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4 November, 2004  
According to one ethicist, equality before the law does not apply to judges

Trouble for Justice Jeff Shaw, who is damned if he does and damned if he doesn’t. All sorts of challening ideas are coming out of the woodwork, including one that judges are less equal in the eyes of the law than the great unwashed.

imageEven people with a passing acquaintance of Justice Jeff Shaw know that he has a problem with the bottle. Friends and colleagues report they sometimes saw him around the city drinking alone and at functions he appeared frequently a little the worst for wear.

Doubtless this is behind Chief Justice Spigelman’s remark when announcing the judge was talking leave that Justice Shaw, “acknowledged that he had a medical problem and is undergoing treatment”.

As a Sydney taxi driver put it to a one of my field agent’s yesterday: “Louisa Road [Birchgrove] is a shocking place to drive if you’re pissed.”

It is narrow and treacherous street, and the judge’s touch-driving technique would be an important navigational aid if pills or alcohol had dulled his senses.

Now the disappearing vial of judicial blood from Royal Prince Alfred Hospital has given the story extra legs.

The judge was given a sample of his blood taken at the same time as the hospital extracted some for the police investigation into the car crash.

Yesterday (November 3), Mrs Shaw quite correctly sent packing detectives who bowled up to the front door to ask for her husband’s blood sample.

The matter is to be dealt with through Shaw’s lawyers, among whom is likely to be Adam Searle, who was his chief of staff as Attorney General of NSW and is now a Sydney barrister.

The Australian gives the distinct impression of lusting for a scalp and has pushed the story hard since day one. Yesterday it described the fiasco as a “stench in the halls of power and justice”. Today (Nov 4) it dug up the old Tory stickler and retired Queensland Appeal Court judge Jim Thomas who delivered an amusing sermon:

“If he really did drink-drive, the honourable thing to do would be to come clean It’s possible if this affair carries on a long time, all the judges in the system will be brought under a cloud, and public confidence gets shaken.”

Thomas was billed as the author of Judicial Ethics in Australia.

On the other hand, Simon Longstaff from the St James Ethics Centre told the ABC on Tuesday (Nov 2) that it would be an unfortunate precedent if Justice Shaw did surrender his sample.

“If Justice Shaw was to provide to the police the evidence which they appear to have lost, then in some sense I think it creates an exception to that requirement that the Crown do its work in order to mount any case which could lead to a conviction.”

Thomas is saying that, for the sake of the public’s confidence in the judiciary, judges caught in these sorts of predicaments cannot look to the protections of the criminal law that are afforded to everyone else.

If Jeff Shaw hands over his own sample and it is admissible and it does show his blood contains a level of alcohol over the prescribed limit, then the prospect is that he may plead guilty or otherwise be convicted of a drink driving offence. His licence will be suspended and he’ll be fined.

The way other judges have handled similar humiliations present conflicting precedents.

On June 3, 2002 Judge John Hanlon of the County Court of Victoria was convicted and fined $700 on a drink driving charge and had his licence confiscated for 18 months. He was more than three times over the limit when intercepted by police after driving erratically on the Monash Freeway.

Victorian Attorney General Rob (Fuckin’) Hulls let fly, saying the judge’s conduct was “deplorable”. He added:

“By his actions Judge Hanlon has brought shame on himself and also on the court.”

However, the Attorney General thought the judge’s removal from the court was not warranted. The “good behaviour” requirement for judicial officers was too ill-defined and would be unlikely to encompass Hanlon’s drink driving offence.

He was stood down from hearing criminal cases and to this day still only tries civil cases.

imageIn Canada, the Chief Justice of Quebec, Lyse Lemieux (pictured), stood down voluntarily last August over a drink driving incident.

She was driving home from a game of bridge at about 10pm on August 5 when her car struck a stationary vehicle on the side of the highway.

No one was injured, but she stayed at the scene until the coppers arrived. She was double the legal limit, registering blood alcohol levels of 0.17 and 0.15.

She is to appear in court next week on charges of driving while impaired and having a blood-alcohol level about the legal limit.

By all accounts, she was a well-regarded chief justice. One lawyer was quoted in the Globe & Mail as saying:

“This is tragic. The loss to the public far outweighs the appearance of propriety.”

Chief Justice Lemieux said:

“All citizens are equal before the law and I am taking my responsibilities seriously.”

Jeff Shaw is a sensitive and decent man. But unlike Hanlon in Victoria he may not have the stomach to stick it out if the dogs continue to howl.