Complaint case studies

Information gathered from these documented complaints benefit the development of future education programs. Some common complaints examined by the Commission include:

Failure to give a fair hearing

Allegations of failure to give a fair hearing is one of the most common grounds of complaint (see also Apprehension of bias). An unsuccessful party to legal proceedings or a person who represented him or herself in court often make this type of complaint.

Complaint 2013–14

  • The complainant, who represented himself, complained that the Supreme Court judge hearing his case had denied him procedural fairness and made a wrong decision.
  • The Judicial Commission’s examination: The Commission reviewed the transcript of the hearing and the judgment. The examination revealed that the judge had dealt with the proceedings fairly and objectively and there was no evidence to support the allegation of misconduct. The Commission found that the decision made regarding the application before the court was within the discretion of a judicial officer and did not raise questions of misconduct under the Judicial Officers Act 1986. The Commission also noted there was an adequate right of appeal available to the complainant and in those circumstances the Commission was required to dismiss the complaint. The complainant and the judicial officer were advised of the Commission’s decision and the reasons for it.

Complaint 2012–13

  • The complainant was represented by a solicitor. He appeared before a magistrate in the Local Court to answer criminal charges that the police had laid. He complained to the Commission that he had not received a fair hearing. This was because the magistrate had allegedly discriminated against him and had not allowed him to raise questions that he wanted the police to answer which he had previously sent to the court for the magistrate to ask.
  • The Judicial Commission’s examination: The Commission reviewed the transcript of the proceedings and the documentary material that the complainant provided. The examination revealed that the magistrate had been fair and objective throughout the proceedings and there was no evidence to support the allegation of discrimination. In its advice to the complainant that the complaint had been dismissed, the Commission particularly noted that if there were questions that the complainant had wished to be asked of the police, he should have instructed his solicitor to ask those questions in cross examination of the police witness, as it is not the role of a judicial officer to cross-examine a witness.

Apprehension of bias

Allegations of an apprehension of bias is one of the most common ground of complaint (see also Failure to give a fair hearing). An unsuccessful party to legal proceedings or a person who represented him or herself in court often makes this type of complaint.

 Complaint 2013–14

  • The complainant represented himself in apprehended violence order (AVO) proceedings. He alleged that the magistrate was biased, did not listen to his side of the story, and made an order not based on the evidence before the court.
  • The Judicial Commission’s examination: To examine the complaint, the Commission reviewed the sound recording of the proceedings and the court file. As with a number of complaints that come before the Commission, in this matter, the complainant misunderstood the way in which judicial officers are obliged or entitled to perform their duties. Court cases commonly, and typically, involve a judicial officer preferring the evidence of one party or witness to the evidence of another. The losing side can misconstrue that process as bias or prejudice. In this complaint, the judicial officer had carefully considered the evidence before the court, and preferred the evidence that the applicant for the AVO had presented. As part of the examination, the Commission also noted that it does not have authority to review judicial decisions, including findings of fact and law. That is a matter for courts of appeal and is recognised in the provisions of section 20 of the Judicial Officers Act 1986. This requires the Commission to dismiss complaints summarily where there is an avenue of appeal or review available. The Commission dismissed the complaint because there was no misconduct and an adequate appeal right existed to the District Court.

Substitution for appeals

A complaint is often made that a judicial officer made a wrong decision. This type of complaint is usually made when a party to litigation is aggrieved by an unfavourable decision but, for one reason or another, does not wish to appeal to a higher court. Such a complaint is dealt with on its merits, but the Commission cannot correct an allegedly wrong decision. A court of appeal is the appropriate avenue for determining whether the judicial officer made an error in law or fact or if there was a miscarriage of justice.

Complaint 2012–13

  • The complainant represented herself in AVO proceedings. She alleged that a magistrate did not listen to her side of the story and made an order not based on the evidence before the court.
  • The Judicial Commission’s examination: The Commission dismissed the complaint after reviewing the sound recording of the proceedings. The Commission noted that the complainant had a right of appeal to the District Court against the magistrate’s decision. People who are not satisfied with the outcome of a case often make a complaint to the Commission instead of lodging an appeal. The Commission’s role is to examine complaints about ability or behaviour. It does not have authority to review judicial decisions, including findings of fact and law. That is a matter for courts of appeal and is recognised in the provisions of section 20 of the Judicial Officers Act 1986, which requires the Commission to dismiss complaints summarily where there is an avenue of appeal or review available.

 Complaint 2011–12

  • The complainant, a solicitor representing a client in criminal proceedings, alleged that the magistrate had made a series of errors concerning evidence given during the hearing.
  • The Judicial Commission’s examination: The Commission dismissed the complaint after reviewing the sound recording of the proceedings. The Commission was of the view that the complainant had an adequate right of appeal to the District Court against the magistrate’s decision. People who are not satisfied with the outcome of a case often make a complaint to the Commission instead of lodging an appeal. The Commission’s role is to examine complaints about ability or behaviour. It does not have authority to review judicial decisions, including findings of fact and law. That is a matter for courts of appeal and is recognised in the provisions of section 20 of the Judicial Officers Act 1986, which requires the Commission to dismiss complaints summarily where there is an avenue of appeal or review available.

