A week after Premier Peter Bjelke-Beattie opened his capacious trap to declare Di Fingleton’s term as chief magistrate had not been very “illustrious”, he’s decided to offer her the equivalent of two years’ pay, an apology for her conviction and a position on the Queensland magistrates’ bench.
Compensation for future lost salary is open to discussion, according to the Bowen Hills Bugle.
Initially, Bjelke-Beattie ruled out compensation, saying to do so would “open the floodgates” to claims by anyone who had their convictions quashed. He believed an apology was inappropriate because the government had no involvement in the Fingleton case. On Monday (July 4) he said: “In the end I’ve changed my position on this.”
Now everyone’s hanging on to see if Lady Di accepts the offer.
There is plenty of debate whether the $440,000 is back-pay or compensation. Because he’s still hung-up about compensation Bjelke-Beattie is characterising it as back-pay, but the tax implications of that are considerable.
Just after the High Court’s decision to quash her conviction Bjelke-Beattie was said there had been “enough instability in the past” and bringing Fingleton back as chief magistrate would be divisive. Anyway Marshall Irwin fills the job. Bjelke added:
“I’m trying not to hurt anyone’s feelings, but I don’t think that period was a very illustrious one in the history of the Queensland magistracy. That is behind us. We want to see it stay behind us.”
The Premier stepped into the equation after negotiations between Lady Di’s people and Attorney General “Rocket” Rod Welford were going nowhere. The former Attorney General who appointed her, Fat Matt Foley, also was on the sidelines insisting that she get her old job back plus plenty of compo.
Fingleton’s solicitor, Matt Woods, flagged that his client may also take legal action against her former lawyers for what could be a significant foul-up.
Fingleton’s appointment as Chief Magistrate in 1999 was a politicised affair. She had long been a devoted Labor hackette having worked as a “steno” in Bill Hayden’s office in the days of the Whitlam government and for “Space Cadet” Dean Wells as Queensland Attorney General. In 1995 incoming MP Anna Bligh, thanked Lady Di for helping her win her seat.
The Fingleton case has been utterly fractious, not only for the government, but the magistracy and judiciary as well.
You’d think that the first thing on the mind of judicial officers caught in the middle of strife and turmoil is, “where are my immunities when I need them”.
They’ve got privileges coming out of their ears and for many judicial officers they constitute their main waking preoccupation.
So what went wrong in the Lady Di Fingleton case? Forgetfulness, ignorance, distraction. All are possible.
The immunity point was raised by the High Court itself in a letter to the parties before the special leave application was heard on October 8, 2004. Until that time it had not been put forward at Lady Di’s trial or on her trip to the Queensland Court of Appeal.
At the special leave application the transcript reads:
McHugh J: Mrs Clare (Qld DPP) why should there not be a grant of special leave in this case? You may succeed after a full argument of the case, but it certainly does seem to raise some important questions, particularly since this point [immunity] has not been run at any stage below…
Mrs Clare: Yes, it is unfortunate that it was never raised earlier. We concede that if it is made out, then it would be a complete answer, notwithstanding the fact that it has been raised for the first time in this court…
McHugh J: Yes. It is amazing that this point was not recognised in Queensland. I would have thought that practitioners would have sections like section 30 [Qld Criminal Code] in their head.
Mrs Clare: Well, your Honour, perhaps it was considered and dismissed because it is such an extreme consequence. Consequences would flow from this if, in fact, Parliament had intended that the administrative functions of magistrates would have complete protection.”
So it could have been considered, but dismissed because of “consequences” beyond the contemplation of Parliament.
It is puzzling that not even Lady Di herself twigged of the immunity point. You’d think that as Chief Magistrate she would have had a passing acquaintance with the Magistrates Act s.21.A:
“A magistrate has, in the performance or exercise of an administrative function or power conferred on the magistrate under an Act, the same protection and immunity as a magistrate has in a judicial proceeding in a Magistrates Court.”
Or a grasp of the Queensland Criminal Code, s.30:
“Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by the judicial officer in the exercise of the officer’s judicial functions, although the act done is in excess of the officer’s judicial authority, or although the officer is bound to do the act omitted to be done.”
The facts of the drama have been stated in various ways. At their heart lies resentment by some magistrates who didn’t like Di or her style. She was insensitive, even imperious, when it came to the administration of the working arrangements of her colleagues.
It came to a head when as Chief Magistrate Lady Di sought to transfer from Brisbane to Townsville magistrate Anne Thacker. Thacker didn’t want her life turned upside down and she appealed the decision to the Queensland Judicial Committee and called upon the Magistrates Association to help her.
