Magistrate's lifetime in the law marked by peceptiveness and practicality

Some in the legal world get misty-eyed over the Mason and Brennan High Courts (1987-1998), often seen as the exemplars of choosing substance over strict legalism, of common sense and practicality over unbending adherence to form and procedure.

But you don't have to go back all those years or travel so far along Australia's court hierarchy to find practicality in abundance and a real concern that people coming to court should go away understanding what it was all about.

Chris Bone, who has just wrapped up his last judicial appointment, as Queanbeyan's magistrate, dispensed practical justice in the Local Court of NSW for more than three decades.

The president of the Southern Tablelands Law Society, Andrew Herring, noted at Bone's recent ceremonial sitting: "In a busy list that the Local Court faces each day, it is no doubt a daunting task to bring justice to those who seek it, matter after matter."

Bone did things for himself that many of his colleagues on the bench would insist on adjourning the court for, or dispatching a staff member to fix.

Herring recalled: "In the midst of my making submissions, Your Honour rose from the bench, as is your habit, to pop out and grab something from chambers. Unfortunately for me, I was paying a little too much attention to my notes at the time and looked up, mid-sentence to discover an empty bench."

Defender Michael Lalor attributes his own longevity in the legal profession to Bone's court manner.

Somewhat worn by appearances before those of a more combative nature, Lalor had been considering leaving the law some years ago. But then Bone arrived on the South Coast circuit and Lalor continues in practice with the Aboriginal Legal Service.

With the kindly manner came fairness, Herring recalling, "I cannot count how many defendants have said to me, even after receiving an adverse outcome, 'Fair cop'."

This was, he told Bone, a proud legacy "in the era of government by talkback radio".

Bone himself notes, "When a person leaves court, the most important thing they should understand is why it is that whatever happened to them happened. If they don't want to understand or don't have the ability, then I hope that's not my fault."

Among the many homely missives is a drive for considerable law reform and, now that he is leaving the bench, Bone is able to speak publicly on a number of fronts. "I wouldn't have dreamt of talking freely when I was a magistrate," he said.

First in his sights is the highly politicised NSW Bail Act.

Bail criteria underwent a considerable relaxation in the past year – a relaxation that lasted only a matter of months and was a catalyst for the removal of an Attorney-General.

The changes did away with various presumptions in favour of bail in certain cases and against it in others, instituting instead a test of "unacceptable risk".

An outcry followed, fuelled by The Daily Telegraph and radio host Ray Hadley, among others. The responsible Attorney-General, Greg Smith, a former deputy Director of Public Prosecutions, was rolled by his party and Premier Barry O'Farrell, and legislation largely restoring the old regime is now back in place.

"Did it come about because magistrates were seen as too soft?" Bone asked, "Did it come about because it was what the people really wanted? Or because some commentators have a lot of influence? Did it come about because police felt it was not strong enough?

".…I don't know the answers to the questions but certainly, when you look at the Bail Act, a magistrate's power to act in a certain way has become very limited.

"People need to be reminded that bail was something that can restrict the freedom of an innocent person. If you're going to err, you should err on the side of freedom rather than incarceration if you possibly can, because the person is innocent until proven guilty."

While acknowledging that magistrates lived in fear of granting bail to someone who then went out and "raped and pillaged", the new laws were "a problem".

"We're going to lock up a lot more people who are either going to be found innocent or who alternatively, are going to get a very light penalty at the end of the day," he said.

Bone holds similarly strong views on mandatory sentencing. "When you're imposing a sentence on someone, you look at two things: the crime and the criminal," he said, but mandatory sentencing let a decision-maker look only at the crime.

He gave the example of two drink-drivers, both with a blood-alcohol reading of 1.3 and both 70 years old. One has a host of priors; the other 50 clear years on the road.

"Mandatory sentencing gets rid of the criminal," he said. "You don't look at the person at all. If that's all you're going to look at, you certainly don't need judges or magistrates."

He acknowledged something of a soft spot for the deposed first law officer Greg Smith, having, as a wicket-keeper, been the happy recipient of many nicks from batsmen to Smith's "very wonderful" out-swinger. But it was the bowler who himself had now been bowled by his own teammates.

Bone noted the new pressures that many politicians had bent to.

"The press now is instantaneous," he said. "All politicians … are subjected to a lot more pressure than a minister of the crown would have been subjected to 50 years ago. There's rarely been an experiment that has lasted for such as short a period of time as the Bail Act."

One area of law reform where Bone had complete success came up during his time on the coast, when he saw the damage done to local industry by abalone poachers and found the maximum penalty was only three months' imprisonment.

He wrote to the minister. The penalty is now 10 years.

Bone holds a special place for care proceedings, admitting that it may sound "in a way a bit odd", given the view of many that the work is "soul-destroying", involving Solomon-like decisions.

"I can't think of anything worse than leaving a child who shouldn't be with particular parents with those parents," he said. "And if I can think of anything as bad, it's taking a child away from parents who, with a little bit of encouragement, can look after that child properly."

In the majority of these cases, what should be done becomes "pretty glaringly obvious" relatively quickly.

