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Judges
31 December, 2004  
The Australian v Jeff Shaw

The Australian turned the Jeff Shaw story into a campaign. Unfortunately, as in the “pampered” judges beat-up, there were a few less than desirable journalistic moments.


imageJust when you thought it safe to step outside without being hit in the eye by a Jeff Shaw story along comes news that the former judge’s lawyers are proposing, once again, to challenge the jurisdiction of the Police Integrity Commission.

The PIC is in the final furlong of coming up with findings on how, where and why the ex-judge’s wine infused blood samples went astray.

The commission has assured Shaw’s lawyers that it would give them 21 days notice if it decided it had the wherewithal to make adverse findings against their client.

Arthur Moses of the Sydney Bar & Grill, for Shaw, told Justice Carolyn Simpson on December 30 that the matter was now in a “holding pattern” and that an earlier application should not proceed until the PIC shows its hand.

Maybe the Police Integrity Commission’s name is misleading but it does seem odd that this dinky little state bureau for show trials should try to make findings about judges, having already cleared the coppers who were close to the action.

There is, of course, another court appearance on the calendar January 21 when Jeff Shaw faces Downing Centre Local Court on charges of having a high range PCA and negligent driving.

Very soon the former Attorney General and judge will be back on the small screen and the front pages.

So before we get too distracted by the rush of affairs it might now be a good moment to reflect on elements of the Shaw saga, in particular the aggressive manner in which it was pursued by a couple of hacks on the Dirty Digger’s Australian newspaper.

The propositions advanced by The Oz were, variously: that Shaw resigned because he had taken both samples of blood from Royal Prince Alfred Hospital on the night of his car collision, October 13, including the missing police sample; his sudden resignation meant that five cases would have to be retried as he had left them incomplete and that this would cost the taxpayers millions of dollars; and that the government should have known he had a drinking problem when he was appointed to the court in February 2003.

The task here is to see if these propositions, asserted so assuredly in the paper, actually hold water.

Resignation

At the time Shaw took sick leave from the court and signed on at a Sydney alcohol clinic early in November he fully anticipated that he would be returning to work. So too did Chief Justice Jim Spigelman who issued a missive on November 2, saying:

“I look forward to his early return after successful treatment.”

Ten days later, on the evening of Friday, November 12, Shaw resigned as a judge of the Supreme Court. He had just learned his blood test, from the “missing” sample he provided to police, had showed an alcohol content of .225 more than four times over the limit.

As “drink-driving barrister” Adrian Gruzman explained at the time, assuming the judge was sober when he commenced drinking, he would have had to consumer 20 to 22 standard drinks over four hours to register a .225 blood-alcohol reading. “Quite a lot to hold down,” Gruzman added thoughtfully.

By now the relatively minor accident had been propelled into a political storm with accusations by Opposition characters that the missing blood sample was a “sinister” development. The implications were either that someone had covered up for a Labor mate or that Shaw had smuggled the sample out of the hospital.

Shaw’s resignation statement dictated from his bed at The Sydney Clinic said:

“The time which has passed since my car accident on October 13 2004 has been exceedingly difficult for both myself and my family

On Thursday, November 11, certain events occurred which led me to the decision that I should resign my appointment as a judge of the Supreme Court of NSW.”

That was a bit cryptic, as the only thing that became public on November 11 was that before his car accident Shaw had dinner with Donna McKenna of the Industrial Relations Commission.

Some reporters leapt on that as the key to understanding his resignation. There was an innuendo repeated several times about him trying to protect “the other woman”. Of itself that doesn’t appear to be much of a ground for resignation.

His statement went on:

“The events of the night of October 13, 2004, and the manner in which I have dealt with this matter since that time, have made me realise and appreciate that the state of my health is more serious than I had believed and that I am now not well enough to discharge the duties of my office.”

imageBut Ean Higgins and Brad Norington, the two fearless hacks covering the case for The Australian, came up with a certain identifiable explanation. On Monday November 15, on the eve of the Police Integrity Commission’s public hearings into the missing blood, all the newspapers were carrying the story that the “riddle of Jeff Shaw’s missing blood” had been solved. He had left hospital with both samples.

