Readers of this blog, in particular paramedics, will be familiar with the case of Police v v Wililo.  Mr Wililo was charged with assaulting a paramedic near Kings Cross, Sydney, in 2011.  The prosecution was dismissed in controversial circumstances by Magistrate O’Shane.  The Director of Public Prosecutions lodged an appeal to the Supreme Court and on Friday 29 June, His Honour Johnson J upheld the appeal and ordered that the matter be returned to the Local Court to be heard by a different magistrate (see Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713; see also my blog posts: Magistrate O’Shane dismisses case against a man accused of assaulting a NSW Paramedic  and Commentary on Magistrate O’Shane).

In upholding the appeal Johnson J found that O’Shane LCM made numerous errors of law; in particular she:

  • Denied the prosecutor procedural fairness by refusing to let him call the other paramedic and another senior police officer and refused to let the prosecutor tender a photograph;
  • She dismissed the case before the prosecutor formally closed the prosecution case and in circumstances where she failed to consider whether or not a prima facie case had been established; and
  • She failed to give adequate reasons for her decision.

In the course of his judgement Johnson J was highly critical of the Magistrate’s performance.  He discussed the role of a judge in adversarial proceedings and that is the judicial officers job to see that the trial is fair to all sides, including the prosecution.  Further a judge or magistrate

  • is required to follow the prior decisions of higher courts when they give directions on law and practice; and
  • is required to spell out the reasons for their decision both to inform the litigants and the broader community but also to restrain themselves, by setting out their reasons and their thinking “unconsidered or impulsive decision” making is avoided.

Johnson J noted that this did not happen in this case or in other cases decided by O’Shane LCM.  As a result Johnson J ordered that the matter go back to the local court to be heard by another magistrate.  Counsel for Mr Wililo argued that the matter should not be sent for retrial as the Magistrate had heard the evidence of the victim/paramedic and formed a poor view of him and the evidence not called, even if it had been called, would not advance the case with the implication that it would again be dismissed.  On that submission Johnson J said the views of the Magistrate were irrelevant: ‘In my view, the process demonstrated at this criminal trial is so tainted by denial of procedural fairness and error of law that whatever view was formed by the Magistrate should be placed entirely to one side.’

Further the alleged assault was serious:

To the extent that it may be relevant, I observe that the assault charged in this case, if proved, is not a minor one. If the offence is found proved, an available aggravating factor on sentence would be that the victim, as a paramedic engaged in duties as an ambulance officer, was a health worker or other public official exercising public or community functions, and the offence arose because of the victim’s occupation: s.21A(2)(a) Crimes (Sentencing Procedure) Act 1999.

He ordered that the matter be heard by a different Magistrate, adding: ‘In light of what has happened in this case, I regret to say that there could be no confidence that a hearing on the merits, conducted according to law, would occur if the matter was remitted to Magistrate O’Shane.’

His Honour then made the unusual step of making particular mention of Magistrate O’Shane’s conduct.  The judge reminded himself that this was unusual and warranted careful consideration but in the circumstances it was warranted.  He said:

The fact that there have been a significant number of successful appeals from decisions of the Magistrate presiding in this case is not, of itself, such as to warrant specific comment. Where, however, the errors found in cases are repeated over and over again, it is appropriate to note the pattern…

The recurring errors into which the Magistrate has fallen demonstrate repeated breaches of the requirement of a judicial officer to preside at a criminal trial conducted according to law, with a fair opportunity to the parties to present their cases.

Although the errors of the Magistrate identified in the various decisions to which I have referred have arisen in different factual contexts, there is a pattern of fundamental error in the discharge of judicial duties.

The doctrine of precedent operates to remind judicial officers of the legally correct processes to be followed, with an expectation that a judicial officer whose decision has been overturned, will not repeat the error which has given rise to appellate intervention. Regrettably, that doctrine does not appear to have achieved its purpose in the case of decisions of the Magistrate to which reference has been made.

The tragedy here is that Mr Wililo may or may not have done the wrong thing. Having had the benefit of an aquittal he must now go back before court where his liberty is again at risk.  Both he and Mr Martin (the paramedic) along with other paramedics and police, and the lawyers, attended the local court and were entitled to have the matter resolved according to law.  Often cases go on appeal because there are genuine points of law to be resolved or because Magistrates, as humans, can make mistakes.  But in this case the matter has now dragged on for over a year and is no closer to resolution than it was when the parties first attended court and this through no fault of the parties or their lawyers but because of the presiding Magistrate’s conduct and her apparent refusal to follow pointed directions as to her conduct on the bench.  The cost to the individuals, and the community, is extraordinary.

Michael Eburn.

2 July 2012