The obvious love of the law has grown in one who confesses he doesn't know why he chose the legal profession when a young man and who didn't imagine the country bench.

Having lived virtually his whole life to age 39 within 11km of the Sydney GPO, Bone says going to the country was "the best thing I've ever done in my life."

Originally from Coogee, he went to Sydney University, beginning work with the Public Solicitors Office as legal clerk in 1968. There he met, and then married, Gwenda in 1972, moving as far as Greenwich on the lower North Shore.

The year of Bone's appointment, 1984, is the last of a time now largely forgotten: most appointments then came mainly from the ranks of registrars (then still known as clerks of petty sessions) and elevation was to one of three tiers: traffic magistrate, country and children's magistrate or city magistrate – with respectively increased pay at each tier.

Bone began in traffic, at the Downing Centre, Bankstown and Parramatta, but, with the advent of the Local Court Act, the three tiers ceased after he'd had only five months in the job.

The registrars appointed had been quite used to country appointments but some of the new city-solicitor appointees were not always so sure, including, at least initially, Bone. Then Chief Magistrate Clarrie Briese asked if Bone would like to go to Inverell.

"I remember my words quite clearly: 'Not particularly. Where is it'?" he recalled, but that answer had been "as close as he had got to a 'yes'."

After the Inverell circuit, came Ballina and then Batemans Bay and finally Queanbeyan.

Country service proved very different to the city: one was a jack of all trades, taking up coronial, care and children's matters, among others, including the intricacies of cattle duffing, how many chops there were in a sheep, and just exactly what constitutes an abattoir.

And the local beak could not be anonymous like his city brothers.

A keen cricketer, Bone joined a club at Inverell, notwithstanding his 39 years when appointed to the bench.

In his second game, the judicial opening bat was confronted by a bowler he had sentenced to a driving disqualification on the previous Thursday. "There he is with a shiny red ball in his hand, pawing the ground like a bull with malice obviously in his mind," he recalled.

Another of similar mood greeted Bone on his arrival in Queanbeyan – the city's resident judicial officer being assaulted in the main street by a troubled man, who received several months in prison from another magistrate for his offence.

Undaunted by the poor welcome, Bone was a true local, contributing generously to the Queanbeyan Gift, following the Kangaroos in the local rugby league and travelling to Sydney – an ordinary fan on the train – up to eight times a year to watch his beloved Sydney Roosters.

Another great interest was thoroughbreds, and retirement may afford more time for another of his hobbies, writing brief histories of country racing clubs.

Like his homilies in court, these works were not commissioned by the recipients, but were lovingly prepared and gratefully received.

As well as the sporting side, Mr Bone has been a keen walker, often heading up Mount Jerrabomberra from his Karabar home and he is also an inveterate picker of blackberries, with several kilograms making their way back for the staff at Queanbeyan courthouse.

His Honour smiled in reminiscence: "It's been a pretty fair life, overall, I suppose."

CHRIS BONE'S VIEWS FROM THE BENCH

1. BAIL: Ensure decisions about denying a citizen liberty relate only to the proceeding of court matters and the proper carriage of justice. The aim is to ensure that defendants attend court, that there is no prospect of re-offending and that witnesses and evidence are not interfered with. Bail should not be a lever of punishment. That is what sentencing is for.

2. MANDATORY SENTENCING: Sentencing should look at both the circumstances of the crime and the subjective features of the offender. Mandatory sentences look only at the crime, removing a range of factors that are highly relevant.

3. MEDIA: His Honour found no fault when reporters were actually in court for proceedings, but "I have great difficulty with people reporting cases when they haven't been there and they haven't looked at a transcript and they've only been given the barest possible information."

4. ROAD TOLL: Random tests prove the contention that it is capture, not increasing sentence, that deters, and Mr Bone loves his NSW statistics. "I quote them all the time in court – 1982: 1253 deaths in NSW; 2011: 364". And more than a million more cars took to the state's roads over that period.

5. TECHNOLOGY: DNA was an enormous advance, but great care was needed, His Honour pointing out the need for corroborating evidence as material could be transferred and samples affected. The growth of cameras – security CCTV, everyone's own handheld devices plus police in-car video and recordings of interviews with suspects – was shortening a host of matters as defendants saw their options on plea narrowing before them in full colour. "It's of enormous benefit to everybody," Mr Bone said.

6. NSW JUDICIAL COMMISSION: Born out of adversity (when two judges faced criminal charges – with both being acquitted), it had become "a world leader" – conferences, instantaneous law reports, and the famous bench books, which guide judges, magistrates and practitioners alike. It was the first body to be able to examine all manner of complaints against judicial officers, where previously the very high previous threshold of "proven misbehaviour" had to be reached.

7. WOMEN: From four on the bench when he took his place, now women were regularly occupying every role in any particular criminal case: judge, magistrate, prosecutor, and defender. Forty years ago, many had said the sky would fall in; now, it was almost beyond comment.

Andrew Fraser is a criminal and traffic lawyer with Armstrong Legal. afraser@armstrongleagal.com.au