ORAL HISTORIES INTERVIEW
Honourable Kevin Duggan AM QC RFD
By John Goldberg on 23 June 2014
I am interviewing the Honourable Kevin Duggan, AM QC RFD for the Law Society Historical Records Preservation Project. I've been given an outline Kevin, of some things to go through but I've also prepared my own notes and I will be taking you through a series of things and some of the topics, you might find possibly a little bit sensitive, in which case you have complete discretion, you can say "I'm not going to go into that" or you might say "Well I'll answer that but I'll need to review the transcript and in the interim its embargoed" but we'll see how we go with some of those things.
Now, you were born in Adelaide were you?
And that was back in July, 1941?
That's right. In the Hutt Street private hospital. I live a stone's throw from that hospital now, so I haven't moved very far.
Were any members of your family in the legal profession?
No. Interestingly enough, since I started in the profession, a number of members of my immediate and not-so-immediate family, have become lawyers. But certainly neither of my parents were involved in the law, in fact I don't think they had ever been in a court room before I started in practice, so we had no connection, and not even on the wrong side of the law to my knowledge.
Well what a relief. You went to Rostrevor College and I think you were a boarder there?
Yes, I was for 11 years.
Why did you board when you lived relatively nearby?
The circumstances were quite unusual. My mother and father were alive then and I was enrolled at Rostrevor College, as a day scholar, because we lived over at Millswood. My mother was a nursing sister and the college sent a note around saying their then matron had retired and they wanted to know if there was a parent who could come in and be the matron for just a few months to tide them over until they got a permanent matron. It was quite common in those days for there to be an outbreak of mumps , measles etc, in a boarding school and Rostrevor was the biggest boarding school in Adelaide.
They had one of these outbreaks and so she agreed to be the matron for a few months and she stayed for something like 30 years as the matron. Her responsibilities extended beyond the care of the health of the boys, because eventually she became the manager of the house, ordering food and everything that has to be done for over 200 boys. So that meant that we had to live at the College. We had accommodation there but she thought that the other boys would get a bit jealous of me if I was there with my mother and father and was being mollycoddled and that it was appropriate that during term time I should live in the boarding school and so I did. I spent all the time there in the boarding school. I did have some privileges: one of them was that I was allowed to keep a horse at the College.
Well, very interesting. So you had both your parents at the school, but you were a boarder.
And so during the week, you were just treated like all the other boarders?
Exactly and on the weekends.
Really? And obviously Rostrevor then as now, it was run by the Christian Brothers.
And would it be fair to say that both the Christian Brothers and the Jesuits were very keen on their suitably able scholars going into the law and medicine?
I don't think that they had a particular preference for the law or medicine, but of course they wanted their students to do well. I must say St Ignatius seems to have produced an extraordinary crop of lawyers from John Doyle's time onwards. But I do remember that when I went to law school in 1960, there were five Rostrevor boys in First Year.
Do you remember how many were from St Ignatius?
I don't think we had any from St Ignatius during that year. They had some golden years a little later with John Doyle, Paul Rofe, John Mansfield, Tim Anderson and others who all went to St Ignatius.
Yes. Probably my time, because certainly when I was at law school, there were quite a few St Ignatians.
Yes. There has always been an Irish/Australian tradition in the law. Well before I started law Christian Brothers College Wakefield Street produced some exceptional lawyers. Harry Alderman went to CBC, Jim Brazel, who became a Silk and later a judge of the Supreme Court, went there. There was also Reg Kearnan QC who was later the Crown Solicitor. It was often said that Sir Harry Alderman was offered a job on the High Court and that he knocked it back. But there wasn't much hope of a Catholic getting on the Supreme Court until the first, who was Jim Brazel.
Really? So there was obviously an earlier period of discrimination?
I don't know what it was actually, it was unusual. It's just a fact that that was the case. And it may be that they thought that no one was suitable, I'm not complaining about it, but it is an interesting fact. It was quite often spoken about in the time that I went into the profession.
