A NSW magistrate accused of improper judicial conduct has been referred to Parliament after two experienced judges and a former police commissioner found complaints about her conduct were substantiated.
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The Judicial Commission held public hearings into the conduct of former Port Macquarie magistrate Dominique Burns in November last year after lawyers from Legal Aid made a formal complaint about her behaviour.
Ms Burns was accused of misusing her detention powers, denying procedural fairness, imposing sentences which exceeded the maximum penalty, and encouraging police prosecutors to lay further charges in 17 separate cases between June 2016 and February 2017.
In a report of inquiry revealed on Thursday, Justice Anthony Payne from the Court of Appeal, Judge Roger Dive from the Drug Court, and former NSW Police commissioner Ken Moroney upheld 16 of the 17 complaints made against Ms Burns.
They found the matter "could justify parliamentary consideration of the removal of the judicial officer from office".
"The matters proved against Magistrate Burns are serious instances of misbehaviour and reflect Magistrate Burns' present and likely future incapacity to exercise the functions of a judicial officer," the report, dated December 21, reads.
Magistrate Burns showed "misbehaviour and incapacity" by remanding people in custody of her own volition, despite having no power to do so, and by encouraging detention applications when none had been foreshadowed, the report found.
In one case, she failed to allow a defendant to make submissions on their own behalf before they were taken into custody.
The one complaint that was not upheld detailed an allegation that Ms Burns appeared to suggest she would give a defendant bail if he changed his plea to guilty. The Conduct Division found the case was "handled poorly", but the complaint was dismissed.
The report found Magistrate Burns' practice of determining bail for appeals in her office instead of in open court was "a manifest denial of procedural fairness".
It found some responses given by Magistrate Burns during her evidence to the hearing were "of concern", particularly where she justified aspects of her behaviour and said she would act the same way in the future.
A referral to Parliament, one possible outcome of a Judicial Commission Conduct Division, is made if it is decided a matter is serious enough for Parliament to consider the judicial officer's removal. Another potential outcome is referral to the Chief Magistrate, who can offer counselling or further training.
Ms Burns' barrister had called for the report to be sent to the Chief Magistrate.
Giving evidence during the hearing, Magistrate Burns did not deny she made mistakes but said they were due to her "crushing workload", which impacted her mental health.
She told the hearing her workload was so huge she knew she must be making mistakes, but didn't know what they were, and broke down several times as she gave evidence.
The report found Magistrate Burns' workload was not "unreasonable" or "crushing". It found her mental illness – which is "in remission" – was a contributing factor to her behaviour, but not the sole factor.
"We wish to make it clear that a judicial officer who experiences anxiety or depression remains capable of acting in accordance with proper standards of judicial behaviour and of discharging the duties of office," the report says.
"Nothing in this report should be understood as casting doubt upon that proposition."
Magistrate Burns went on sick leave in March 2017 and has been suspended from duty as a Local Court magistrate since June 2017.
