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Court in the Act
15 April, 2004  
Judges On The Rack

Judges on the Rack: John Dowd smacked for being slow and wrong … Daphnis de Jersey CJ mucks-up murder trials … Pat O’Shane’s defamation evidence not correct

Dowd spanked for late homework

imageJustice John Dowd (right) has received another birching from the NSW Court of Appeal for being slow and wrong.

In Miller v DPP (April 1) Sheller JA was unmerciful in his application of the cane to poor Dowd’s already well-whacked derrire.

Painful yelps from Vince Bruce, the most famous serial slowcoach, also echoed around the walls of the appeal court.

The appeal was by Damon Charles Miller who was convicted in the Local Court on charges of “making a false instrument”. Miller had failed to appear due to illness and was convicted in his absence. He applied under the Justices Act for an annulment of the conviction on the grounds that he: ” was otherwise hindered by illness or other cause from taking action in relation to the relevant proceedings.”

Deputy Chief Magistrate Helen Syme dismissed the application, saying that the medical evidence was not sufficient to satisfy the requirements of the Justices Act.

The appeal was heard by Dowd on April 22 and 23, 2002. On February 20, 2003 he gave judgment dismissing the appeal.

Actually, it was a mite unfair for the appeal judges to say there was a 10-month “delay” in Dowd’s judgment. A lot of judgments are still taking six months or more to produce and no one seems to get into strife for that. It would have been more accurate to say there was a “delay” of around four or five months.

In fact, illness dogged much of this case, one way and another. Clive Evatt was to appear for Miller at his trial but couldn’t turn up because he needed an urgent hip replacement. That, however, was found by the Court of Appeal to be an irrelevancy as far as the considerations required by the Justices Act were concerned.

Sheller said that Syme DCM ignored the uncontroverted evidence of Dr Bartipan, who attended the appellant on the day of his trial, conducted a physical examination and formed the view that he was unfit to attend a court appearance that day.

Syme thought that the requirements of the Justices Act were not met because Miller was well enough to contact his solicitor and ask him to arrange an adjournment.

Syme said: “He simply chose not to attend court that day”. That was not a suggestion ever put to the appellant in cross-examination and not open to the beak on the evidence.

Sheller, along with Beazley and Young (CJ in Eq), thought that if an accused was prevented from coming to court because of illness then that falls within the expression in the Justices Act of “hindered by illness from taking action in relation to the proceedings”.

Sheller added:

“It is not to my mind, significant or any answer to such a claim that the appellant was well enough to telephone his solicitor or to write a letter. To conclude otherwise, defeats the intention of the legislation.”

Dowd in rejecting the appeal said the magistrate made a finding of fact on the evidence that she was not satisfied that Miller was hindered from attending court. He thought Miller’s credit was central to a consideration of the provisions in the Justices Act.

Dowd got a shellacking from Sheller:

” it is not correct to say that the question of the plaintiff’s credit was central to a consideration of [the provisions of the Justices Act]. Next, his Honour failed to deal with the submission he recorded, that the medical evidence as to the unfitness of the appellant on that day was not challenged or contradicted Further, it was no sufficient statement of reasons, particularly bearing in mind the ten-month delay in delivering judgment, that the magistrate carefully considered the evidence. Even less was it appropriate to say that the plaintiff’s evidence had been rejected, and that being so, that the magistrate simply made a decision that she had not been satisfied by the plaintiff as the section required her to do.”

In fact, all seven grounds of appeal were made good.

Sheller referred to Moylan v The Nutrasweet Company and R v Maxwell, cases which were fouled by the tardy paw of Vince Bruce J. He stressed that: ” delay in delivery of judgment makes it even more necessary than usual for the judge to err on the side of thoroughness in the exposition of his reasoning process.”

Daphnis mishandled evidence in Brizzie “bondage” case

If Dowd’s botty was red and bruised by this rougher than usual handling over his ten months’ cogitation, just think how wretched Daphnis (“Two Wigs”) de Jersey, Chief Justice of Queensland, must have felt when the Court of Appeal comprehensively turned him upside down in a murder appeal.

imageDaphnis (right) had sat as the “learned trial judge” in a murder case, involving a “bizarre bondage episode”. Sven Huebner and Amy Maher, two university students, were found guilty of murdering in August 2001 a fellow student, Linda Roberts.

She died sometime after arriving at the home of the accused for a prearranged bondage session. Initially Huebner and Maher tried to cover up the death, disposing of the body in bushland and denying knowledge of the crime to the police.

However, part of the way through the trial their story changed and they said that Roberts had indeed died accidentally during a demonstration of bondage techniques with a rope around her neck. She fell forward and strangled herself while Huebner was briefly out of the room. Attempts by the accused to revive her failed.

The jury found them both guilty of murder.

