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
Australian Emergency Law 
Michael,
Is Magistrate O’Shane indiginious and so was the offender?
This magistrate allegedly has a “history” of weighted desisions of a “discriminitory” nature.
Magistrate O’Shane is identified as aboriginal, I have no idea about the background of the accused in this case though Magistrate O’Shane did ask Mr Martin “Would the Court be correct in inferring, Mr Martin, that you don’t like blacks?” Now whether ‘blacks’ refers to persons of Aboriginal or Torres Strait descent or perhaps Africans or others is unknown.
My caution is that although we should see racism where it exists, we should also not see it where it does not. Magistrate O’Shane failed to apply the law. She has a history of doing that, and that history is traced in the judgement, but whether each case relates to an aboriginal defendant is neither known, nor relevant. We should not rush to see racism every time a non-indigenous magistrate accepts the evidence of a non-indigenous police officer in preference to an indigenous defendant, although studies will show that indigenous defendants have been, if not are, subject to such racism; nor should we jump to the conclusion that it is race that is the deciding factor where the magistrate finds in favour of a defendant where both are indigenous or both are members of some other common cultural group. The truth of the matter is that indigenous persons are over represented in the criminal justice system for many reasons so many cases of controversy will involve indigenous defendants.
In the study that I did with a colleague, Ruth Townsend and published in the Sydney Morning Herald, and commented on earlier in this blog (Commentary on Magistrate O’Shane), the inference we drew was that Magistrate O’Shane had a history of making controversial decisions against the police and against police witnesses, rather than on a racial basis.
To give Magistrate O’Shane the benefit of the doubt, she may well have acted as she sees justice and her oath to do right to all manner of people without ‘fear or favour’ required her to do. The problem is that we expect her to act according to law and the Supreme Court has found that she has not done that on this and on other occasions. The race of the accused was not considered relevant in this or any of the other judgements and we should be slow to assume it is.
Equally, we should not judge the defendant on his race. At this stage he remains ‘not guilty’ of the offence; the mere fact that he is or may be indigenous, as the Magistrate was, does not detract from his current standing as person ‘presumed innocent’ of the offence nor should it suggest, in any way, that he wont again be acquitted when the matter is heard according to law. That will be a matter for the next Magistrate to determine on the evidence admitted before the Court.
So in answer to the question, I understand that Magistrate O’Shane identifies herself, and is identified, as an indigenous person; I have no idea about the accused. I have not mentioned race in my commentary as I don’t believe it was relevant to the discussion.
Michael Eburn