CONFLICT OF INTEREST
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CRIMINAL COURT JUDGES CANNOT BE UNBIASED
Imagine that you go to a boxing match and the boxers are introduced by the ring announcer:
- ANNOUNCER - In the blue corner is the challenger, Billy Bob Bruiser from Mount Druitt in Sydney. In the red corner is the champion, Sugar Steve Slugger from Sunshine in Melbourne. The referee is Fred Slugger from Sunshine, who also happens to be Steve Slugger's twin brother.
Imagine the howls of outrage and screams that would emanate from an enraged audience. Of course such a match would never proceed or even be arranged, because of the obvious conflict of interest of the referee. The same goes for any contest where total impartiality must be guaranteed. It would be inconceivable to have a football game refereed by an umpire who was an employee of one of the team sponsors. It would be outrageous if anybody who could influence the outcome of any activity had any relationship with a party who participated in that activity.
None of the above examples would ever be countenanced in a million years, however we, the people, are confronted with one of the most blatant conflicts of interest imaginable - magistrates and judges hearing criminal cases.
In the civil jurisdiction, judges that have a conflict of interest, or are even merely perceived to have a conflict of interest in the matter before them, are required to recuse themselves and not hear the matter. Here is a link to the Guide To Judicial Conduct from the Australasian Institute of Judicial Administration.
Chapter 3 clearly shows that judges are not permitted to have any perceivable conflict of interest. So why the hell is there a clear conflict of interest with magistrates and judges presiding over criminal cases? Think about it.
- QUESTION: Who employs a magistrate or judge and pays their salary?
- ANSWER: The state where they are appointed to the bench.
- QUESTION: And who prosecutes motorists for traffic offences?
- ANSWER: The state where those alleged offences took place.
HERE IS DEFINITE CONFLICT OF INTEREST
Magistrates and judges are employed by and paid by the very same state government that is prosecuting people for traffic offences that are in the criminal jurisdiction. Those magistrates and judges clearly have a conflict of interest and there is no denying it.
Those magistrates and judges may swear on a stack of bibles that they are completely impartial - and Fred Slugger the referee who is the twin brother of Steve Slugger, one of the boxers in the example above, can also swear on a stack of bibles that he is completely impartial. But there is a clear perception of a conflict of interest in both examples.
I have written to the NSW Attorney General and demanded some answers about this, but as expected, I received a load of disingenuous tripe and something about magistrates and judges being totally independent because they cannot be sacked, except for gross misconduct. Read the following and get a laugh out of it - but it really is a serious matter.
A CARR FAIRY TALE
Here is a mythical conversation between a mythical magistrate and a mythical chief magistrate. Make of it whatever you will.
- CHIEF MAGISTRATE - Bloggs, please come over to my place tonight for dinner and a chat.
- MAGISTRATE BLOGGS - Sure Chief Magistrate, I'll be there (thinking that this is about a promotion - how wrong he is).
- CHIEF MAGISTRATE - (over drinks after a nice meal) Bloggs, this conversation is strictly off the record, but I'm a little bit concerned about the number of traffic bookings you have dismissed. It seems rather extraordinary and of course the loss of revenue to the state isn't being received well by the government that pays our salaries.
- MAGISTRATE BLOGGS - Well I have an obligation to administer the law and every one of the dismissed matters violated the civil and legal rights of the defendants.
- CHIEF MAGISTRATE - Hmm, I suppose that this is fair enough and you must be seen to be fair and impartial. So you cannot see your way of assisting the state to increase road safety by penalising perpetrators of traffic offences?
- MAGISTRATE BLOGGS - Every defendant whose infringement I dismissed had valid grounds for such a dismissal, so I really had no choice.
Magistrate Bloggs is a highly principled guy who would NEVER be influenced to change his impartiality by his boss or anybody else - yeah right.
- CHIEF MAGISTRATE - OK, then onto another matter. A vacancy for a magistrate has arisen in Bumfuck NSW - you know Bumfuck; it's a little town halfway between Broken Hill and Bourke. There's not a lot there, just a few Aboriginal settlements and dirt roads, but the courthouse needs a new magistrate. Unfortunately the previous magistrate hung himself after only three weeks on the job and his predecessor shot himself after his wife and kids left him after a couple of months. However, I know that you are made of sterner stuff, so I have decided that you would be perfect for this permanent position. You are only 40 years old, so you could have it until you retire in 30 years.
Magistrate Bloggs cringes in horror and thinks - Shit, here I am, living in a palatial house in the affluent Eastern Suburbs of Sydney. My kids both go to private schools, my wife belongs to all sorts of society organisations and I belong to the swanky and exclusive Royal Sydney Golf Club and I dine out at fancy restaurants. If I get transferred to Bumfuck NSW, I'll be history. No fancy house, no golf club, no fine dining restaurants. I'll be living in some dump, practising golf in the desert dust and as for dining out in fancy restaurants? Hell, there's not even a McDonalds out there. My kids will be going to school in some Aboriginal settlement school where the educational standard is shit and all the kids lie around sniffing petrol. My wife will either leave me or commit suicide. No fucking way.
