A magistrate's conduct is being examined by the territory’s judicial watchdog after she gave a man an envelope containing $50 cash to help pay for the hotel he would be released on bail to stay, The Canberra Times can reveal.
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Was the act one of compassion towards a vulnerable member of the community who had nowhere else to go? Does it raise questions about the magistrate’s impartiality and the transparency of the administration of justice?
On August 21 the outgoing Director of Public Prosecutions Jon White SC complained about Magistrate Bernadette Boss’s conduct to the attorney-general, who has by law referred the complaint to the judicial watchdog.
In the most serious cases, a complaint with the ACT Judicial Council can end in the dismissal of a magistrate or judge from their position. It is understood the complaint alleges Dr Boss’s conduct that day could call into question her impartiality and the transparency of the administration of justice in this matter.
Dr Boss started hearing the defendant's bail application in the ACT Magistrates Court early in the morning on July 31 this year. The DPP had opposed his release, saying there was a likelihood he would reoffend and not appear in court.
The man was struck by a drunk driver when he was 11, and has an acquired brain injury, The Canberra Times has previously reported. He suffers from mental illness, and had been living in a hotel but was otherwise homeless. He can also be volatile, and has been in and out of court for years for offences including unlicensed and drug driving and common assault.
He was in court that day after he went into his former bank on July 27 and allegedly demanded money from his account. The staff, who knew the man, told him he didn’t have an account there, and he allegedly abused and threatened to hurt them before leaving, court documents show. He was arrested three days later when he called police - though it’s unclear for what reason he called. Another magistrate had granted him bail nearly two weeks earlier on July 16, on a charge of possessing an offensive weapon.
During the bail hearing on July 31, Dr Boss said at one point she would be prepared to release him with the right conditions - but had no appropriate place to bail him to.
The magistrate rejected one option - a hostel - as unsuitable. It took all day but she approved a hotel found by his lawyers at the Aboriginal Legal Service. However, the room would cost more than the $50 cash the man had with him.
He did not have access to more money, which, because he received a payout for his accident and because of his mental health, is managed by the ACT public trustee and guardian, according to sources familiar with his situation. By this time it was late in the afternoon, about 4pm, they were not available to provide more funds, and the man faced a night in a jail cell.
Dr Boss gave the man an envelope containing the $50. The cash was passed to the man without comment via the magistrate’s associate and a defence lawyer and court came to a close. He was released on conditions including that he not consume illegal drugs or go near the bank. On a later date, Dr Boss recused herself from hearing the man’s case.
The DPP’s complaint is now before the ACT Judicial Council, which the government established in 2017 to promote community confidence in the justice system. The council is currently made up of Chief Justice Helen Murrell, Chief Magistrate Lorraine Walker, a barrister Bryan Meagher SC and a community representative Jenny Hodges.
Anyone can complain to the council about the behaviour of a magistrate or judge or their mental or physical capacity, according to a description of the process on its website.
When the council receives a complaint it can choose to dismiss it, refer it to the relevant head of jurisdiction, or conduct a full examination.
If a complaint goes to a full examination, and is substantiated, the council will refer it to the relevant head of jurisdiction and provide a report to the attorney‑general.
For serious complaints, the attorney-general may approve the establishment of a judicial commission, that could lead to a recommendation to the ACT Legislative Assembly to dismiss a judicial officer.
Confidentiality provisions in the law bar members and staff of the council from commenting publicly on complaints.
Dr Boss said it was not the practice of magistrates to comment in relation to matters before court and Mr White, who will retire at the end of the year, said he had no comment to make.
A spokeswoman for ACT Attorney-General Gordon Ramsay said he could not comment.
The council received 12 complaints about judicial officers during the 2017-18 financial year, its latest annual report said.
Eleven of the 12 complaints were made by self-represented litigants.
Eleven complaints were dismissed, while one was partly substantiated and referred to the relevant head of jurisdiction.
