Tom Percy: Time for Cook Government to honour long-standing promise to create Judicial Commission

As someone who has for many years spent almost every working day in a Court of law, I am always hesitant to pass any judgement on the verdict of a Judge or jury unless I was present at the hearing of the evidence. If you don’t actively see the witnesses give their testimony, observe their demeanour, see the exhibits, including any CCTV of the actual events in question, you are at a serious disadvantage compared to the Judge or Magistrate. Forming an opinion of any case on the basis of a transcript, or worse, a newspaper report, is fraught with danger. The criticism this week of the findings of Perth Magistrate Robert Young by parties including the Premier, comes from a position of ignorance and is inherently unfair. Those critical of the Magistrate didn’t see or hear the evidence in question. He did. Whilst his critical remarks and assessment of the witnesses and their evidence may, on face value, be surprising, it would be a long bow to draw to say that they were unwarranted or offensive. I wasn’t there, so I don’t know how appropriate or otherwise his comments were. I suspect that neither the Premier or the Editor of this newspaper was there either. There is no universal presumption that the victim in every assault case is always blameless and above criticism. Nor is there any similar rule which protects assault victims from adverse judicial comment where it is warranted on the evidence. Any such presumption would be both misconceived and unfair. The second inherent unfairness in the criticism of the Magistrate is that he is not allowed to respond. It is not open to him to defend himself, to justify or explain publicly any of his findings. In the absence of any forum to investigate these types of complaint (such as a Judicial Commission, like those which exist in other States), any criticism (whether it be justified or not) of a Judge or Magistrate will remain forever unanswered. Judges and Magistrates in Western Australia are in the unenviable position that no complaint against them is ever independently investigated. They can never be cleared of unsubstantiated or wrongful allegations against them, which is inherently unjust. The sooner the Western Australia Government acts on its long-standing promise to create a Judicial Commission, the better.