Legislative Assembly for the ACT: 2010 Week 11 Hansard (Tuesday, 19 October 2010) . . Page.. 4557 ..
Nevertheless, I remind members that I foreshadowed to the Assembly on 10 November last year that I had also thought it necessary to consider the possibility of amending the act to allow the judicial commission to complete its inquiries after Mr Cahill’s statutory retirement date, should it be unable to do so before then. Of course, these considerations were only in the preliminary stages when Mr Cahill tendered his immediate resignation on 17 November 2009. Mr Cahill’s resignation meant that he was no longer a judicial officer within the meaning of the Judicial Commissions Act, meaning the commission had no further role under the act. As I stated to the Assembly on that day, as the commission had not commenced its hearings, the government did not consider it appropriate to seek amendments to the act to provide for those hearings to proceed.
The conduct of the commission, although short lived, was independent of the criminal investigation conducted by the AFP and the decision of the Director of Public Prosecutions on whether to prosecute. The two processes, although arising from the same set of facts, involve different considerations, apply different standards and serve different purposes. The commission was to focus on the behaviour which was the subject of the complaint and determine on the balance of probabilities whether Mr Cahill was guilty of misconduct whilst holding judicial office sufficient to warrant removal from office. The commission was to look at establishing what conduct occurred and whether to categorise it as conduct that could amount to proved misconduct so as to warrant removal. Whether it amounted to a criminal offence was irrelevant to the determination of the issues faced by the commission and a matter which is properly for the Director of Public Prosecutions and the courts.
The criminal investigation was centred on an analysis of provisions of the Criminal Code 2002 and any evidence which may go to proving the commission of a criminal offence. Upon completion of that investigation by the AFP, it was for the Director of Public Prosecutions to determine in accordance with his prosecutorial guidelines whether all the elements of a criminal offence could be proved beyond a reasonable doubt.
Any finding of criminal guilt would be a relevant matter for a judicial commission, but misconduct does not rely upon the Criminal Code. Conversely, the findings of a judicial commission would not and could not impact upon the conduct of any criminal prosecution should that course have been pursued. Any action taken as a result of the commission’s findings would lie solely with the Legislative Assembly.
I would like to reiterate my confidence in the ACT judiciary. The conduct of magistrates Burns and Fryar was entirely appropriate in the circumstances. I was obliged to act on the material given to me. A judicial commission was properly appointed. It was unable to conclude its function, and the DPP considered the matter separately.
For the information of members, I table a copy of the documents constituting the complaint made to me by magistrates Karen Fryar and John Burns:
Former Chief Magistrate for the ACT—Complaint—Copy of various emails, including briefing material.