Lawyers often get caught out by the law, but seldom does a chief magistrate spend six months jailed because a protective clause is not brought to light. The Di Fingleton story is “emotionally charged” and “essential reading”, Keith McEwan writes in his book review.
BOOK REVIEW: By Keith McEwan
Nothing to do with Justice: The Di Fingleton Story
When High Court Justice McHugh declared during a High Court appeal in June 2005, “It would be hard to imagine a stronger case of a miscarriage of justice”, he was referring to the sentencing and imprisonment of Diane Fingleton, who two years earlier, when she was the Chief Magistrate of Queensland, was jailed for six months for threatening another magistrate.
After the High Court`s unanimous decision to uphold her appeal, Fingleton continued to write her story which she started while in prison, so as to present a personal, yet balanced account of the horrendous events that threw her life into turmoil.
It is an emotionally-charged book, published in October 2010, six months after her retirement as a magistrate at Caloundra, Queensland where she served after being reinstated following the High Court decision. Readers will gain an insight into the life of an intelligent, well educated and determined woman who, with a love for the law, become a lawyer in 1984.
Growing up in a strict Catholic family with an abusive, alcoholic father and a down-trodden mother, Ms Fingleton overcame an unhappy childhood to dedicate herself to study and Labor politics, enrolling in a law degree in 1980. After 15 years in the legal profession she became a magistrate in 1995 , a deputy chief magistrate in 1998 and, at the age of 52 in 1999, the first female Chief Magistrate in Queensland. At the time, there were only five other female magistrates out of a total of 73 in the state.
As Chief Magistrate she set out to give expression to her key concerns about Aboriginal issues in the State, women`s rights and legal aid to those who could not afford representation. In particular, as she explains in chapter 10, she was acutely concerned at the history of the Indigenous peoples` harsh treatment at the hands of the courts and the disproportionate number of Indigenous people in gaols throughout Australia, so she readily supported the proposal by the Chief Magistrate of Victoria to hold reconciliation ceremonies in the courts.
In the first half of 2000, with a small group of magistrates interested in issues to do with Indigenous people, she decided it would be a good idea to hold ceremonies throughout Queensland. There was nothing secret about these plans and she was aware that some magistrates would have concerns. Ms Fingleton states frankly that her disastrous falling out with her colleagues began with the “sorry” statement expressing sincere sorrow and regret. Many were dead against it – some were concerned that their possible part in past injustices when they had been Clerks of the Court who had the power in deciding the very life of Aborigines – even of choosing names for Aboriginal children and who could live on or off Aboriginal communities.
While many magistrates believed they could treat Indigenous defendants equally, she had never heard them discuss that Indigenous Australians were at a considerable disadvantage when they came before the courts because of the destruction of their culture by the invasion of their country or by the stealing of their lands, as they were not interested in discussing these issues. She adds that she had heard at least one serving magistrate use the derogatory title of “boongs” or “coons” to describe Indigenous Australians.
Two years later, in September 2002, during a petty dispute regarding staff transfers out of Brisbane where most magistrates wanted to stay, Fingleton emailed the senior co-ordinating Magistrate Basil Gribbin to show cause why he should keep his job after he had issued an affidavit supporting a magistrate who was seeking to avoid being transferred. She felt that Gribbin had undermined her authority,
Gribbin counter-claimed that Fingleton was threatening him and called in the Criminal Misconduct Commission to investigate. This action led to the Chief Magistrate of Queensland appearing in the dock of the Supreme Court of Queensland to answer a criminal charge.
Many of Fingleton`s legal colleagues and members of the general public who were aware of these happenings were astounded that such a minor workplace dispute could lead to a possible gaol term for one of the protagonists. She was advised by lawyers that a jury would never convict her – a first trial resulted in a hung jury – but Fingleton was found guilty in a second trial in 2003 and sentenced to 12 months imprisonment, reduced on appeal to six months.
In her book, the shocked former Chief Magistrate attempts to comprehend what she faced: “What is this thing called a prison”? she asked herself, as she underwent a steep learning curve to adjust from an active, hard-working magistrate administering the law to a non-entity “doing time”. A day in prison is like a month elsewhere, as boredom is the norm, she says. However she was shown “amazing kindness by the other prisoners” as she slowly got to know them by adopting an open, friendly relationship with them.
Over time, she noted that the prison management emphasised deprivation and punishment as they exercised control. “Why did the process have to be so severe?” she wondered, querying whether there was any deterrent value in such harsh procedures. Like many other prisoners, she never received an induction into the prison rules, although if one offended against a rule you could be locked in your cell or have the offence go down as a black mark when parole was being considered.
Fingleton came to think that politicians, judges, magistrates, policemen and custodial officers should learn, through first-hand knowledge, about living a prison life. Even an overnight stay in a prison would give people a sense of what prison is like. These people send, or encourage judges to send, people to jail for longer and longer periods: they should understand what that means.
Noting that the great majority of the prison officers were polite, caring and had a good sense of humour, she said such an approach lifted the spirit of the unit; the opposite happened if the harsh, uncaring officers were on duty.
Without exception, no-one could understand why she was among them in prison and were surprised when her appeal was rejected midway through her term.
On release from prison in December 2003 after serving six months, Fingleton continued her fight for justice and to fulfil her desire to return to the magistrate`s Bench. Nine months would pass before the High Court sought submissions on her application that would take into account a section of the little known, revised Magistrate Act 1991 (s 21A) which appeared to raise an immunity from prosecution in relation to the Criminal Code of Queensland.
This extraordinary development meant that the High Court considered that Fingleton always had available to her an immunity from prosecution and that she should never have been prosecuted in the first place. It is almost inconceivable that such a vital piece of evidence was overlooked by the team of lawyers acting in her defence as well as by her prosecutors, who had a duty under Model Litigant Rules to disclose the information if they were aware of it.
In June 2005, in a unanimous ruling, the High Court upheld her appeal and stated she should never have been investigated, convicted or sentenced. Later in 2005, completely vindicated , Diane Fingleton returned to the Magistrates Court and served five years in the job she loved.
That she should never have faced trial, never have gone to jail, was devastating news to Fingleton and her family. Although not mentioned in her book, she received $475,000 compensation from the Queensland government. As well, she lodged a $2.3 million claim against those involved in her trial. It is understood that she accepted a much lesser amount so as to bring the dreadful saga in her life to an end.
While serving as magistrate in Caloundra, she was approached by a local elder of the Gubbi Gubbi people, Merle Tilbrook to establish a Murri (Indigenous) Court and was delighted to do so, taking great joy in seeing three flags on the three flagpoles one day – the Australian flag, the Aboriginal flag and the Torres Strait Islander flag. This episode of reconciliation was a most fitting endorsement of a fine magistrate who strived at all times to link the law she administered with justice to all.
Retiring in 2010, Diane Fingleton published the book that she had begun writing seven years earlier in prison. It is essential reading for all people interested in social justice and the safeguarding of civil liberties.
– review by Keith McEwan, 15 November 2010
Nothing to Do with Justice: The Di Fingleton Story, New Holland Publishers (Australia) Ltd, 2010.ISBN: 9781742570709, Pages: 256, Category: Softcover
Available widely for less than $30: one source is: http://shop.abc.net.au/browse/product.asp?productid=571203