Higgins & Norington put it like this:

“The mystery of disgraced drink-drive judge Jeff Shaw’s missing blood sample will be solved by the judge himself today: he received both samples of the blood drawn from him on the night of his car accident on October 13, when one sample was supposed to have gone to the police.

It is now clear that, although the former judge’s blood alcohol reading of .225 may have been behind his resignation, the real reason he quit was linked to his having kept both vials for more than three weeks after the accident knowing that without them police could not conduct a blood alcohol test.”

They were at it again on December 6:

” another reason, possibly more important, for Mr Shaw’s resignation, is that he had late in the day revealed to his lawyers that he had two samples of his blood taken at Royal Prince Alfred Hospital

Mr Shaw did not give up both samples at once; he initially gave police one sample when the first went missing, but did not reveal his possession of the other sample until the Police Integrity Commission worked out he must have it”

The implication here was that Shaw knowingly concealed this evidence and that this duplicity had caught up with him and he had nowhere else to go but resign.

As Higgo & Nori gravely intoned on November 16:

“The nature of the questions [at the inquiry] reflect the seriousness of the allegations before the PIC. If proven, any attempt to withhold evidence could amount to perverting the course of justice, a crime carrying a maximum jail term of 14 years.”

But what was such a clear insight by Higgo & Nori never crystallised into solid evidence before the Police Integrity Commission. Stephen Rushton, counsel assisting, failed to explode Shaw’s innocent explanation for what happened:

“I had no way of knowing what was the police sample, what was my sample I gave everything up to the police.”

He said that the hospital gave him a plastic bag containing the blood samples. He did not look at the bag closely until just before he went on a trip to China on October 16. Only then did he see that it contained two vials wrapped in foil.

“I did not regard this to be of any significance as I was not aware of the procedure concerning the extraction and testing of blood I assumed that there was in existence other blood vials than the two provided to me.”

He was asked about the police paperwork that accompanied the vial his wife handed over to police on November 5, and he replied:

“I frankly didn’t care one way or the other if more was handed over than was actually specified by me, well so be it.”

He denied taking the police sample from a trolley at the hospital.

“I did not handle the police sample at any time while I was in the hospital. The only recollection I have is the handing over of a plastic bag.”

Dr Malcolm Hill who took the blood from Shaw said he was uncertain what he did with the sample intended for the police. As he said:

“I don’t recall what happened to the police sample.”

imageEven though Shaw had both samples of blood in his possession, and the first sample was not handed over until three weeks after the Balmain bingle, it is a large and awkward leap to suggest he knowingly concealed evidence.

He said in his testimony that he did not realise one of the samples was the missing one until Thursday, November 11. The following day he resigned.

Instead of the sinister characterisation placed on the missing sample by The Australian, the judge’s resignation was more likely to have been brought on by a concatenation of circumstances. The very high blood alcohol reading and the prospect of being charged with a drink driving offence; the constant media circus outside his home and the impact this was having on his family; a realisation that his drinking was in need of attention; that Donna McKenna was now being dragged into the mess; and that he had precipitated a political crisis by unwittingly being in possession of both the blood samples taken an hour or so after the accident.

Moreover, the further suggestion that the judge was sneaking back to his chambers in the dead of night to hide the samples also had no legs.

First of all, Shaw didn’t hide the samples but save them to Adam Searle, a barrister friend, for safekeeping before he went on the trip to China. Secondly, if he was desperate to do away with the evidence, he had plenty of opportunity to flush the samples down the dunny.

Over the limit

Being over the limit of itself does not make a judicial officer unfit for office. Suitability for the job depends on how far over the limit, yet there is no clear understanding where lies the cut off point.

For instance, Lyse Lemieux, 68, the Chief Justice of the Superior Court of Quebec recently resigned because she was two times over the legal limit at .08. She had been on the bench 26 years and on the way home from a bridge game one night struck a road works barrier. No one was hurt but she stopped the car and waited until the highway patrol arrived.

