Magistrate's misconduct: Dominique Burns fourth judicial officer referred to Parliament


This week, magistrate Dominique Burns joined a short and unenviable list of judicial officers who have been referred to NSW Parliament.

The former Newcastle family law barrister, who was appointed as a magistrate in February 2015, was the subject of a complaint to the Judicial Commission over her handling of 17 different cases in the Port Macquarie circuit between June 2016 and February 2017.

The complaint, which progressed to a public hearing last year, alleged Ms Burns misused her detention powers, denied procedural fairness, imposed sentences which exceeded the maximum penalty, and improperly encouraged police prosecutors to lay further charges.

Magistrate Dominique Burns.

Magistrate Dominique Burns.Credit:AAP

In a report of inquiry revealed by Parliament this week, 16 of the 17 complaints were upheld and Ms Burns was found to have engaged in "serious instances of misbehaviour".

She is due to face Parliament in the next session, some time after the NSW election in March.

The Judicial Commission conduct division – comprised of Justice Anthony Payne, Judge Roger Dive and former NSW police commissioner Ken Moroney – found Ms Burns had demonstrated misbehaviour and incapacity which could justify Parliamentary consideration of her removal. Their report was sent to the Governor, who sent it to the Attorney-General to be tabled in Parliament.

The report stressed that the referral does not indicate that the magistrate should be removed, just that the circumstances could justify her removal.

Magistrate Burns had argued she made mistakes in the context of a "crushing workload".

Magistrate Burns had argued she made mistakes in the context of a "crushing workload".Credit:AAP

Three previous judicial officers have been referred to NSW Parliament, each on the grounds of incapacity, but none have been successfully removed.

Magistrate Barry Wooldridge was referred in 1993, but retired soon after. Magistrate Ian McDougall was referred in 1998, however resigned before Parliament considered his case.

The closest Parliament has come to removal is in 1998, after Supreme Court Justice Vince Bruce was accused of an unreasonable delay in delivering judgments.

He was referred to Parliament, and after unsuccessfully attempting in the Court of Appeal to challenge this, he addressed Parliament in June 1998. The same month, a vote on his removal failed. He resigned eight months later, in February 1999.

A comprehensive 123-page report into Ms Burns' misconduct, prepared within a month of the public hearings last year, details the 16 complaints which were substantiated.

They paint a picture of magistrate who determined appeals bail in her chambers multiple times; who encouraged police in three cases to take steps to lay further charges; who imposed sentences on four occasions which exceeded the maximum penalty; and who misused her detention powers in four cases.

The report detailed how one man, Mr A, was ordered into custody for driving offences for three hours in August 2016 without getting an opportunity to make submissions on his behalf. Another man, Mr B, aged 18, was left "frightened, teary and shaken" when he was ordered into the court cells to "give him a bit of a scare".

The report said that Ms Burns told the Judicial Commission hearing she believed her actions in those cases were justified, because the men were "in the custody of the court", but the report found her actions were a "serious abuse of power".

"[T]he judicial officer ... displays a troubling and continuing lack of insight into, and understanding of, the nature and scope of her powers to detain individuals in custody of her own motion, particularly without any notice," the report found. "The Bail Act is not a tool to frighten people or punish offenders."

Other complaints which were upheld involved multiple incidents of misconduct against one person.

Mr G, who pleaded guilty in December 2016 to stealing a poker machine payout ticket worth $167.39, had his bail revoked and was led away "sobbing" before his Legal Aid lawyer had a chance to make any submissions. He was due to spend more than a month in custody ahead of his sentence, but he was released on December 21 after the magistrate acknowledged her previous decision was "in error".

When Mr G was sentenced to imprisonment in January 2017, Legal Aid applied for bail pending a District Court appeal but it was refused in chambers.

In another case, Mr I pleaded guilty to mid-range drink driving in February 2017. Magistrate Burns excused herself from the case before he was sentenced, however on the bench sheet – a document where magistrates record their decisions – she had already recorded a conviction, decided a pre-sentence report was not necessary, and had indicated Mr I would get the maximum gaol sentence.

"All these steps were taken before hearing submissions on sentence," the report found.

"The judicial officer formed a definite view about the outcome of the case before hearing it."

In two days of evidence at the hearing, Magistrate Burns broke down repeatedly as she acknowledged she made mistakes she did not intend. She said a "crushing workload", which on some days gave her roughly 45 seconds to deal with each charge, severely impacted her mental health.

"I simply could not get through the lists without making mistakes," Ms Burns said. "I was aware that I was extremely stressed and very anxious."

The conduct division found that despite this evidence about workload, Ms Burns' most serious misconduct – including improperly detaining defendants and recommending further charges – did not save her time and actually prolonged her court days.

It found her workload was not "unreasonable" or "crushing".

Ms Burns has been suspended from duty since June 2017.