“As to ‘belittling, harassment and bullying of the prosecutor’ the judge accepted that he made unacceptable remarks. He went further and accepted that it was ‘judicial bullying’.” HUGH SELBY salutes the process, but decries the need to have facts of the Newlinds case leaked.

Last Friday and Saturday mainstream media gave plenty of space to the pasting allegedly handed out by the NSW Judicial Commission Conduct Division to NSW District Court Judge Robert Newlinds SC for his conduct during a 2023 sexual assault criminal jury trial. 

The criticisms, as so far reported, go to spoken and written remarks that he made during the proceedings – which means both the trial and the later successful application by the defence for the Crown (state) to pay its legal costs. Such cost applications are rare because the usual rule in criminal cases is that the state neither pays nor seeks costs. 

NSW passed legislation to allow the defence to get its costs in limited situations. There is no such provision in the ACT, despite decades of opportunity by all political parties to redress this injustice.

Returning to Judge Newlinds, we don’t know from the media reporting whether his remarks were made in open court, with the jury present or not, or in his chambers. These differences matter when assessing the gravity of his alleged departure from judicial norms.

Another leaked report

Naturally, I assumed, as you might too, that the Conduct Division report giving the detailed facts and reasons would be readily accessible. Not so. It was not on the NSW Judicial Commission website. Nor was it included in the NSW Parliament tabled reports.

The Judicial Commission was established under the Judicial Officers Act, 1986. 

Sections 28, 29 and 37A set out what is to happen with a report of the Conduct Division. The Conduct Division did not recommend that the judge be removed from office. Consequently, the following people were to be provided with copies of the report: the chief judge of the District Court, the Commission, the judge, and the DPP as the complainant. The attorney-general may be given a copy.

The act is silent on the Commission “publishing” the report by, for example, putting it on its website.

The events of the past few days show that a legislative amendment is necessary.

Lack of timely public access to an authentic report about the alleged conduct of Judge Newlinds, or any other judicial officer, is not a good look. At the very least there should be a clear, easy-to-find statement on the Judicial Commission website that the report has been completed and the timetable for its distribution laid out. That should be accompanied by a summary that is approved by the Conduct Division.

As soon as practicable the report should be available on their website in the same way that court and tribunal decisions are freely available. This means that in some instances, as in some court and tribunal matters, parts of decisions will have to be concealed for short or extended periods. If that “redaction” is properly disclosed then there has been open justice.

Following weekend inquiries, I now know that the report was leaked on Friday. What you and I don’t know is whether the mainstream reporting was based upon a close and careful reading of the leaked document, or the much easier copy and paste of someone’s unofficial summary. This matters for the credibility of the report and its authors, the reputation of Judge Newlinds, and an assessment of the response by the NSW DPP to the report contents.

It is a well-established judicial practice to have key point summaries of some decisions at the start of a decision. These are known as headnotes and they come with an explicit comment: “The headnote is not a part of the decision”. This is for good reason: a summary is just that and no more.

A summary is limited not only by the inevitable condensing of material. It is also limited by the perceptions, knowledge and abilities, and time constraints of its author. 

I have been provided – not by the Judicial Commission – with a copy of what is alleged to be the leaked document. Should I assume that it is authentic and complete? 

In this age when news is so easy to fabricate I am loathe to make that assumption. I would prefer to see a media statement on the Judicial Commission webpage that admitted the leak and authenticated a particular document as accurate. More about that below.

Leak inquiries

Capt Cook’s Endeavour struck a submerged reef on our east coast, sprung a leak, and had to be beached for repairs. He and his crew needed to find out what, why, and how to fix it. They did and they sailed on.

Leaks about matters of political sensitivity are handled rather differently. As Sir Humphrey usefully tells Bernard in “Yes Minister”: “The ship of state is the only ship that leaks from the top”. 

For that reason leak inquiries into topics of public interest are not intended to find anything.

The NSW Commission’s willingness to be helpful and open to my request for information about the report this past weekend was as unexpected as it was welcome, especially given the contrasting confected fury by our “full-transparency loving” chief minister about the release of the entirety of the Sofronoff Report to “The Australian” and the “ABC” in July 2023.

That’s a fury for which we taxpayers are still paying. It will soon be five months since our Integrity Commission (the body that is yet to finalise its report on the Campbell Primary School renovations tender debacle in 2019/2020) announced that it was investigating Commissioner Sofronoff’s provision of embargoed copies of his report to two media organisations. See here for further detail. 

When the Integrity Commission gets around to updating the information on its webpages, it might make the right decision and close down its “leak inquiry”. There’s an odour about it that doesn’t match the clean perfume of “integrity”.

