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Eye-openers from the court that's least fallible

There are two important, complex and, as Norman Gunston would say, ''controversial'' decisions this month from the Court of Appeal - the home of the state's brightest, most learned and least fallible judges.

One case deals with remarks at a social occasion by Judge Michael Finnane, in which he is said to have expressed forceful views about paedophiles and how they should be punished.

The other is a decision about the liability of a local council for the actions of hunting dogs that attacked and killed a four-year-old girl, Tyra Kuehne, in the country town of Warren.

Both decisions and the reasons behind them have their peculiar elements.

The Finnane case is called CUR24 v the Director of Public Prosecutions and the District Court of NSW. CUR24 can now be revealed as a former priest, Brian Spillane, who was sentenced yesterday by Finnane to nine years' jail for sex assaults on young girls.

There are a number of other trials in the pipeline in which Spillane is the accused.


Because Finnane is known to be tough on sex crimes, CUR24's defence team was anxious to get the judge removed from the case, or at least the sentencing.

To some extent they have succeeded because the judge is shifting to the Dust Diseases Tribunal and the remaining Spillane cases will be tried by someone else.

Before he could sentence Spillane yesterday, Finnane had to wait for the Court of Appeal decision, handed down two weeks ago.

Greg Walsh is Spillane's lawyer and in March last year he had a conversation with Finnane at a tea party following the swearing-in of another judge at the District Court.

Walsh swore that as he walked into the reception area he was approached by Judge Finnane, who had a cup of tea in his hand, and said words to the effect: ''G'day Greg, representing another paedophile are you?''

Walsh said he was representing a former teacher at Knox Grammar School, whereupon Finnane is alleged to have said:

Later he allegedly said, after another judge interjected in the conversation, ''they're all guilty … they're all guilty''.

''Well, you know what should be done with these paedophiles? They should be put on an island and starved to death … that's the best thing for them.''

Later he allegedly said, after another judge interjected in the conversation, ''they're all guilty … they're all guilty''.

At that time Spillane was awaiting sentence after being convicted of the assaults on the young girls.

The defence lawyers sought to remove Finnane from sentencing the former priest, while the judge insisted that the conversation did not take place in those terms.

The Court of Appeal dismissed the summons to remove Finnane, finding that his statements did not give rise to a reasonable apprehension of bias.

In arriving at that point there was an impressive effort put into reasoning why Walsh should not give evidence or be cross-examined.

In other words, the appeal decision was not based on testing witnesses as to which version of events was more likely to be correct.

To do so would endanger the dignity and public confidence in the legal profession and the judiciary. The appeal judges all agreed that it was unnecessary in making a determination about the apprehended bias of a judge to make a finding of fact about the the disputed words. The relevant principle was concerned with appearance, rather than reality.

The test of judicial bias is what a fair-minded bystander might think. In an impressive leap of faith, appeal judge Tony Meagher said bystanders in this situation would simply put aside Finnane's comments about paedophiles, because they would know that a judge would rise to the occasion and ''consistent with his training and function'', do the right thing. No one would consider it likely that the judge would be governed by anything other than the evidence.

I hope that makes everyone feel better.

In the Kuehne case a largely different set of appeal judges decided that the Warren Shire Council was not liable in damages arising from the death of young Tyra, even though there had been numerous complaints about the dogs that killed her, and inaction by the council in declaring them ''dangerous'' under the Companion Animals Act.

A ''dangerous'' dog was one that has ''without provocation'' attacked or killed a person or animal, and it would have to be constrained in accordance with the legislation.

The case involved some quite tortuous reasoning about ''without provocation''. Justice Anthony Whealy reasoned that because the dogs had been trained to kill pigs they did not need to be provoked to kill a pig and by extension, although it was not clear, they could kill a small child.

Just what a pig has to do to provoke a killer dog is also not certain.

In this sense, the dogs were provoked as a result of their training, and because of that there would be a problem in declaring them dangerous, under that definition.

Since this death the legislation has been changed to proscribe the attack kind of ''hunting dogs'' as dangerous dogs. But that is not much help to Tyra's father and brother who sued in nervous shock for damages.

Whealy did not accept that the dogs owned by Mr Thomas Wilson had a history of causing serious harm, although there were instances where his dogs seemed to menace or frighten neighbours or passers-by.

He dismissed the claim that ''these dogs were trained hunting machines'' as ''highly emotive and overlooks the fact that they were trained to hunt pigs not humans''.

The distinction between a pig and a small child may not be as sharply defined to a killer dog.

Importantly, Bob Carr's 2002 legislation, which raised the bar for claimants against councils and other public authorities, really nailed shut the Kuehnes' case. In this state, a council can be on notice about a danger, but escape liability except in the most ''unreasonable'' circumstances.

Many would have thought this case was one of them, but apparently it's emotive to think so.



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