Magistrate Found Guilty Of Historic Indecent Assault – Disreputing The Profession
A New South Wales District Court Jury has found Magistrate Graeme Curran guilty on seven counts and not guilty on two counts, of indecent assault, after two days of deliberations. The assaults of a teenage boy occurred in the 1980s. The victim was the son of Magistrate Curran’s friends, and they were thought to have a father, son relationship. One can see the sharp irony in this case: the fall of a man who had the power to decide the fate of others, now has had his fate decided by a panel in the very same building that he once practiced this power in. This brings many questions to one’s mind; if we look back at past cases Magistrate Curran has decided on – does what we know now influence what we think of those same decisions? What was Curran thinking whilst he was fulfilling his judicial duties, particularly where the cases tried involved sexual assault offences? One can only imagine. More importantly, are there any real legal repercussions for the past cases he has worked on? This is a vital discussion to be having in the legal professional sphere.
THE OFFENCE OF INDECENT ASSAULT
The offences of indecent assault and aggravated indecent assault were repealed on 1 December 2018 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018. The old provisions continue to apply, however, to offences committed before the date of repeal. New offences in its place are those of sexual touching, and aggravated sexual touching. The Magistrate was charged under the old offence due to the conduct occurring pre-repeal. The Crown must prove certain things occurred to satisfy beyond a reasonable doubt that the accused committed such an act, as was the case here. The element that makes an assault ‘indecent’ is the presence of a sexual connotation, by way of touching or threat of touching a portion of the victim’s body. If there is no obvious sexual connotation, “the Crown must show that the accused’s conduct was accompanied by an intention to obtain sexual gratification” (discussion on indecent assault and other repealed sections of the Act by the Criminal Trial Courts Bench Book). The Crown must establish that the accused committed an act of indecency on or in the presence of the victim. Indecent assault becomes aggravated indecent assault when it was committed in aggravating circumstances. These circumstances are: if the victim is under 16 years of age, if in company, where the victim is under the authority of the perpetrator, or where there is a serious intellectual or physical disability suffered by the victim. In the case of Magistrate Curran, the victim was under 16 at the time, and it is likely that the Crown alleged the victim was under Curran’s authority, as these instances of offending occurred whilst he was babysitting the victim.
Under the current legislation, this offence is covered by section 66DB of the Crimes Act; sexually touching a child between the ages of 10 and 16. This occurs when: a person intentionally sexually touches a child; or incites a child of those ages to sexually touch the person; or incites a child of those ages to touch another person; or incites another person to sexually touch a child of that age. The maximum penalty for this offence is 10 years imprisonment. The new law about sexual touching is discussed here.
Want to know about the different variables Courts consider when sentencing offenders? Read up on our recent article here. Information on the reforms on sentencing that took place last year can be found here.
WHAT PENALTIES DOES CURRAN FACE?
At present, Magistrate Curran is suspended from the Local Court Bench. The Chief Magistrate’s Office is unable to make comment about his position until these criminal proceedings are finalised, pending any appeal application the Magistrate might make. The Judicial Officers Act 1986 allows for the removal of a judicial officer on the grounds of proved misbehaviour or incapacity under section 41. Clearly, Magistrate Curran has proved misbehaviour by way of his conviction, and he most certainly will not have the capacity to serve as a Magistrate if he is incarcerated. Section 53 of the Constitution Act outlines the process for removing a judicial officer. Essentially, the Governor can seek his removal by addressing both Houses of Parliament.
The Magistrate is out on bail while he awaits his Sentence on 17 May 2019. The Crown applied to have the Magistrate remanded in custody, but he was given time to set his affairs in order before Sentence instead. The now-repealed charges Magistrate Curran faced carry maximum penalties of 5- and 10-years imprisonment for indecent assault and aggravated indecent assault, respectively. These are the sentence prospects he faces for his next court date. Given that he is 68 years of age, this is a significant length of time. Notably, he would have been only two years’ away from retirement from the Bench.
CONSEQUENCES TO THE LEGAL PROFESSION
The fact that a Judicial Officer of a Court of NSW has been found guilty of a crime, a crime committed against a child of all possible victims, is cause for grave concern for the state of the legal profession, and the public trust in our legal system. Judges in Australia are highly accountable for their actions and held to a higher moral standard than the ordinary reasonable person. Yet we have one who has committed atrocious acts against someone who was under his care and protection in his past. This is the highest form of bringing the legal profession into disrepute.
VIEWING THIS FROM A ‘BIGGER PICTURE’ CONTEXT
It is important to note that this is highly unusual and an unlikely occurrence. The Judicial Commission of NSW oversees receiving complaints against judicial officers. The statistics of complaints are relatively low compared to the amount of people living in NSW and engaging in our legal system. As one can see from the table in the link, most complaints between 2011 and 2016 were examined and dismissed. A small portion of complaints were referred to the head of the jurisdiction, or to the Conduct Division of the Commission. An even smaller portion of complaints on average were withdrawn. The complaints process appears thorough and broad enough to deal with an array of complaints. It provides for protection against frivolous claims, which can be dismissed under section 20 of the Judicial Officers Act. If there are merits to a complaint, there are different ways of dealing with it. If appropriate, the judicial officer will receive counsel from the head of their jurisdiction to assist them in making administrative arrangements to address issues that have been complained of. More serious complaints will be referred to the Conduct Division and ultimately lead to a judicial officer’s removal if justified.