in an impartial and professional manner when dealing with court cases.
The Judicial Commission is meant to act as a safeguard against misconduct by judges and magistrates, and ensure they act in a manner appropriate to their powerful position.
However, the accountability mechanisms for judicial officers have been criticised for a number of reasons – including that the Commission is essentially policing its own members, that it has no power to directly discipline judicial officers, that those with the power to discipline (eg the Chief Magistrate or Justice) are policing their own, and that it is rare for magistrates or judges are actually disciplined, let alone dismissed