Yesterday, the High Court quashed Di Fingleton's (former Queensland Chief Magistrate) conviction, which meant the court system finally discovered that she had legistlative immunity from prosecution.... after serving her sentence.
Her lawyers appear to have never realised this argument, as it was evidently not raised before the Queensland Court of Appeal, or (it would appear from the report) before the High Court. (It says the High Court raised the matter itself). In today's paper, the Chief Justice in Queensland admits he knew that this was a possible grounds of appeal, but it's not his (nor any judges') job to go suggesting to the lawyers before them what arguments to run.
I think this is technically correct, and is particularly true for trial judges. But doesn't it just confirm what I said in my earlier post that if you don't have an inquisitorial system, the courts are not philosophically inclined towards finding the truth, and justice becomes a bit of a game. In this case (as no doubt in countless others,) it results in people serving sentences before they are ultimately acquitted, and usually without compensation.
I don't think we have to uproot our system completely, but surely there ought to be scope for trial judges to take a more active role in seeing that justice is done. But like I said before, my feeling is that there is an institutional blindness to these sort of arguments in the Australian system in particular. (I am no expert, but in the last 30 years I think Britain has taken much bolder steps in having fundamental re-thinks about old rules of evidence, for example.)
And by the way, don't think I am really a personal supporter of Di Fingleton. The Queensland Labor Government went through a particularly bad period of appointing women to the courts deliberately to even up the gender balance. Having Labor connections has never hurt in seeking appointment to be a Magistrate either. She was obviously deeply unpopular with her fellow magistrates, and the fact that she would even think that she could "have her old job back" shows a lack of practical common sense, if you ask me. She will probably get some compensation, and I grudgingly think she probably deserves some. Not too much though - her own lawyers never raised the argument. I think they should use a "contributory negligence" principle and halve whatever compensation they would otherwise have given her. And don't go giving her another government job after compensation either.
I still don't feel all that sorry for her.
UPDATE:
I should have seen this coming, but the Chief Justice says he was misquoted by the Courier Mail in relation to his knowledge of the possible use of the legislative immunity section. However, his correction of the record hardly changes my basic argument. Here's the new quote:
In a related development, Queensland's Chief Justice, Paul de Jersey, was forced to deny that he had told The Courier-Mail he knew of Ms Fingleton's immunity from prosecution, but said nothing.
"I said no such thing," Justice de Jersey said.
"As the journalist acknowledged to me on Friday, 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." (Italics mine)
I have also now read the High Court case quickly, and it appears that there is an earlier High Court case suggesting that trial judges should bring possible defences up with the jury even if the defence counsel has not raised the argument. I haven't had time to check this out yet, but certainly Kirby's reasons for judgment still spends a lot of time on deciding whether a court of appeal really has the right to reinstate, as it were, a defence which the accused's Counsel has already ignored at the first appeal (at the State level.)
It is all very complex, and another retired judge from Queensland apparently thinks the High Court was way off the mark anyway in being so sure that the immunity provision did apply. (You do get the feeling that the High Court does just love to put the boot into Queensland court's decisions.)
Not having formed my own opinion about the merits of the High Court decision yet, it may turn out that no one raised it before then because no Queensland lawyer thought it was applicable, and I might agree it doesn't apply. But surely Fingleton's own lawyers should have at least tried the argument before the trial judge.
So maybe my concerns about the adversorial system being illustrated by this case are not so valid. But I would like to think that a Chief Justice, if he had the view that a possible immunity provision had been entirely overlooked, could have at least suggested informally to some of the other judges involved that they don't forget to look at that. (My basic point being that the issue of seeing justice done should not be overwhelmed by undue weight being put on a non-interventionist approach by the judiciary. )
And as for my view on compensation for Di Fingleton, I am not so sure she deserves any now. She is apparently still saying she should have her chief magistrates job back.
I don't think she should have any judicial position back at all, and she should have enough common sense to know that it is because the public could not have any trust that she could now have an objective view on sentencing. She has been to jail and has strong subjective views on the experience. (She was quoted in the weekend press talking about it, and is due to talk to Andrew Denton about it on TV tonight.) Some people might say this is a good thing, as it gives her a unique understanding of the consequences of her job. While this sounds plausible, it is not practical. It is the same reasoning I use to argue against people who suffered child abuse becoming social workers as adults. An over-heightened subjectivity of the experience is just what you don't need if you want objective and consistent outcomes in future.
Anyway, her case for compensation can really only be based on showing that Crown law made a bad error in continuing the case in that they did not consider the immunity provision. But if her own lawyers overlook the argument too (or look at it but decide tactically that it is not worth running), and if the accused herself is a lawyer, it is a little hard to point the finger of blame too much.
If they had raised the defence at trial and been acquitted on those grounds, and the trial judge agreed that it was an obvious oversight by the Crown in not considering that argument before prosecuting, then I suppose compensation would be on. But in this case, I think I was probably being overly generous when I first suggested she should probably get even half of what she otherwise would.
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