The conversation usually goes something like this:
Junior: “So, I’ve got this contested hearing tomorrow.”
Barrister (with whom Junior is sharing chambers): “Do you know who you’ve got?”
Junior: “Magistrate (insert name here).”
Barrister: (Uncomfortable silence.) “Ouch, bad draw.”
Whatever happened to justice being blind?
Anyone at the bar will tell you that the eventual outcome of a matter will depend as much, if not solely, on who hears it. Not necessarily the quality or otherwise of the advocate, not the facts, not even necessarily the evidence, but the person in the big chair.
Try explaining that to someone you’re acting for.
Try telling them that if they walk through the doors and see the smiling face of Her Honour Magistrate X, there’s every chance that they’re not walking back out the same door.
However, if it’s His Honour Magistrate Y who greets them in the morning, the likelihood is that a community based order and a stern lecture is on the way.
I realise this is why the good Lord invented de novo appeals from the magistrate’s court – but that’s hardly the point.
If it was me, I’d like to think that my matter would be judged on its merits alone, not the peculiar whims or fancy or prejudice or predilection of the randomly allocated person hearing it.
Perhaps I’m showing my naïveté.
Sometimes as I sit in the back of the court waiting to be called watching person after person, with charges and backgrounds and excuses similar to those I’m about to articulate on my client’s behalf, receiving sentences usually reserved for underworld figures or terrorist sympathisers, I shudder and wonder how much better things would be if I could select my own beak.
Everyone has a favourite magistrate, even they are never perfect.
Just contemplate how life would be improved if you could build-a-better-bench.
Take a little bit from here, a little bit from there and create your own ideal magistrate.
Such a creature can be constructed. We have the technology.
Obviously this would be different for everyone. Those who lean towards the persecution side of things might like to use for their skeleton His Honour deputy sergeant (name removed for obvious reasons) from Geelong.
Add a sprinkling of “drug addiction is a lifestyle choice” and “punishment is the key focus of sentencing” and you should have your perfect prosecutor’s bench.
Likewise, your defence counsel types might like to start with some lefty who buys into that whole ethos of addressing the cause of the offending, rather than punishing the offence itself.
Take a large dose of faith in the redeemable nature of those who frequent the magistrate’s courts and a willingness to find “exceptional circumstances” in the most curious of places and you should be off and running.
You might add an infrared enabled bionic eye and the ability to run at speeds up to, and including, 60 mph – but personally I’d settle for a sunny demeanour and a bit of consistency.