How did you get on at boarding school? Did you take to it like a duck to water?
I knew nothing else, so that was my life. I really enjoyed sport and I liked the academic work. I had an unusual academic career in that in the primary school, I thought I did fairly well but I trailed off in the secondary school. Perhaps I can blame it on the study facilities in boarding school. You would go up to the night study particularly in cold weather, and it was a classroom so you had to go back to your classroom and there would be 50 other boarders who were there and it really wasn't conducive to study. I have to confess that I didn't study very hard at all. When I got to university, it was different; I was able to do things on my own and I really relished the study and of course I was studying something that I was very interested in by that stage.
Interestingly it was my experience at university, obviously Adelaide University Law School for some five or six years later, that suddenly people from private school who had been, I wouldn't say mollycoddled, but extensively looked after and well tutored and organised, found the freedom of university very difficult to cope with.
Yes, I've heard that said before.
The ones that got on better are the ones that pretty well got there by their own devices.
Yes, I think there's some truth in that.
And the Christian Brothers had a reputation for being very strict disciplinarians?
They were very strict disciplinarians. Many had come from Ireland in the early days and they had come up in a tough environment. They taught in circumstances that were quite Spartan. I mean we had some magnificent men there as teachers, but there was that reputation to which you have referred and I think I can understand why they earned it.
It might have been that the people that were left with the more lasting bad feelings about their education by Christian Brothers, were the ones that were for one reason or another, fairly poor students and maybe copped the brunt of it?
Perhaps so. I mean I never thought "They should have done better with me" or anything like that. If I wanted to study I could have studied and we had some magnificent teachers as we got older. They were not all Christian Brothers. One of them who led me into the law was Mr E G Kelly. He had been an Oxford Don and he was our English master. He was a superb teacher who gave us a real thirst for learning so it was a bit of a mixed bag.
Yes. And so you consciously chose the law as a vocation?
Yes. I had some difficulty in making a choice and I often think what a lottery it is when young people are still at school and they are deciding what they would like to be and fashioning their career paths. There must be some terrible mistakes made in that respect; decisions must be made by pure chance in many cases. During school holidays I used to be a copy boy at “The News” newspaper. I was fascinated by life at the newspaper. It was all go and you knew the news as soon as it happened. Then there was the pressure to get out, I think it was about three or four editions of “The News” each day. I was mesmerised by this life. I thought I wouldn't mind doing journalism and then I spoke to my parents and they said "No, you stay at school". Mr Hussey, who was in charge of the copy boys, there were ten of them, said to me eventually “You have to make up your mind whether you want to become a cadet now or whether you want to go back to school" and I said "Mr Hussey, my parents said they want me to go back to study and finish my education" He said "Well in that case lad, I'm afraid we'll have to let you go”. I was so naive that I didn't know what that meant and it wasn't until I got home that my father said to me “You have just got the sack”. So that was the end of that. But I mentioned Mr Kelly just a while ago and he said to me “What are you going to do when you leave school?” I said “Well I was thinking of journalism or perhaps economics” and he said “You’ve usually got a fair bit to say Duggan, I think you might be a lawyer. I recommend you think about that”. It was like a conversion on the way to Damascus. Overnight I got the syllabus for the University that we had in the school library and I could see these strange subjects like “The Law of Torts” and “Equity”. I thought "They've got a ring about them" and so I spoke to a few old scholars who were lawyers at that time. I got very keen on the idea and that's what happened.
No regrets whatsoever and I really enjoyed my time at the Law School. We had some brilliant academics teaching us. Colin Howard from England taught us Criminal Law, Rupert Cross came over at one stage and delivered a series of lectures on Evidence. We had excellent academics, but in addition to that we had a very good mix of practitioners who were prepared to come down to the Law School and lecture. Roma Mitchell lectured us in Family Law, John Bray in Roman law, Andrew Wells, in Property, Eb Scarfe and George Walters in the Law of Evidence and Procedure, Howard Zelling in Constitutional Law and Chris Legoe who delivered a series of lectures on Defamation. These were practitioners who had been working in the real world during the day and then coming down and lecturing to us. They illustrated various aspects of our subjects with cases that they were involved in or had been involved in, and that really did bring the law to life for us. It was the law in practice which we didn't know much about, but about which we were to learn a good deal.