- MAGISTRATE BLOGGS - Um, Chief Magistrate, I have many personal commitments in Sydney and there is no way that I could consent to be transferred to Bumfuck NSW.
- CHIEF MAGISTRATE - Well Bloggs, it's not a matter of choice. Bumfuck needs a magistrate and you fit all the requirements. So if you have to relinquish life in the Eastern Suburbs, the golf club, the fancy restaurants and the private schools, then so be it. We all have to fulfil the duties assigned to us. Of course if this does not suit you, then you can always resign and go into private legal practice.
Bloggs thinks - Hell, if I resign the magistracy, bang go my chances of getting a gig in the District or Supreme Court and all that prestige and money. I'm not that good a lawyer and I can't really imagine that I'm going to enjoy sitting in a dusty office doing property conveyancing and drafting wills and earning sweet bugger-all. I better see if I can get the Chief Magistrate to stop this crap and send some other poor bastard to Bumfuck NSW instead. So what does the Chief Magistrate really want?
- MAGISTRATE BLOGGS - Listen here. Is there any way that I can avoid being sent to this remote piece of shit village in the middle of nowhere? What do I have to do to convince you not to assign me to Bumfuck NSW?
- CHIEF MAGISTRATE - Bloggs, have you considered your performance in regard to all those dismissed traffic infringement matters in your court?
- MAGISTRATE BLOGGS - (Finally the penny drops and a bright flash of light goes off in his brain) - Ah, yes Chief Magistrate, I see exactly what you mean. I will certainly review my performance and ensure that from now on, it meets your every expectation (nudge nudge, wink wink).
- CHIEF MAGISTRATE - Of course Bloggs, you have to continue to be fair and impartial (nudge nudge, wink wink in return), but I knew that you were a smart fellow. I'll reconsider the Bumfuck NSW posting for a while until I can re-assess your performance in the next few months. Thanks for coming to dinner and having this interesting chat.
Bloggs leaves and the next couple of months in court, virtually nobody can beat a traffic infringement in his court. Bloggs throws the book at them all, dismissing every defence, even valid arguments, hoping that the defendants cave in and don't take those matters to appeal, which most of them won't do. Bloggs keeps his position in Sydney, keeps living in that swanky house in the Eastern Suburbs, continues to play golf at Royal Sydney, his kids continue to go to private schools and the wife is happy attending all those snobby society bunfights and life is good.
CARR hopes that you enjoyed this little story. Do you think that things like that happen in the real world? Heaven forbid.
IT REALLY WORKS LIKE THIS
Actually, this is exactly what happens to public servants, including magistrates and judges who don't toe the line. They can't be fired, but they can be transferred to some shitty place where they will spend the rest of their miserable lives sharpening pencils, linking and unlinking paper clips, filling in forms in quadruplicate and staring out the window and watching goannas running around. Of course if they don't like it, they are free to resign, which will be exactly the outcome that is desired by their bosses - making a space for somebody who can be more easily manipulated by those bosses.
So what can we do about this very unfair situation in regard to the conflict of interest of magistrates and judges? Apart from bringing it to the attention of all politicians and media and screaming about it to everybody, we have to confront those magistrates in their own courts and embarrass them in the hope that they will turn tail and run. Here's a sample of some repartee between a defendant and a magistrate that might be useful.
- DEFENDANT - For the record, would you please confirm that this matter is being heard in the criminal jurisdiction?
- MAGISTRATE - That's right. All traffic matters are in the criminal jurisdiction.
- DEFENDANT - Would you please confirm that the Crown is the plaintiff and prosecutor in the matter before the court and is representing the State of NSW?
- MAGISTRATE - That is correct.
- DEFENDANT - Would you please tell the court who employs you and who pays your salary?
- MAGISTRATE - I am employed by the State of NSW and the State pays my salary.
- DEFENDANT - Sir, you have just stated on the record that you are an employee of the State of NSW, which is the same State of NSW that is prosecuting me on the matter before the court. Therefore you are clearly a party to the proceedings, which is also clearly a conflict of interest.
- MAGISTRATE - Although I am an employee of the State of NSW, I am completely impartial to these proceedings.
- DEFENDANT - That is not the point. Just as a boxing match or a football game would never be permitted to proceed if the referee was an employee of one of the contestants, you should not be in a position to judge a criminal matter that has been brought against me by the State of NSW that is also your employer. Whether you claim impartiality is immaterial. There is a clear perception of a conflict of interest and therefore I demand that you immediately recuse yourself from hearing this matter and that applies to any other magistrate who takes your place and is being paid by the State of NSW.
I cannot imagine that a magistrate would actually flee the court over something like conflict of interest, however it is a very valid issue. The point is that there really is a clear conflict of interest, when somebody who has the job of adjudicating a legal matter is an employee of one of the involved parties. So something needs to be done about it. Once people get the idea that their court appearances to fight traffic infringements are being judged by people who are employed by the same government that is trying to penalise them, I would hope that there would be a massive outpouring of anger and outrage.