ANOTHER INCOMPETENT JUDGE

Western Australia's Supreme Court Chief Justice aborted a trial yesterday after making a string of factual and legal mistakes in his summing-up to a jury, including confusing dates relating to the alleged murder. The embarrassing decision to discharge the jury comes 14 months after judge David Malcolm was criticised by the High Court for making basic factual errors in an appeal judgment. In an interview two months later, Justice Malcolm - one of the nation's most respected jurists - said mistakes were a symptom of undue pressures on judges. The bungle will fuel the debate over the competence of judicial officers and the mechanisms for reviewing their performances.

Late last year, NSW Supreme Court judge Jeff Shaw, 55, resigned after admitting he had an alcohol problem. NSW District Court judge Ian Dodd had complaints against him upheld after allegedly falling asleep at the bench and was later revealed to have been suffering from chronic sleep apnoea. In Tasmania, Family Court judge Michael Hannon came under fire for taking up to four years to deliver decisions.

Justice Malcolm yesterday discharged the jury near the conclusion of the murder trial after lawyers raised concerns he had presented a muddled version of facts. Their concerns also included Justice Malcolm making incorrect statements about the sequence of events leading up to the alleged murder, an inadequate direction on the alternative verdict of manslaughter available to the jury and misleading statements about the prosecution case. It was also submitted that at one stage of the directions, Justice Malcolm said the words "not guilty" of murder when he should have said "guilty".

Defence counsel Richard Utting submitted that a re-direction to the jurors could not remedy the errors. "Your honour, I rise with reluctance - I don't think a redirection is going to cure the problem," Mr Utting said. "I think there is a danger it will simply further confuse the jury. "I have done a lot of trials and I just think this one has run off the rails and I don't think it can be corrected. "It is a step I take with reluctance for my client, who has now been in custody for some 14 months, but I feel that it can't go further."

Mr Utting's client, 27-year-old Bradley James Mawdesley, is alleged to have killed Dale Dunstan, a friend of his ex-partner, by running him over with a car in March last year.

Justice Malcolm started delivering his summation to the jury on Monday after three days of evidence, but Mr Utting and prosecutor Dave Dempster raised multiple concerns about his directions the following day. Justice Malcolm - a 67-year-old Rhodes scholar and chief justice of the Supreme Court since 1988 - immediately recognised it would be difficult to redirect the jury given the totality of the concerns raised. Yesterday, Mr Dempster acknowledged Justice Malcolm's charge to the jury contained mistakes but said the errors could be remedied by giving fresh directions. Justice Malcolm conceded it was a serious step to discharge a jury at such a late stage in the trial, but said he gave weight to the submissions of Mr Utting, a senior criminal lawyer. "In order that there be no shadow of a doubt over the fairness of the trial, the proper course of conduct, notwithstanding the prejudice to your client, would be to discharge the jury," Justice Malcolm said.

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