Yes. And is it your perspective that basic legal education has changed much since the time that you went to law school?
Well it has changed a great deal. When I went to Law School, it was the same as it had been for many years, although the casebook method of teaching was starting to come in. My three boys eventually did law and naturally I discussed their courses with them. I don't know that I was a great deal of help to them actually. A number of the areas they asked about seemed to me to be quite different. I am amazed at the number (and I don't want to decry the ability of the young people) I am amazed at the number of credits and distinctions that people get these days. You see them on applications for associates jobs and they're absolutely extraordinary. A distinction was something that was really special in earlier days. I don't know whether the difference is that they're allowed to do open book examinations or whether they are just smarter students! We had to learn by rote.
So it's a memory test.
Exactly and that probably wasn't a good thing either. I have enjoyed lecturing over the years I have been in practice and since I have retired. It is most enjoyable being able to relate to the young people. They keep you honest . In my time, we spoke when we were spoken to, but they wear their hearts on their sleeves a lot now and I enjoy that. I think they've become much more extroverted and that is a good thing. I realise that they enjoy the fact that you are able to illustrate principles with cases and so on, just as I was able to appreciate it when I listened to practitioners lecturing to us.
Q Sure. It’s diverting a little bit, but do you have the perception that society is a lot more equal now than it was 40 or more years ago? And that back then, if you were a very junior member of the profession, you wouldn't have the temerity to speak to a senior lawyer or a judge because they were so far above your station?
I think we were on the cusp of that. I think it was just changing. Furthermore judges were starting to mix more in the general community. I mean there was a time when the Supreme Court judges would go down to their club for lunch and there would be a special table at the club and only judges sat at it. It was because of this concern that they might hear things about cases that they were in or that members of the club would become litigants. It went to the extent that down on circuit for example at Mt Gambier, the judge would stay at Gens Hotel and a partition, a curtain partition, would be put up around the judge’s table in the corner of the dining room. It was not the done thing for judges to go into a hotel bar and have a drink. John Bray helped to change this attitude. He would go down every Saturday morning to the Sturt Arcade Hotel and have a drink with a literary-minded group. When he became Chief Justice he advised the profession that he was going to continue this habit and not desert his companions. I think that was good for the law!
No. I think it would be fair to say that John Bray put a very human face on the judiciary.
He did. But in a way, he was not a terribly worldly sort of person. As you know, he was a great classics scholar and as Chief Justice, he used to get invited down to Keswick Barracks to Officers’ dinners and it was a great strain on some of these officers to keep the conversation going during the dinner. Of course the Services are well known for entertaining people and making sure that they feel welcome in the Mess, but this was a huge hurdle with John. I remember on one occasion, just before he retired, my wife Rosemary was speaking to him and they were talking about what he might do in his retirement and she said "Well John, I don't suppose you would like to do a bit of babysitting now that you've reached retirement.”
Yes. I imagine that wasn't on his to-do list.
And so you got your articles with Aldermen Clark, RJ Clark?
That's right. Yes.
So that was in 1963.
Now this was more or less a commercial firm so that probably assumed a slightly forced direction to your ultimate career path.
It might have. I think it's right to say it was predominantly a commercial firm. Harry Aldermen QC practised in the firm, because in those days there wasn't a separate bar, but he died just before I went into the firm. I had been accepted to go in to the firm as an articled clerk and I knew his son Patrick, who was a junior partner. It was a prestige firm at that time. A few years before I went there, Jim Brazel QC was the second partner. The firm was then called Alderman, Brazel, Clark & Ligertwood .
