Unhinged beaks

Update ... Judging by the deep pool of informal gripes and grumbles about Jennifer Betts, parliament may have been too forgiving ... Brian Maloney pleads for his job ... Theorora sifts through bits of Local Court rubble

Further and better particulars about Magistrates Betts, Maloney and other beaks have poured into my in-tray.

In taking the kindly approach to Jennifer Betts last week parliament has given the Judicial Commission a poke in the eye. It's unlikely the commission will be referring fresh cases of judicial misconduct to Macquarie Street too soon.

Four complaints against Betts were upheld by the conduct division of the Judicial Commission: the O'Regan/Passas complaint from August 2003; the Farago complaint from June 2007; the Castle complaint, concerning her conduct in Ms Cooper's case in June 2009; and the Maresh complaint, which arose in October 2009.

Magistrate Betts successfully explained from the bar of a relatively empty NSW Legislative Council that her poor judicial behaviour was attributable to a failure to take anti-depressant pills.

Betts could not have been meeker or more contrite, unlike the overbearing character in court.

Grabs from the transcripts cited by the conduct division show what life has been like in Jennifer Betts' court. 

In the Passas' hearing concerning an application by a local councillor to revoke an AVO, HH said:

"Look, I'm not here to answer your questions. This is not a government forum; okay? ...

Look, there's no votes to be gained by making your little speech from your platform there, ma'am ... or do you wish to make another political statement? ...

If you want to whinge, you whinge outside ... I resent spending one more second on your matter ...

Ma'am, get out of this courtroom, ma'am, please."

When a Mr O'Regan, who was sitting in court, told Ms Passas she had been denied justice the magistrate threatened that he could be charged with "contempt of this court".

From the transcript of Ms Collins' appeal against the suspension of her provisional driving licence (the Castle complaint):

"Shut-up, please, ma'am. I'm going to talk to you now and you listen hard. That response is another black mark against you, okay - 'Revenue raising'. That is the most ridiculous thing any person can say to anybody else... And you think you're God's gift do you? ... You're explanations are pitiful... Shut your mouth because I don't think it's going to do any good..."

From the Maresch transcript, concerning a fine for parking a car with trailer in a loading zone:

"It's on offence of strict liability, sir, okay? ... You are not a lawyer, okay? ... And I've had a gutful of people such as yourself coming to this court pleading not guilty, having hearings and getting found guilty as soon as thery open their mouths."

When he tried to explain, she interrupted, again:

"Just listen to me. I haven't finished yet, okay?"

Magistrate Betts: adjustment disorderThe Judicial Commission had reports from psychiatrists Jonathan Phillips and Peter Klug. Both said she had an an adjustment disorder with associated mixed features of anxiety and depression.

Incidentally, "adjustment disorder" was also Jon Phillips' diagnosis for Marcus Einfeld. Perhaps Betts and The Mensch should be introduced.

I'm told that "adjustment disorder" is more responsive to long term psychotherapy that it is to drugs.

Psychiatrist Dr Howe Synnott, who specialises in the prevention and management of psychiatric conditions in the workplace, points out in an email to me:

"The pertinent point with the belligerent Betts is that the diagnosis of a depressive disorder may have little to do with her inappropriate behaviour.

Life is far more complex than simply attributing the totality of one's actions to the presence of a psychiatric diagnosis.

Also, you may be aware that we psychiatrists have no way of validating any psychiatric diagnosis that we may assign.

There is no 'objective' scientific test to prove that there is indeed a condition - unlike many of the diagnoses in other areas of medicine.

The diagnosis is based on the subjective symptoms supposedly being experienced by the individual - that are then described to the psychiatrist."

In other words, even if she is taking anti-depressants no one should be surprised if Betts reverts to form.

Indeed, in her address to the Legislative Council Betts said at the time that the two matters in 2009, the subject of complaint, she was not on medication and so "more vulnerable to life and work stressors".