On November 2 she pleaded guilty to a charge of driving with a blood alcohol level above the legal limit and lost her licence for a year and was fined $600.

So maybe the unofficial drink driving benchmark for judicial officers is something under twice the legal limit.

At more than four times over Jeff Shaw had no wriggle room.

Uncompleted judgments

Another of the themes harped upon by the wizards of The Oz was that Shaw quit the bench leaving five “unfinished cases” which will have to be “reheard at a cost of millions of the dollars” to NSW taxpayers.

First law officer B. Debus announced on November 16 that the government had accepted the recommendation of James Wood CJ at CL that the state foot the bill for any of Shaw’s cases that will have to be reheard.

The Australian reported this development with characteristic campaigning relish:

“The Carr government yesterday buckled to pressure from the NSW Supreme to pay potentially millions of dollars in legal costs to have unfinished cases of drink-drive judge Jeff Shaw reheard.

The move came as the scandal over the drunken car crash and subsequent resignation of Mr Shaw threatened to engulf the government in a broader political crisis.

In response to questions from the Opposition, Attorney General Bob Debus agreed taxpayers’ money would have to be spent to compensate parties to Mr Shaw’s five outstanding court cases and issued a public apology.”

As recently as December 11 in The Weekend Australian, the indefatigable Higgo was declaring:

” five of Mr Shaw’s unfinished cases in the Supreme Court will be reheard at a cost of millions of dollars to NSW taxpayers.”

If we put the overexcitement to one side for a moment, just what has to be reheard and will Shaw’s legacy cost taxpayers anywhere near “millions of dollars”?

The most serious case in Shaw’s in tray was Rhiannon Richards v Dr Patrick Rahilly, a medical negligence matter which had been tried, but the judgment reserved at the time of the unfortunate mishap with the Alfa Romeo. On November 15, Ean Higgins announced that this case would have to be restarted “from scratch”.

The case, according to Higgo, “has cost an estimated $700,000 to $800,000 in legal fees for both sides so far”.

The latest information from the court is that even if there is a rehearing of bits of the evidence, this will not mean the case has to be restarted from “scratch”. Both parties have agreed that a new judge can work from the transcripts in preparing reasons.

By far and a way the most depressing feature for the parties will be delay in getting a judgment.

Another case put into the “particularly tragic” basket by Higgo was Philipha McLean v Darlington Point Sawmills, in which the plaintiff lost an arm in an accident at work.

She had a nervous breakdown when she gave evidence before Shaw J and the part-heard case did not proceed. Justice Hislop has been allocated the remainder of the trial for an expeditious hearing but it is understood that lawyers for the plaintiff have had difficulties getting instructions.

The primary cause of delay in the McLean case has little to do with Shaw’s untimely resignation from the bench.

There is the Constantine Georgiou matter in the Court of Criminal Appeal on which Shaw sat with two others. This is an appeal by a convicted murderer and it is unlikely to require a rehearing in relation to his conviction and sentencing on drug and weapons offences.

The fourth “unfinished” case is an action by Randwick Council to recover an alleged debt from a gym operator. The case has been around since 1997 and it had not had a trial at the time of the judge’s car crash and resignation. It has been set down for a hearing next year. Again, no rehearing is required.

Finally, there was a request by Lester Bernard Mills for an inquiry under s.474D of the Crimes Act, NSW, into his conviction for indecent assault and sexual intercourse with persons under 10 years of age. Justice Shaw had only received a letter about this inquiry just prior to his resignation. No inquiry had actually taken place, no costs had been incurred and the matter is now before Wood CJ at CL.

So much for the bold claim about Shaw’s “five unfinished cases” which will have to be reheard from “scratch” at a “cost of millions of dollars to NSW taxpayers”.

The Supreme Court’s information officer spent quite a length of time explaining to reporter Higgins the details of the cases, but the full picture failed to emerge in his stories.

