High Court slams case against ex-magistrate
02.02.2005
HIGH Court judge yesterday slammed the Queensland justice system's handling of the case that led to the conviction and jailing of the state's chief magistrate, declaring it was ``fairly weak''.
Just after Justice Michael McHugh made his extraordinary attack on the opening day of Di Fingleton's appeal, she left the courtroom in tears and had to be treated by paramedics in the foyer and later underwent tests in hospital.
Justice McHugh asked counsel for the Queensland Director of Public Prosecutions, David Jackson, QC, how any jury could have found Ms Fingleton guilty of the charge of retaliating against a witness.
He also criticised the summing up to the jury at the second trial judge John Helman of the Brisbane Supreme Court.
``In a major criminal trial I have never seen summing up like this before,'' he said.
``The jury got no assistance. Is this a standard model of summing up in Queensland?''
The appeal was heard by six of the seven members of the court. Justice Ian Callinan, previously a leading Brisbane barrister, did not sit.
Last night Ms Fingleton told The Australian she was over-whelmed by the events in court and felt ill.
``I had a turn, but I can say I am okay now and I'm home fit and well. It was all just a bit too much for me,'' she said.
Queensland Attorney-General Rod Welford last night said: ``It was a complex and unusual case, however it is not appropriate for me to comment while the appeal by Ms Fingleton is in progress before the High Court.'' Queensland's Director of Public Prosecutions Leanne Clare also said it was inappropriate to comment.
Ms Fingleton's husband John McGrath consoled her as she sat sobbing in the foyer, her cries echoing throughout the building. With a white towel held over her eyes, her husband and a friend surrounded her.
Ms Fingleton was originally sentenced to 12 months' jail after being found guilty in June 2003 by a second jury of retaliating against co-ordinating magistrate Basil Gribbin. The case revolved around Ms Fingleton's demand in an email to Mr Gribbin to show cause why he should not be demoted after providing an affidavit to magistrate Anne Thacker who was fighting a transfer.
Ms Fingleton's counsel, Bret Walker SC, argued that under Section 51 of the Magistrates Act 1991, a magistrate's administrative work had the same ``protection and immunity'' as their work in hearing cases. He also argued that Mr Gribbin was never a ``witness''.
Justice McHugh said the ``correct issues were never put to (the) jury in any shape or form. ``Did she in fact not have confidence in his leadership abilities, was that a reasonable excuse for calling on him to show cause? Those issues were never put to the jury.''
Justice McHugh told Mr Walker when he sought leave to appeal last year that if Ms Fingleton's case were proved it would be hard to imagine a stronger case of a miscarriage of justice.
Justice Michael Kirby said yesterday there had to be a point when a chief magistrate had the power to conclude she has lost confidence in someone she appointed. The Queensland Government will be closely monitoring the court case, which could lead to Ms Fingleton's reinstatement.
The first jury could not reach a verdict after 17 hours of deliberation. The second jury took four hours to convict. The Queensland Court of Appeal upheld the conviction, but reduced the prison time to six months.
At the trial, which followed a finding by the Criminal Justice Commission that there were grounds for prosecution, her counsel, Russell Hanson QC, painted the case as a ``workplace squabble'' that had escalated out of control.
She was prosecuted by NSW lawyer Margaret Cunneen, who obtained convictions in western Sydney's ``Lebanese gang rape'' trial.
The appeal hearing continues today.