What the appeal court, Glen Williams in particular, found objectionable (April 6) was the use of evidence from a witness, Melissa Gazsik, who told of another bondage session with the two accused 18 months before Roberts’ death. The Court of Appeal was highly critical that the use of this evidence was not contained by the “learned trial judge”.

President Margaret McMurdo found that it should only have been admitted on a very limited basis, namely: “Huebner’s disposition on another occasion to forcefully place a female student and close friend in a life threatening situation, involving rope and plastic.”

There had been an earlier application to the court by the Crown and Justice Anthe Philippides ruled that the Gazsik evidence could be led on grounds that it could be probative on the issues of motive, identification and the relationship between the accused.

However, at the trial counsel for the accused asked the “learned trial judge” to reopen the application on the leading of Gazsik’s evidence. Daphnis declined to vary the earlier ruling saying the evidence was “probative of the requisite intent”. The jury was also invited to infer from the Gazsik evidence an intent to kill Roberts.

The Court of Appeal was livid. Williams said:

“At the very least the learned trial judge had to disabuse the jury as to that

“It is of critical importance when similar fact evidence is before the jury for the summing up to contain a clear, precise and strong warning as to the limited use which may be made of it. An inadequate warning was given here. In this case not only was there an insufficient warning given as to the relevance of the Gazsik evidence (it being capable of being regarded by the jury as propensity evidence) but the learned trial judge also erred in his summing up by indicating it could be used for inferring intent to kill Roberts when that was not an inference reasonably open on the evidence. Those considerations lead to the conclusion that the convictions for murder cannot stand.”

There were other issues that were dealt with rather shakily by the “learned trial judge”. For instance, there was a “passionate kiss” between Huebner and the deceased, which the prosecution insisted, resulted in a “jealous response” from Maher. In his summing up Daphnis told the jury:

“You will recall Ms Maher’s reference during the police interview to the passionate kissing of Ms Roberts at Murton Avenue. The Crown asks you to infer that just as the accused worked together in relation to Ms Gazsic, so they did in relation to Ms Roberts.”

As Glen Williams JA dryly observed:

“Again, I have difficulty in appreciating the reasoning.”

Other aspects of the summing-up were “extremely vague (and) highly speculative”.

The appeal court quashed the murder convictions. Huebner had already pleaded guilty to manslaughter so he is to be re-sentenced for that offence. Maher is to be retried for manslaughter.

And who was it that saved young Amy Maher from life imprisonment? It was none other than Bret Walker, who zipped up to Brisbane and in a dazzling display annihilated the way Two Wigs conducted the trial and saved the poor damsel from extenuated incarceration.

Pat’s wobbly evidence in defamation case

imageControversial left-wing NSW magistrate Pat O’Shane (right) was successful in her defamation action against The Sydney Morning Herald. She sued over an item in the paper’s comment pages by right-wing columnist Janet Albrechtsen. Acting Justice Rex Smart rejected the defences of comment and qualified privilege and awarded the aggrieved plaintiff $220,000 in damages.

It was an odd case in many respects, not least because Rex didn’t accept aspects of Pat the Rat’s evidence.

Much of the difficulty arose because Albrechtsen regurgitated a claim from an earlier Sydney Morning Herald interview with O’Shane conducted by journalist Adrian McGregor. He reported that O’Shane in one day dismissed 116 charges against Aboriginal defendants at Brewarrina Local Court. “Almost without exception” the charges were for offensive language which, he said, O’Shane believed were a form of “habitual police harassment of Aborigines”.

The claim was wrong, but O’Shane didn’t correct McGregor. However, when Albrechtsen repeated it, the paper was sued and it was translated into one of the defamatory imputations that arose from the article.

The plaintiff accepted the figure of 116 charges being dismissed when answering interrogatories.

However, in evidence at the trial she denied she had dismissed 116 charges against Aboriginal defendants in a single day in 1989. She also denied that she had told McGregor that these charges were a form of habitual police harassment.

Smart said the answer from the plaintiff was incorrect, whereas McGregor’s evidence “impressed me as being correct”. It’s not often that a judge will accept the word of a reptile over that of a judicial officer. Something’s amiss.

The judge went on to criticise O’Shane evidence in relation to the resolution of complaints about her conduct as a magistrate lodged with the Judicial Commission.

“She could not remember whether there were any such complaints outstanding as at December 16, 1989. I thought that evidence was incorrect.”

Nor could the plaintiff recall prior to December 16, 1999 whether her decisions in the Kanaan police shooting case had attracted considerable criticism. Again, that evidence was not considered to be correct.

On the other hand Albrechtsen, the author of this beastly attack, was found to be a truthful witness, honestly believed in the truthfulness of the imputations and was not motivated by malice.

No matter, Pat won the round. Fairfax is to appeal.

From Miss Ginger Snatch
Judges’ Associate