Even in one case, where Shaw delivered judgment in April, the newspaper dug-up the unhappy plaintiff in a family contract dispute. Wendy Murray is now demanding the state pay for a retrial, even though her appeal has yet to be heard. The paper said:

“She yesterday told The Weekend Australian she decided to act after recent publicity about Mr Shaw’s drinking problems, which he last month attempted to address by enrolling in a program at The Sydney Clinic.”

Ms Murray thought Shaw was not paying adequate attention during the trial in November a year ago. Helpfully she told Higgins:

“Some days the judge seemed OK, but other days he just watched the clock. He just looked very vacant.”

imageGiven the dedication of the Digger’s hacks on The Australian in sniffing out every morsel of Shaw’s shortcomings it is weird they missed the NSW Court of Appeal’s decision on November 15 in Australian Broadcasting Corporation v Reading.

There, Justices Santow, Ipp and McColl all decided that Shaw erred in his decision to discharge a section 7A jury in a defamation case and order a new trial. The judge found the jury was confused, but the Court of Appeal judgment indicates that the only person confused was Jeff Shaw. The jury had, after all, answered all relevant questions in favour of the ABC.

That could have been beaten-up into a nice bit of froth for the front page.

Grub Street

The newspaper made up for that oversight with other flourishes of rougher than usual reporting, the most shocking instance of which was Ean Higgins’ entry into Shaw’s room at The Sydney Clinic three days after he resigned from the Supreme Court.

It was foot in the door journalism at its most unattractive. For those who missed it in The Australian of November 15, here’s Higgins slimy effort, under the headline “Opening the door on Shaw’s world”:

“Jeff Shaw is used to a big world of excellent food and wines, sports cars, a stately house with expansive views, and a politico-judicial circle of friends including ministers, silks, and fellow judges.

Yesterday his universe was a small, rather depressing room in The Sydney Clinic, from which he took a break to eat his lunch with a dozen or so other patients in a spartan dining hall with plastic table tops.

The Australian caught up with him yesterday at the psychiatric clinic in Sydney’s eastern suburbs, where he is being treated for alcoholism and related health problems.

Unchallenged by nurses, this reporter knocked on the door of his room, was invited to come in, and found Mr Shaw sitting on his bed, wearing a grey narrow-check jacket.

He had a briefcase on the desk, various bits of paper with longhand writing lying around, a few books, and a blue blazer hung over a chair.

Mr Shaw looked gaunt, pale-faced and physically drawn. But he seemed calm and fully in control, after some initial surprise at seeing a reporter he had known more than a decade ago.

‘How did you get in here?’ he asked, with what developed rapidly from a look of astonishment into amusement.

Mr Shaw said politely, ‘I don’t want to comment at the moment,’ when The Australian put questions to him including whether he would attend the Police Integrity Commission today as the first witness.

The Sydney Clinic, near the beach in Bronte, is generally viewed as the elite spot for well-heeled psychiatric patients to recuperate, costing about $500 a day.

The clinic says of its in-patient arrangements: ‘Programs are carefully tailored to suit individual needs. Specialised programs provide cognitive/behavioural techniques in managing symptoms. Group programs are well-structured and, where necessary, referral to the day program after discharge is also available.’

Unlike the sojourn at the clinic several months ago of former stockbroker Rene Rivkin, Mr Shaw does not even have the chance to stroll around the garden – it is closed for construction works.

Mr Shaw must be missing the spacious environment of his house in Louisa Road, Birchgrove, where he has a private office and views over a park and the harbour.

It was on that same road, however, that his actions led to his undoing late on the night of October 13 when, in what he has told police was a drive of a few hundred metres, he crashed his Alpha Romeo while heavily drunk.”

What can one say about such penmanship? Heavy handed, crass, intrusive, slippery are some of the things that jump to mind.

three weeks later the terrier team of Higgo & Nori wrote a story about Shaw drinking alone at a pub in Sydney, “Accused drink-drive judge finds room at the inn”. Again, Shaw’s vulnerability seemed only to inflame the reptiles to sink the boot in more gleefully:

“Alleged drink-driver, former judge Jeff Shaw’s efforts to dry out and possibly return to the legal profession appear to have come to nought.