Basil Gribbin, the coordinating magistrate for Beenleigh, provided an affidavit to Thacker’s solicitors for use in the review and a copy was given to Lady Di’s solicitors. Basil was critical of the “forced” moves and said that magistrates felt “susceptible to arbitrary, unadvertised, involuntary transfers”.
In September 2002, just as Basil was settling in as the freshly installed vice president of the Magistrates Association, Lady Di blew her stack and sent her fateful, career imploding, email – telling him to show cause in seven days why he should remain as coordinating magistrate for Beenleigh.
“Could you explain to me why you sought [sic] fit to supply an affidavit in the matter of Ms Thacker’s review of my decision to transfer her to Townsville…”
Lady Di went on and on about Basil being disloyal, why wasn’t his affidavit discussed with her first, how privileged he is to be a coordinating magistrate (a position which involves an allowance of $2,000 a year) and that it was “manifest” he had a “clear lack of confidence” in her as Chief Magistrate.
The following month, October 2002, the Judicial Committee (Geoff Davies, Margaret White and Patsy Wolfe) found that Lady Di had acted unfairly in making the decision to transfer Thacker.
Further, they admonished her for creating an atmosphere of suspicion and mistrust among fellow magistrates.
Through gritted teeth Lady Di thanked them for their “guidance”.
The Thacker case was the fifth time a magistrate had taken action against the head of the court for acting illegally, unreasonably and for bullying.
The Queensland Crime and Misconduct Commission swung into action and found there was sufficient evidence in relation to the show cause letter to Gribbin to support charges of perverting the course of justice and interfering with a witness. Section 119B of the Criminal Code came into play:
“A person who, without reasonable cause, causes, or threatens to cause, any injury or detriment to a judicial officer, juror, witness or a member of the family of a judicial officer, juror or witness in retaliation because of
(a) anything lawfully done by the judicial officer as a judicial officer; or
(b) anything lawfully done by the juror or witness in any judicial proceeding;
is guilty of a crime. Maximum penalty seven years.”
After her retrial, which immediately followed the first trial (where the jury could not reach a verdict), Lady Di got 12 months. The Court of Appeal did not uphold the “reasonable cause” argument on the conviction but suspended her sentence for two years after she’d served six months.
There were intimations of lurking enmities and turf wars back in May this year when Queensland Chief Justice Daphnis de Jersey (seen here) gave a tortured little spiel on “Judicial professionalism” to the Magistrates’ conference at Brisbane’s Novotel:
”... we must be conscious that what we do and say may influence public respect or lack or it, not only in respect of what we as individual judicial officers do, but for the work of our courts generally.
There is a recent high-level example of this. I was disappointed earlier in the year when Justice McHugh, during an argument in the High Court in the Fingleton case, made broadly derogatory references to the way judges sum up to juries in criminal cases in Queensland. His remarks, or insinuations, were inaccurate and unjustified. Offhand innuendo like that by judges at high judicial level can do great harm.
... appeal judges should be careful to avoid unnecessary thorough going criticism of the work of a primary judge or magistrate who has simply done his or her best and Justice McHugh’s litany fell into that category.”
The bit from McHuge (pictured) that got up Daphnis’ nostril went like this:
McHugh J: ”... I find this summing up remarkable. I do not know whether it is a standard summing up in Queensland, but nowhere in the summing up is there any summary by the judge of the evidence for the prosecution of the witnesses. There is not any summary of the accused’s evidence. In a major criminal trial, I have never seen a summing up like this before, and in all its you get a statement of what the law is, a list of the names of witnesses, what the prosecutor says, what the defence counsel says. I mean, the jury have no assistance. Is this a standard model of summing up in Queensland?
Mr Jackson: Well, your Honour …
McHugh J: I doubt if it would pass muster in some other States in the Courts of Criminal Appeal.”
Imagine Daphnis’ disappointment and the harm to the public respect of the courts when in his Fingleton judgment McHuge devoted over 12 pages to the requirements of a proper summing up and the shortcomings in the summing up in the case before him.
The finding by the High Court on Thursday, June 23, that the conduct leading to the charge for unlawful retaliation against a witness was protected by the immunity against prosecution conferred by the Magistrates Act set off further reverberations for Daphnis.
The Bowen Hills Bugle reported the Queensland CJ as saying that he knew that Lady Di could be immune from prosecution but judges were not obliged to prompt lawyers on what arguments should be advanced.
Three days later Daphnis said he was misunderstood. He denied that he knew of the immunity but had kept schtumm.
“I said no such thing. As the journalist acknowledged to me on Friday (June 24), I said only in response to his question that I had been aware of section 21(A) of the Magistrates Act, the provision which exonerated Ms Fingleton.
I had never conceived that provision could apply to her case.
