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17 July, 2007  
Pat O'Shane raked over the coals - again

Fresh flaws discovered in Pat O’Shane’s understanding of the law. Ignorance, coupled with incomprehension, unreasonableness and irrelevance, makes for a heady, if regrettable, cocktail. Justice Rod Howie stirs and shakes

imageNSW magistrate Pat O’Shane (pic) has been bounced around the ring by a NSW Supreme Court judge for her misunderstanding of basic legal principles, being unreasonable, and making findings that were “incomprehensible”.

O’Shane had earlier dismissed six charges under the Commonwealth Criminal Code brought against Parham Neamati for understating his income to obtain youth allowance payments. O’Shane also ordered the prosecution pay all the costs of the case.

The Commonwealth Director of Public Prosecutions appealed.

In a sharply worded judgment in favour of the DPP, Justice Rod Howie found that O’Shane erroneously thought it was essential for the prosecution to prove Neamati knew he was committing a crime.

The judge appeared to be exasperated by the feisty magistrate’s lengthy pontification about the High Court authority He Kaw Teh, which, he said, with “the greatest respect to the magistrate”, was beside the point.

Howie inquired rhetorically as to “why she thought it necessary in this particular case and in light of the simple issue before her, to consider a general statement of criminal responsibility at common law and seek to apply it to the facts of this case”.

The judge concluded:

“The comments were irrelevant to any issue before the magistrate. It should be obvious that the prosecution never has to prove that a person knew his or her acts were criminal because generally speaking a defendant’s knowledge about the criminal law is irrelevant.”

Howie castigated O’Shane for another basic mistake, requiring the prosecution prove its case beyond reasonable doubt at the prima facie stage.

“Nothing has to be proved beyond reasonable doubt at the prima facie stage. It is enough that the evidence in the prosecution case taken at its highest is capable of proving the elements of the offence beyond reasonable doubt.”

The judge also found that O’Shane’s costs order against the DPP “now becomes unreasonable” and in any event consisted mostly of “irrelevant musings”.

Such a costs order is permitted only where the prosecution failed to investigate a matter that suggests the accused might not be guilty and about which it ought reasonably to have been aware.

After more exasperation, Howie complained that the magistrate “fails to disclose how the prosecutor unreasonably failed to investigate any matter, whatever it might be …”

O’Shane’s decisions were “regrettable” because Neamati would now have to pay the additional costs of the appeal. “Hot Rod” Howie sent the matter back to be reheard before a different magistrate.

In 2005, O’Shane was reprimanded by Justice David Hunt for behaving “in an inappropriately adversarial way” towards businessman litigant Paul Makucha. In that case the matter was also sent back to a different magistrate on grounds of denial of procedural fairness.

O’Shane was awarded damages of $175,000 in defamation over a 1999 Sydney Morning Herald article scribbled by Janet Albrechtsen which claimed, among other things, that magistrate O’Shane was biased against the coppers.

Here’s Howie’s judgment in full.


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