Otherwise, according to her submission, she had been on medication since 1995. The 2003 complaint and the 2007 complaint arose when she was medicated.

Magistrate Betts is perfectly capable, as the commission found, of being intemperate and discourteous, even while medicated.

Lawyers who appear regularly in the Local Courts say that Betts' misconduct spreads wider than the four matters dealt with by the Judicial Commission and parliament.  

They regard Betts as out of control. "Interfering ... nasty ... [and] bully" are words used to describe her behaviour.

Her claim that the proportion of complaints that landed her in strife amount to 0.0008 percent of all the matters she has heard is specious.

"The means I have been able to discharge my duties in accordance with my oath on 99.9992 percent of occasions."

It ignores the unreported subterranean well of unhappiness by lawyers and litigants alike. Legal Aid lawyers, in particular, are aware of what has been going on.

One lawyer with a Local Court practice described her poor behaviour as occurring "daily".

She bullied a woman who was prosecuted for taking a dog on the Ryde bus. The experience was so unpleasant that the defendant, Eedra Zey, says it contributed to her post-traumatic stress disorder.

Betts is far from alone. NSW country solicitors dare not report one local magistrate who is notorious for his Jekyll and Hyde behaviour.

Charming in private, in the court room he is a bully and a thug. Practitioners fear that if they complain, and their complaints go nowhere, they would be in diabolical trouble.

At least one young lawyer simply refuses to appear in his court on the grounds that clients would be disadvantaged.

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Magistrate Maloney: hypomanicMagistrate Maloney went before the Legislative Council on Tuesday (June 21) at 3.30. The parliament will debate the address later this week.

Among the things he suggested to the politicians that there was an unspecified "agenda" as to why he had been picked on by the Judicial Commission.

"Is there an agenda? Many outside this chamber are asking the same question."

He rounded off his address by asking the hon. members to take "the oppostunity to join Brian Maloney in a campaign against mental illness".

The commission looked at four complaints against Maloney.

The Altaranesi complaint, where the magistrate ridiculed, bullied and denied natural justice to a defendant in an AVO matter. This was found to be substantially caused by his bi-polar disorder (or "disease" as Maloney referred to it).

Maloney insisted Altaranesi give an undertaking rather than have a hearing:

"When you get in the witness box it's like open heart surgery. They cut you open - pull you open like some Portuguese chicken and mess with your bits ... The last thing you want is an order from the court to help your employer give you the sack."

Altaranesi still wanted a hearing and the magistrate said, "No, you're not getting one." Later he realises that Altaranesi had filed a cross-application for an AVO:

Maloney: "Oh, there's a cross-application. My God. He wants to have his word against her too. I just realised ... Oh shit ..."

The Banovec complaint, where the magistrate struck out subpoenas and made an order for costs without calling or hearing Banovec on the matter.

He also refused, without properly hearing him, an application for an adjournment so Banovec had time to study a notice of motion. This complaint was partially substantiated, but the cause was largely attributed to the bi-polar disorder.

Among the magistrate's outbursts when Banoven sought an adjournment was this:

"The stadium's been booked, the pies, sausage rolls, fizzy drinks and beer have all been ordered. It's like the Roosters and the Warriors on a Friday night... For all intents and purposes this is your Friday night."

The Kiloh Centre complaint. The Kiloh Centre is at the Prince of Wales Hospital, Randwick, where Maloney conducted inquiries under the Mental Health Act.

The complaint said he made comments about the weight of two health and security systems officers, poking one in the tummy, and saying they would need "special uniforms" to fit them.

He also asked psychiatry registrar Dr Alison Bautovich to stand-up and demonstrate how pregnant she was. Maloney insisted she turn "side-on so we can see how pregnant you are".

He then compared her to his wife's own pregnancy and his dislike to antenatal classes. In an inappropriate sexualised gesture he put the index fingers of both his hands to the corners of his mouth as if to demonstrate the pain of child birth.

