Following the recent controversial decision by Pat O’Shane to dismiss charges against a man accused of assaulting a paramedic, and critical comments about her performance from His Honour Justice Garling of the Supreme Court of New South Wales, my colleague and former NSW Paramedic, Ruth Townsend and I did a search on the fate of Ms O’Shane’s judgements in the Supreme Court.  The results were interesting in that we found there had been 56 appeals from her judgements between 1999 and 2012.  We found two other magistrates where we could find appeals over the same time period and they had 8 and 9 appeals respectively.    The results of our research have been reported in the Sydney Morning Herald:

Majority of O’Shane decisions overturned in Supreme Court appeals

and in an opinion piece in the same paper:

Resignation now could help O’Shane preserve a proud legacy.

The comparison data between the three magistrates did not end up in the paper, so I’ll put it here:

Magistrate O’Shane

Comparison Magistrate 1

Comparison Magistrate 2

Criminal

Civil

Criminal

Civil

Criminal

Civil

Appeal upheld, magistrate’s decision overturned

14 (87.5%)

21 (52.5%)

3 (60%)

4 (100%)

4 (100%)

2 (50%)

Appeal dismissed, magistrate’s decision confirmed.

2 (12.5%)

19 (47.5%)

2 (40%)

0 (0%)

0 (0%)

2 (50%)

Total

16

40

5

4

4

4

56

9

8

We can observe that Magistrate 2 was overturned in 100% of civil appeals, and Magistrate 3 in 100% of criminal appeals, but in each case there were only 4 compared to the 16 criminal appeals, and 40 civil appeals against Magistrate O’Shane’s decisions.  It is of course the grounds or reasons for upholding the appeals that is the real concern.  A magistrate may have a case that involves a complex question of law and he or she has to decide the matter quickly and perhaps with limited assistance.  By the time the matter gets to the Supreme Court the Judge will have more time and will be assisted by leading Senior Counsel who have had time to consider and draft legal submissions.  For a judge to rule that, after due consideration, on a tricky point, the Magistrate made an error is simply to acknowledge that Magistrates are human or that the law was unclear and the Magistracy will be assisted by more thought out direction.  Being overturned in situations like that is hardly a reflection on a Magistrate’s performance.

In the case of Magistrate O’Shane, however,  Justice Garling, in Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 (3 February 2012)  said:

69. “… it is difficult to understand how the Magistrate has fallen into errors of the kind which I have found, since this judgment is not the first occasion upon which the proper procedure has been described, and the correct procedure pointed out to the Magistrate by this Court.

70. Her Honour has had the correct process drawn to her attention in a number of decisions of this Court, on appeal from her determinations in summary proceedings. These include:

(a) DPP v Wunderwald [2004] NSWSC 182 (Sully J);

(b) DPP v Lee [2006] NSWSC 270 (Howie J);

(c) DPP (Cth) v Neamati [2007] NSWSC 746 (Howie J);

(d) Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653 (Davies J).

71. If I may say, with respect, the judgment of Sully J in Wunderwald sets out in a model of clarity, the Magistrate’s obligations when considering whether a prima facie case had been established. His Honour’s judgment was not followed in this case, but rather seems to have been entirely ignored.”

Our paper has included other quotes indicating the sort of errors, not on tricky points of law but on fundamental points of procedure, that have been made by Magistrate O’Shane.

Michael Eburn

8 February 2012.