Failure to act in a judicial manner

Complaint 2012–13

  • The complainant appeared before a magistrate charged with a number of offences. He complained to the Commission that because he had refused to enter a plea he had been taken into custody at the magistrate’s direction.
  • The Judicial Commission’s examination: The Commission reviewed the transcript of the proceedings and the judicial officer’s response to the complaint. The investigation confirmed that the complainant had declined to enter a plea to the charges. Following an exchange between the magistrate and the complainant about the plea, the magistrate had him arrested and placed in custody, although later directed that he be released without charge. The Commission was of the view that the judicial officer did not handle the situation in an appropriate judicial manner and his action was an error of judgment. The Commission determined that it should not dismiss the complaint and referred the matter to the Chief Magistrate.

Rudeness during a sentencing hearing

Complaint 2012–13

  • The complainant alleged that in a District Court sentencing hearing, the judge had been rude, arrogant and disrespectful to the solicitor representing his daughter and that the sentence imposed was excessive.
  • The Judicial Commission’s examination: The Commission reviewed the transcript of the hearing. The examination revealed that the judge had been courteous, professional and judicial in dealing with both the hearing and the solicitor. There was no evidence to support the allegations. The Commission found no wrong conduct and also noted that there had been an appeal against the sentence to the Court of Criminal Appeal. The Commission was of the view that, as there was no wrong conduct and an adequate right of appeal existed, the Judicial Officers Act 1986 required it to dismiss the complaint.

Making inappropriate comments

Complaint 2013–14

  • The complainant, a solicitor representing a client in Children’s Court proceedings, alleged that the magistrate criticised her professional conduct in her absence in a matter where an appeal court may read the comments.
  • The Judicial Commission’s examination: The Commission reviewed the transcript of the proceedings and the complainant’s submissions. The Commission was of the view that it would have been better had the comments not been made, but they did not constitute judicial misconduct under the Judicial Officers Act 1986. In those circumstances, the Commission dismissed the complaint on the basis that further consideration was unnecessary.

Complaint 2011–12

  • The complainant appeared before a magistrate charged with the offences of failing to leave a licensed premises and behaving in an offensive manner. He complained that the magistrate during the proceedings made offensive comments about his nationality and was biased and prejudiced.
  • The Judicial Commission’s examination: The Commission reviewed the sound recording of the hearing and the judicial officer’s response to the complaint. The investigation confirmed that the judicial officer had made a number of inappropriate comments concerning the complainant’s country of origin. The Commission determined that it should not dismiss the complaint and referred the matter to the Chief Magistrate to deal with.

Complaint 2011–12

  • The complainant appeared before a magistrate charged with knowingly taking part in cultivating a prohibited plant. At the end of the evidence, his legal representative made a submission that there was no case to answer on the evidence. The magistrate subsequently dismissed the charge on the basis that it could not be proved beyond reasonable doubt. The legal representative requested a certificate under the Costs in Criminal Cases Act 1967. In declining to grant a certificate the magistrate commented that “on balance I think your client’s guilty”. The magistrate’s comment was raised as the complaint.
  • The Judicial Commission’s examination: The Commission reviewed the sound recording of the hearing and confirmed that the comment had been made. In his response to the Commission, the magistrate acknowledged that his remark was inappropriate for a judicial officer, and acknowledged that he was aware at the time he had upset the complainant. He said he didn’t mean to do that and apologised. The Commission determined that the complaint should not be dismissed and referred it to the Chief Magistrate to deal with. The Commission also conveyed the magistrate’s apology to the complainant.

Asking inappropriate questions

Complaint 2012–13

  • The complainant, who was represented by counsel, alleged that a District Court judge, when dealing with an application for variation of bail, asked inappropriate questions.
  • The Commission’s examination: The Commission reviewed the transcript of the short hearing and his Honour’s judgment. The examination revealed that the judge dealt with the application and refused the variation that the complainant sought. The Commission, in dismissing the complaint, noted that the judge was entitled to ask the questions and his decision to refuse the application was made in the exercise of his judicial discretion. Accordingly, his conduct during the proceedings did not raise questions of wrong conduct under the Judicial Officers Act 1986 and it was determined that further consideration of the complaint was unnecessary

Complaint about a retired judicial officer

Complaint 2011–12

  • The complainant alleged that a Supreme Court judge had “systematically and wilfully contrived findings” in a matter which had been before the court several years ago.
  • The Commission’s examination: The Commission made inquiries of the court and was advised that the judge had retired and had not been appointed an acting judge. The Commission has no jurisdiction over retired judicial officers and was required by the Judicial Officers Act 1986 to dismiss the complaint as the person complained about was no longer a judicial officer. While this outcome may be disappointing for the complainant, the Commission has no power to do more about allegations made against a retired judicial officer.