That done, I wish the Integrity Commission would share with us why the progress of the Campbell inquiry over some years is so glacial when Commissioner Sofronoff investigated, conducted public hearings, and released his comprehensive report in seven months. All but one of his findings survived a court challenge.

Apropos of ”good for one, good for all”, it was bemusing to read well-known journalist Janet Albrechtsen (she who had such favoured treatment from Commissioner Sofronoff) being upset at her lack of access to materials from the WA Supreme Court in the current Reynolds v Higgins defamation case, when – so she claimed last week – a well-known legal commentator was given some access. Once upon a short long time ago, the colloquial word for her situation was “diddums”.

Inevitably, complaint bodies are flawed

There are other surprises in the Newlinds matter that go beyond his conduct. The first is that “complaints about judicial officers” are not often taken seriously. See here. This one was taken very seriously. It was not politely steered towards “trash” with one of the well-used reasons to do nothing. 

Instead, this complaint made it past the barriers, all the way to a panel of three. And not just any panel. Here is who was on the panel: the NSW Chief Justice; a former, much-admired Justice of Appeal; and, as lay member, an internationally known professor of applied mathematics. That’s as good as it gets.

Was this response because it was the DPP who made the complaint, not a mere counsel, or a disaffected member of the public?

We should not be surprised that the response of “accountability bodies” (such as anti-corruption, ombudsman, complaints about police) bears a direct relationship to the current “influence” of the complainant. For a recent example, there is former ACT DPP Shane Drumgold’s recent, unsuccessful attempt to have the ACT government suppress parts of the Sofronoff report. It is the “former” that matters.

Some might think he was ill advised to apply. Au contraire. The history of our Australian DPP office holders, and other powerful legal system figures, is replete with “accommodations” by other powerful figures for inappropriate conduct, often – but not always – arising from a tipple or two too many.

Besides, when he had earlier made his allegations and called for an inquiry, he was a person of influence, so much so that he got an inquiry – just not the one he wished for.

The NSW DPP’s decision to complain directly, rather than leaving it to her “Crown” who conducted the trial to do so, was inspired.

What the Conduct Division did

I have obtained a copy of an 87-page document with 216 numbered paragraphs, three signatures, being 67 pages of analysis and 20 of annexures. There is no headnote. I shall assume its validity but recognise the possibility that it is, in whole or in part, a clever fabrication. You should do the same. 

The NSW DPP is reported to have been happy with the results from her complaint which raised grounds of lack of judicial competence, failures to maintain the expected judicial detachment, unreasonable language, and “baseless criticism” of the DPP and the prosecutors’ office.

The judge made written submissions to the Conduct Division, variously prepared by himself, a well-known firm of solicitors, and a respected senior counsel. He declined an invitation to make spoken submissions.

The “report” sets out the Australian courts’ approach to non-interference in DPP decisions to prosecute or not prosecute. That approach reflects maintaining “the independence and impartiality of the judicial process”.

Quite so, but that approach assumes that DPPs and ODPPs faithfully and objectively and without error make decisions to go or not to go to trial. To err is human, a factor remarked upon by several judges this past year.

The present approach is lopsided. DPPs are non-accountable in a world where no one else shares that status. Consequently, given the courts’ refusal to overrule a DPP decision, we need some other, non court, mechanism to review those decisions. 

If not that, then the ability of successful defendants to recover their legal costs and compensation for mental harm, loss of reputation and interference with their lives should be strengthened.

Having the experience to grasp what’s going on

The prosecutor in the case was a solicitor advocate, an ODPP employee considered promising enough to run trials. Being a solicitor advocate is a stepping stone to being appointed a Crown Prosecutor.

With more proven experience and a quality trial record prosecutors get more discretion. That said, the buck stops with the DPP. For that reason it is usual in trials for there to be interruptions while the prosecutor contacts the DPP or one of the Deputy DPPs for instructions.

A judge who is experienced in criminal trials knows that process. So much so that they might even suggest to a new prosecutor that they contact their superiors for advice and direction. 

This is a gentle way of letting an inexperienced advocate get essential advice when they may not know that they need such advice. Judge Newlinds SC had been a commercial litigation specialist and did not know it. That goes to his competence to conduct criminal trials.

He had been a judge for only six months when given this trial. Once upon a time, the practice was to place a judge with no or little experience in a courtroom between the courtrooms of two experienced judges from whom answers to the question, “What do I do now?” could be obtained. I don’t know whether the practice continues, or whether – if it did – the judge could use it for the trial that led to the complaints. 