The Australian found Mr Shaw sitting alone yesterday afternoon in a dark corner of the Ship Inn at Sydney’s Circular Quay, drinking glasses of the house white, a Tyrrells chardonnay. He was listening to the radio through earphones, and reading a book.

Mr Shaw had an extended stay last month at the Sydney Clinic, where he was treated for alcoholism and other problems.

Yesterday he looked haggard, pale-faced and had about a three day growth of beard. He was wearing a pair of loafers coming apart at the seams, and holding a large bag.

Normally Mr Shaw’s traditional drinking circuit is around Balmain, near his house in Birchgrove”

Even The Daily Smellegraph was more decorous with its report of the same day:

“The strain of the past four weeks appears to be taking its toll on disgraced former Supreme Court judge Jeff Shaw.

Yesterday, in one of his first public appearances since seeking treatment for an alcohol-related illness, Mr Shaw looked pale and thin.

Arriving at his Birchgrove home after spending a day in the city and at Circular Quay, the former justice declined to answer questions about his health.

He emerged from a taxi shortly after 7pm clutching a black sports bag and looking unwell”

The Member for Higgins

imageHiggins has also been frustrated by an inability to make headway on just how much the government and the Chief Justice knew about Shaw’s form as a drinker.

As he wrote in The Weekend Australian of December 11-12:

“NSW Attorney General Bob Debus and Supreme Court Chief Justice Jim Spigelman have been under pressure over whether they acted quickly enough to deal with Mr Shaw’s drinking problems.

It is believed Justice Spigelman counselled Mr Shaw on the topic months before he crashed his Alfa Romeo into a parked car late at night on October 13 when his blood alcohol level was allegedly four and a half times the legal limit.

But Mr Debus, who says he found out about Mr Shaw’s alcohol problem only after the accident, and Justice Spigelman, have repeatedly refused to answer questions from the Opposition and The Weekend Australian about whether an agreement had been reached before the crash that Mr Shaw would go on sick leave to deal with his drinking problem.”

The Shadow Attorney General, Andrew Tink, has been regarded as the hack’s running dog on this issue. So much so that Debus refers to him as “the Member for Higgins”.

Yet this may be one reasonable element in The Oz’s campaign against Shaw. Ideally government’s should not be elevating onto the bench people with alcohol addiction. There are enough disturbing personal blemishes to be found among judicial officers without inflicting drunks on litigants and their lawyers.

Premier Carr said he didn’t know Shaw was a drinker at the time he was appointed. All we can say is that plenty of others did.

Importantly, the whole unhappy saga emphasises that a decent mechanism for judicial appointments is well overdue. Even the English are grappling with an independent Judicial Appointments Commission to provide the due diligence and filtering for the government.

Police Integrity Commission

As befits a state instrumentality inflated with its own importance and secrecy, the Police Integrity Commission tends to jump at its own shadow.

During the public hearings into the missing blood samples some journalists insist that the media spokesman for the commission was busily pushing an anti-Shaw line to the reptiles.

Now everything is coyness and obfuscation. Just before Christmas, a PIC mouthpiece would not say when commissioner Terry Griffin’s report would be completed and released.

“The investigation is still on going.” Written submissions are being assessed. January cannot be confirmed as the month the findings of “Operation Banff” are to be unveiled, the Supreme Court permitting.

The terms of reference are:

“To investigate the conduct of NSW Police officers and others involved in events arising from a motor vehicle accident at Louisa Road, Birchgrove, on 13 October 2004 at approximately 2330 hours.”

And why Operation Banff? All we know is that Banff is a town in the Alberta Rocky Mountains of Canada. It is full of thundering waterfalls and misty canyons. It is freezing cold and people drink a lot to keep warm. Snow is its principal asset.