like a lawyer scorned by other lawyers.
Former Queensland Chief Magistrate Di Fingleton was charged and convicted of an offence pursuant to s 119B of the Criminal Code which prohibits unlawful retaliation against a witness. Ms Fingleton was first subject to a Crime and Misconduct Commission investigation, then a committal hearing and two criminal trials and an appeal to the Queensland Court of Appeal. Ultimately, she served a gaol sentence in relation to the offence.
In 2005, the High Court found in Fingleton v R [2005] HCA 34 that Ms Fingleton should not have been charged with an offence because of her immunity from prosecution as a magistrate pursuant to s 21A of the Magistrates Act and s 30 of the Code.
She is now suing the legal team who defended her after they failed to raise the issue at any time in the previous proceedings. She seeks damages for negligence and breach of contract from various high-profile QCs and firms.
Interesting to see how this one plays out…
10 Comments
I imagine that the magistrates and judges that convicted her are immune from prosecution too – yet their positions on the bench are untenable. Has anyone of them resigned? They don’t seem to know the law either.
I’ve never understood what this was about in the first place. Envy? Difficulties that people had in dealing with a woman who took control of a situation? Or did she indeed act in a bullying and nasty way and deserved everything she got? (Morally if not legally)
M-H – the main complainants were 2 other magistrates, one female and one male. Most of the issues with managing magistrates arises over their location. They can be placed anywhere in the State, and the jostling for local appointments is fierce.
Anyway, it all arose from 1 email she sent calling on a fellow managerial magistrate to publicly support her and not undermine her chiefishness. This guy then complained of undue interference with his independence, and after a cjc investigation, she was charged.
There is a grey area over whether the sending of the email (which was cleared as fine by her then lawyer – which in the end was good advice, but didn’t account for the dramas!) was covered by her immunity. It really did fall into a grey area (ie was it personal email or part of her management role), but should have been raised anyway. Especially in hindsight!!
The interesting sidenote is our CJ publicly said he thought she was covered by it but didn’t raise this with his fellow judges who heard the appeal at the time.
I don’t blame her for suing. You’d think these guys would look to every possible means of defence. The big issue is now whether the barristers have any cover from their cloak of litigation immunity. The solicitor is, as always, farked.
Sinclair, in a way, our entire system of appeal from judgment is predicated on an assumption that sometimes lower courts get it wrong. Or sometimes, they get it right, get overturned by a higher court, and then the original judgment is reinstated by an even higher court. Lawyers and others don’t really like to talk about this. It suggests that the law is not certain and knowable.
Also, to an extent, in an adversarial system, the court is reliant on counsel to bring all relevant arguments before it. The responsibility to raise such an argument is the party’s before it is the court’s. Obviously, it’s preferable if the court identifies arguments which may totally derail the proceeding…and often courts do identify such arguments…just not here…
M-H, I’ve never known either. Definitely a product of a clash of personalities and management styles. But I’m not sure who was really at fault.
Certainly, it’s not a good idea to threaten to sack someone who is going to give evidence against you in legal proceedings (it smacks of intimidation). Although she did run the e-mail regarding the threatened sacking past her legal advisers before she sent it (the original version was a good deal more aggressive). An interesting question is whether she should be immune from prosecution for such conduct?
Pete, yes, I wonder if the question of barrister’s immunity from negligence will be ventilated again? It survived the last attack. It has always seemed like the immunity was a case of ex-barristers protecting their own…
Yep, looks like ye old counsels’ immunity for court matters will get another run. This is one thing lawyerly thing that I’ve never been able to explain, and I’ve never tried. Plenty of people have dreadful misconceptions about lawyers (starting with the standard ‘how can you defend a murderer when you know he’s guilty?’), but the idea that barristers can dodge round suits is just, well, out there. Especially now it’s been booted in the UK and NZ.
LE – yes I understand that lower courts might make errors. This particular case is very worrying, and I wonder if there is more to it than meets the eye?
SL – floodgates is the usual defence of barristers’ immunity from suit. The theory goes that if every losing party could sue their counsel, it would automagically double the lawsuits before the Courts.
My experience is usually that the losing party will normally run from making any further noises about litigation and likely couldn’t afford to anyway!
Given the counsel were engaged during the investigation stage, it is quite possible they will cop a hit for that part of the matter (perhaps even advice given to her about likely defences and strategies), but not the trials and appeals.
Whatever happens, I don’t think they will be all that happy about having all this dirty laundry aired again.
I sense very quick & confidential settlements.
Sinclair, I’m intrigued – do you think that they “had it in for” this particular woman? It is pretty pathetic that no one raised the argument, I don’t deny that.
Nanu, yep, that’s what I’m thinking too.