Dr Bautovich said in her statement:

"The only inference I could draw from that action was that he was stretching his mouth in the same way a vagina would be stretched while giving birth."

The Judicial Commission found that Maloney was at this stage suffering a hypomanic phase of his bipolar disorder.

In July 1999 Maloney gave an undertaking to the Judicial Commission that he would ...

"not be too loquacious, not to interrupt solicitors, not to introduce matters reflecting his personal experience, to be more judicial and to allow matters to run their course without interfering."

The commission found that in the Altaranesi, Branovec and Kiloh Centre matters Maloney had breached that undertaking.

The screen saver complaint. In February 2002 the magistrate participated in a training session at the Judicial Commission offices in George Street, Sydney.

Incredibly, he drew the attention of the commission's education officer, Ruth Windekler, to the image of a naked woman on his laptop.

He said:

"Hey Ruth what do you think of the Canadian on my screen saver."

Ms Windekler comes from Canada.

He did the same to Joy Blunt, the senior systems officer at the commission:

"What do you think of my wallpaper?"

Ms Blunt said that she got the impression that the magistrate was seeking her approval or endorsement of the naked woman.

The commission's report on this incident said:

"Magistrate Maloney's movement from no recollection to forceful denial was less than convincing."

Finally:

"The conduct division [of the Judicial Commission] is of the opinion that the matters referred to in this report could justify parliamentary consideration of the removal of magistrate Maloney from office on the ground of proved incapacity." 

*   *   *

Among the stories about Maloney that have lobbed there is one where he called a lawyer appearing before him, whom he thought was a lesbian, a "carpetmuncher". 

There was also this expressive slice of judicialese from a Centrelink case:

His Honour: "The ones I really hate, and the ones that Ms Nettam's people hate, and the ones that the High Court and other courts really do loathe are the people who are out there with X number of names, X number of bank accounts, out there ripping off the system. Absolutely ripping off the system. They are the bastards. They are the ones who have to get smashed, and I will smash them."

One of Maloney's calling cards is the verbose rant, a ragbag of personal observations, moralising and platitudes hurled from the bench:

Here he is on a woman accused of misleading Centrelink:

"Just having these young munchkins just to get to a certain next stage where they can do their thing, and she might pick up on things and might find a nice fellow.

Well she thought she did, but it was wrong. He turned out to be just about like all the others. And now she is beating herself up even more. 'So who is going to have me now with a baby who is two-and-a-half?' Am I right?

Your baby can be your absolute joy. Be careful, do not hold them too close. There is such a thing as a self-fulfilling prophecy. The more you try to keep them at home, the more they want to bolt."

One young woman, Louise Convy, who had appeared before him in 2008 on a very minor assault charge, told me she was "stunned and appalled" by Maloney's conduct of the case.

She said that he was an "absolute bully in that hearing and out of control".

"I think he's just an asshole and it irks me to hear him being called 'colourful'."

*   *   *

One would have thought that after 17 years as a beak enough would be enough for Betts. For Maloney it has been 15 years on the bench.

The problem is that there is no proper pension scheme for magistrates that allows then to bail out with dignity. If they haven't contributed enough they have to stay in the saddle to pay the bills.

If judges, who have served 10 years, are tapped for bad behaviour they can gracefully disappear on two-thirds of their pay for life and no one is the wiser.

Magistrates have to plead for the jobs before parliament. The lack of financial security is quite an issue affecting the independence of the magistracy.

*   *   *

Last word ...

The award for the most outstanding instance of inappropriate judicial behaviour is still held by District Court judge Susan Gibbs in Damjanovic v Sharpe Hume and Co.  

It is sobering to read the Court of Appeal's findings about her conduct.

Susan wasn't sent off to parliament and didn't lose her job.

*   *   *

See Judicial Commission report on Jennifer Betts

See Betts' speech to parliament

See Judicial Commission report on Brian Maloney