I was neither the trial judge nor a member of the Court of Appeal which heard the appeal. Even if I considered the provision arguably applicable, it would have been improper for me to intervene.”
So now it was not so much that the knowledgeable Chief Justice had failed to tip off the relevant appeal judges about the legislation. It was more a case that while knowing about s.21A he thought it wasn’t relevant to Di’s case.
The very day that Daphnis was clarifying his position, the retired appeal court judge and author of Judicial Ethics in Australia, Jim Thomas, leapt into the fray with a tantalising article.
He wrote in The Bugle that the High Court’s interpretation of s.21A of the Magistrates Act took it in a direction that had not been intended by the legislature. In doing so the High Court “has completely moved the goalposts”.
Of course, this was the point raised by David Jackson for the Crown in the High Court appeal. Thomas went on:
“No one thought that the section was meant to apply to ordinary housekeeping duties such as listing cases and assigning duties to other magistrates. Neither did Parliament or those who drafted the section.
The explanatory notes for legislation which grants the same protection for District Court judges show that it was passed to allay concerns about personal liability of judges authorising surveillance and listening devises
The High Court … has deliberately cut off the possibility of embarrassing trials of any judicial officer for anything done in court administration…
We don’t want nosy journalists and lawyers interfering in this area! Bravo. I can live with that. But we should recognise the decision for what it is, an extension of judicial turf.”
Further, said Tommo, by “overstating” their case some High Court judges (unspecified) had belittled Lady Di’s defence counsel, the trial judge and the Queensland Court of Appeal, which upheld her conviction. All of which bore the distinct overtones of Daphnis’ sermon to the magistrates at their Brisbane knees-up in May.
And, like Daphnis, he was unhappy with the attack on the trial judge’s summing up. Finally:
“It is obviously unfair to conclude that those formally involved in the Fingleton case who thought differently from what the High Court now says must have been fools. It is no disgrace to have a goal scored against you when someone has moved the goalposts.
The Queensland judiciary is just as good and as bad as any other arm of the judiciary in Australia, including the High Court.
The only difference is that the High Court has the last say.”
Actually, the most recent say went to the Court of Appeal’s Justice John Jerrard, who in the following day’s Courier-Mail came out with a counter-punch against the Chief Justice.
Jerrard has much greater faith in the High Court’s finding than Tommo or Daphnis. He pretty much skewered Daphnis and by implication Thomas:
“The Chief Justice has publicly stated that he was aware of the terms of section 21A of the Magistrates Act 1991, the section the High Court relied on to say that Di Fingleton should never have been prosecuted. The Chief Justice has explained that he construed that section differently and we now know, wrongly.
He has suggested that there is, or was, a consensus of opinion supporting his wrong interpretation. I do now know of any such consensus.
The comments by the Chief Justice imply that other judges (perhaps the trial judge and the judges who heard Fingleton’s appeal) also had considered the terms of the section, but had interpreted them differently from the six High Court judges.
The Chief Justice has offered an explanation for why none of the Queensland judges who heard the trial or appeal mentioned section 21A; this was to the effect that judges stay out of the arena and leave it to the parties to conduct their cases as they want to.
That explanation is inaccurate about a judge’s role in criminal proceedings. Neither on a trial nor appeal does a judge stay aloof and independent from the justice of the case.”
Jim Thomas pointed out in his article the previous day that other interpretations of s.21A were open and, according to Jerrard, that made it “just as important that the section was brought to the attention of the parties in the criminal proceedings by any judge who sat on the case and who knew of the section”.
In response to Thomas’ argument that s21A of the Magistrates Act was given a meaning not imagined by the legislature, it could be said that so too was s.119B of the Criminal Code, the section that hung the Chief Magistrate.
The legislative intention in that instance was not to criminalise the conduct of a Chief Magistrate in administering her charges, even if she was overbearing.
The provision was designed to stop thugs, hoons and stand-over operators from intimidating jurors, witnesses and judicial officers in going about their duties in the justice system.
In fact Lady Di signed off on the new section on the basis that it was an important ingredient in protecting the integrity of the trial system from outside intimidation.
The last word in all of this malarky should be left to Lady Di herself. She gave The Australian’s Tony Koch her interpretation on how she, a Catholic woman from a humble background, landed in this terrible trouble:
“A male officer came up to me in prison. He said I should imagine a scenario: a female chief magistrate is appointed first to deputy and then chief magistrate; a woman. Not through the ranks and a magistrate for only five years and she is suspected of being close to the government; a Labor government appointment.
He said imagine some magistrates are Masons. They go to their lodge and complain about this person who has jumped over a few people. He said Masons are bound when asked for something by another Mason to give it. He told me I would never get justice. I asked him to give me names and he said ‘no’.”