Magistrate Clisdell v Reality

I have never looked upon ease and happiness as ends in themselves — this critical basis I call the ideal of a pigsty. The ideals that have lighted my way, and time after time have given me new courage to face life cheerfully, have been Kindness, Beauty, and Truth. Without the sense of kinship with men of like mind, without the occupation with the objective world, the eternally unattainable in the field of art and scientific endeavors, life would have seemed empty to me. The trite objects of human efforts — possessions, outward success, luxury — have always seemed to me contemptible.

Albert Einstein The World As I See It.

According to Magistrate Clisdell if you’re a blackfella, charged with an offence, plead not guilty and are unfortunate enough to end up before a court in Bourke, you are apparently not only guilty as charged, BUT you are further penalised for using what he terms the “Bourke defence”. While each member of any society is entitled to express his or hers own views, members of the judiciary and the magistracy are not entitled to prejudge cases or defenders, more importantly, they are not entitled to allow bias to colour reality, BUT this is exactly the direction Magistrate Clisdell’s comments are heading in!

Let’s pause for a moment and consider Albert Einstein’s words; “[t]he ideals that have lighted my way, and time after time have given me new courage to face life cheerfully, have been Kindness, Beauty, and Truth.” Surely kindness and truth, at the very least, should be at the core of the thought processes of every magistrate or judge. Apparently not so if you’re Magistrate Clisdell, for the reality is that many, many Indigenous Australians who appear before the courts on charges laid by white police officer’s are innocent, innocent victims of white quasi-official racism.

The implications of Magistrate Clisdell’s comments that “Where the ALS do a disservice to their clients is the constant inability to enter an early plea of guilty to charges where there clearly should have been a plea entered. The not guilty plea rate at Bourke and Brewarrina was close to 90 per cent,” is that every NSW police officer is a person of truth and integrity and that their word should be accepted over and above everyone else’s – especially those of a blackfella. This is where Magistrate Clisdell needs to stop and take a reality check.

On July 5, 2012 The Sydney Morning Herald reported in an article headed CCTV exposes police lie that a group of NSW police officers had been exposed as liars by CCTV footage which showed they assaulted a 23-year-old Dunghutti man Mr Corey Barker and not the other way round as they had claimed.

Ballina Local Court Magistrate David Heilpern referred the incident to the Police Integrity Commission, after finding that three NSW police officers had lied under oath and had “debased” the “administration of justice”. Magistrate Heilpern went on to say that; even when shown the DVD the officer “refused to accept that what was depicted was what had occurred”

What is worse, and what goes to the heart of police integrity and the criminal justice system in this country is that when the police were asked to produced the video tapes of the incident from the police station, they claimed that they were damaged and could not be used. However, when the damaged tapes were obtained by the prosecutor and repaired during Mr Barker’s assault hearing, they showed that there was, in fact, no assault by Mr Baker on police, but showed it was the other way round!

Magistrate Heilpern further said:

Make no mistake; this is not an example of a simple internal inconsistency in an officer’s evidence regarding speaking to another witness. I am satisfied that on balance that the officer has lied on oath about this issue in an effort to mislead the court…

We have four police officers giving evidence that the defendant would not put his hands behind him in the dock, then he punched Senior Constable Hill in the nose … and that he was given the opportunity to get up before being dragged away …

Not one of those things occurred.

I guess Magistrate Clisdell would argue that Mr Baker should have pleaded guilty and be convicted and sentenced for a crime he did not commit just to save the state time and money, not to mention the possibility of the courts social calendar being interfered with.

But let’s not leave the matter here, for it only gets better and better! On July 1, 2012 The Sydney Morning Herald reported under the heading Tasered for not showing his ticket, that a young man, Mr Michael Lindsay, while innocently travelling on a Sydney bus was Tasered by several of NSW’s finest for not showing his bus ticket. This sounds like a rather harsh penalty, even if guilty, which he was not, for what is in essence a very minor offence.

In this case Magistrate Lee Gilmour found that the NSW police proceedings were based on ”bad faith” because Constable Godfrey lied under oath. She awarded $12,000 in costs to Mr Lindsay, saying:

The problem for the prosecution in this case is that … clearly, unfortunately, this officer has lied both as to what he said occurred and the basis upon which he [Mr Lindsay] was asked to move off the bus; there does not seem to be any lawful basis upon which he was. (My emphasis)

Despite Constable Godfrey repeatedly saying Mr Lindsay swore, the magistrate found the police had not heard any offensive language.

The bus driver is clearly seen in some of the evidence before the court. He was not interviewed; nor was anybody independent of the transit police officers and that would seem to me, in these circumstances, to have been a deliberate omission.

I guess, using Magistrate Clisdell’s views as a guide Mr Lindsay should have also pleaded guilty to a crime he did not commit, in order to save the state money and the NSW police service embarrassment!

Finally let’s consider the following comments made by Greg Barns barrister and National President of the Australian Lawyers Alliance to the ABC’s Drum on 26 October, 2011:

The culture of police services is one in which, as survey after survey of police officers in countries such as the US and the UK has shown, there is a level of tolerance shown towards illegal conduct. A Queensland Crime and Misconduct Commission survey last year of recruits and first-year police officers in that state found that “over two-thirds of recruits and 80 per cent of [first year constables] agreed that an officer who reports misconduct is likely to be ‘given the cold shoulder’,” and that around half of both groups would not report “an officer who (hypothetically) steals confiscated drugs from police property and sells them on the street”.

The propensity of police to break the law, subvert the justice system and do it en masse is something that cannot be ignored by any government and community. Politicians, the media and the community cannot on the one hand preach zero tolerance on law-breaking without ensuring that the police who enforce laws are not serial serious law-breakers themselves. Unfortunately in at least two jurisdictions this appears to be the case today.

Perhaps Magistrate Clisdell should take some time out for a reality check and consider if the so called “Bourke defence” is a sham, or is it a genuine attempt by the ALS to do their job in the face of police racism and corruption and judicial indifference.