Solicitor advocates, and other advocates who are “learning by doing”, hope for opponents and judges who will, as necessary, throw them a life line. Sometimes that happens. Sometimes, however, they are hung out to dry, a painful experience that saps confidence.

The ability, or the self-confidence, to react assertively to a judge forcefully putting errors is not the norm. It is unusual, and more likely to be found among those with years of experience and knocking on the door for a judicial appointment, or past wanting the chance.

To illustrate this point from some years back: the public gallery was full, a witness was being abusively cross-examined but their advocate – a rising star – did nothing. The presiding officer also did nothing. 

At length an interruption from an older advocate who was acting for another party who demanded that this wholly unacceptable abuse stop. It did – immediately. I’ll name the hero: Williams. To protect the multiple guilty they will remain nameless.

The panel reviewed several instances where the judge showed a lack of knowledge of criminal law procedure. Tellingly they concluded: “There was a major disconnect between the judge’s lack of experience and familiarity with the criminal jurisdiction and his preparedness to be confidently outspoken about it.”

Somebody should have shared with him one of the attractions of criminal law practice, namely that the bench and bar table are happy to assist each other. That’s a path to justified confidence.

Call it as it is – unwarranted attacks on the ODPP

In her complaint the DPP set out eight examples alleging a lack of impartiality, detachment and proper demeanour.

As to “belittling, harassment and bullying of the prosecutor” the judge accepted that he made unacceptable remarks. He went further and accepted that it was “judicial bullying”.

I can imagine the prosecutor standing at the bar table, thinking as the judicial barbs landed: “What do I say, how do I say it, when do I say it?” 

A particularly torrid exchange occurred in the absence of the jury. If the judge was “going off” in front of the jury then there are additional questions running through the hapless prosecutor’s mind: “Should I be asking for the jury to be sent out before I respond ?” “Should I be asking for a short adjournment so that I can contact the Deputy DPP and get instructions about how to answer and whether I should be asking the judge to discharge the jury?”

Written transcript often does not convey the atmosphere in a courtroom. However, in this instance the transcript clearly shows, to use the colloquial, that his Honour “lost it”. It also shows that the prosecutor parried with courage and respect.

We don’t have the same “best evidence” that was used by the panel. They had the audio file and they listened to it with this conclusion: “The conduct in question is even worse (when listened to)”. 

This is real progress. Older advocates will recall not so long ago that appeal courts would refuse to listen to the audio, reading only the transcript, so as not to be obliged to criticise their trial colleague.

There followed an analysis of unflattering, disrespectful and improper comments by the judge about the complainant. The art of deftness in judicial comments and why that is essential is covered in judicial training materials. 

Even more basically there is a maxim to be followed when opening one’s mouth in a courtroom, be that as an advocate or decision maker: because every word matters, keep your mouth shut – and your writing fingers still – until the brain has done its work.

To deliver reasons and comments adverse to the DPP and the ODPP that are not grounded in evidence, and without giving the DPP the opportunity to respond – all of which happened – is “fundamentally unjudicial conduct and inimical to basic procedural fairness”.

The panel investigated and made findings about the conduct of a judge. It was not investigating the wider question of how decisions to go to trial or not go to trial are made within the NSW ODPP. 

That is an important issue, especially given the reported comments of other, rather more experienced judges that call into question some decisions to go to trial. 

However, no one can take from the panel’s exhaustive assessment of one judge’s inadequate conduct in one case any insights about the culture and policies within the NSW ODPP.

Winners and losers

Who then are the winners? Are there any losers? We, the community, are the biggest winners. 

This panel decision sets a standard for thoroughness, a dispassionate approach, and clearly set out, persuasive reasoning.

The next winner is the Judicial Commission: its standing in this area of judicial conduct is enhanced. This panel report complements the Commission’s wonderful bench books that aid judiciary and advocates, and the materials for new judicial officers.

The DPP and her many staff are also winners, not just because the director stood up for her staff, but also because there is more clarity about what they and defence counsel can expect from trial judges.

Judge Newlinds is also a long-term winner. Despite the pasting, he has years in which to hone his judicial skills, but sitting in commercial cases, which are his strength. 

More than that there will be other judges, all around the country, who will be envious of his escaping the workload of one sexual assault trial after another, week after week, month after month.

There is one loser: the piece of work who leaked the Conduct Division report. I wonder if they know their fellow lowlife who leaked the Sofronoff Report here in the ACT?

These people are not principled whistle blowers. They have no principles beyond a misplaced belief in their own importance.

Former barrister Hugh Selby is the CityNews legal columnist. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.