Harry Alderman was an all-rounder. He could go into a murder trial one week and some heavy commercial matter or constitutional case the next week. He was an extraordinary barrister and was the President of the Law Council of Australia. The profession were convinced he could walk on water. Apparently the John Bray group were present one Saturday at the Sturt Arcade Hotel and Clyde Cameron said to Tacky Hannan “Tacky, I read somewhere that a layperson can become the Pope" and Tacky said “Well it's never happened unless you go back to Peter's time when he was a fisherman and I suppose you could say he was a layman ". But he said "I'll do some research on it and I'll let you know next week". On the following Saturday he said to the group “Well I’ve got the answer. You're right, a lay person can become the Pope but for God’s sake don't tell Harry Alderman”.
Robert Clark was my Principal and, along with Jack Astley and Bob Irwin, regarded as among the leading commercial lawyers in Adelaide. He and Harry Alderman acted for Sir Keith Murdoch and the News group. When Rupert Murdoch took over he made Robert Clark a director of News Limited. Interestingly enough when Harry Alderman was acting for the Murdochs he came into Clark’s room after a conference with Rupert and said “Young Mr Rupert, he wants to build empires on concrete which never sets”. That prophetic remark was made long before Rupert Murdoch commenced his takeover of the media world, but Harry Alderman could see that young Mr Rupert was going places. He was a very good judge of human nature.
Well ultimately I think Rupert Murdoch has proved to be Australia's most successful businessman in history.
Precisely. They used to say that some of the English barons, press barons, were people whose reputations could never ever be equalled, but I think Murdoch ended up owning more newspapers than they did.
Yes. Well I think his media empires had a much wider spread too because he – I don't know how many hundreds of millions of people he would communicate with daily.
But the previous press barons would probably be only a small catch.
I think one of the most famous ones was Lord Northcliffe and in his time he owned more newspapers than any other person had done. Northcliffe and Keith Murdoch were exceptionally good friends and it is said that Keith Murdoch modelled himself on Northcliffe. However it seems that it was left to Rupert Murdoch to emulate the English baron in ownership of newspapers.
Tell me about the practices of the law and their operating procedures because we're talking about an era where modern technology was non-existent.
Absolutely. Some of the partners would have their secretaries located in offices adjacent to their own for example Neil Ligertwood and Phil Rice both of whom later took silk. But then there was the typing pool and as articled clerks we spent a fair bit of time taking material in to the typing pool and you would hear a burst of swearing when a typist made a mistake. If you made a mistake on the old typewriters you had to wrestle with a solution called whiteout and three pieces of paper separated by carbon sheets to correct it. No simple tapping of the delete button.
And then of course copies of material would be done with a Gestetner and people would get ink all over their hands and so on. The other thing was probably the job the staff hated most at Alderman’s, and that was putting a seal on a document because the firm insisted on doing things the traditional way. The candle would be brought out and the red wax would be melted and then the seal would go on, but not before a blue ribbon had been put in place on the document. Disaster occurred when some of the wax went over the document that they were preparing and they had to start again. Bob Clark’s concession to progress was to change the tape we wrapped around our files from red to pink. He thought our clients might resent red tape.
The new technology has had a considerable effect on the courts. I take as one example the writing of judgements. I wonder whether word processing is one of the contributing factors to the length of reasons. If you look back at the judgements up to about 1960 or 1970, they were usually very short and in this they followed the English pattern. There was a discipline in using plain and simple language which succinctly conveyed what had to be said.
There are other reasons for longer judgements which have more to do with judicial culture. It seems that if you do not write at length the reasons might appear to lack gravitas.
Coming back to those old days though, can we talk about the style of practice? Because people communicated with each other by letter or telephone.
And I think if you received a letter, there was an expectation that whoever sent you the letter, would get a reply within one or two weeks.
Exactly. And bear this in mind, that the profession was much smaller and if you got a name for being tardy in that respect, everybody in Adelaide knew about it. A census of the profession taken in 1958 revealed that there were 309 practitioners practising in the State. About a decade or so later, there had been an addition of only about 11 practitioners. So for better or worse your work habits became known fairly quickly. I can remember Derek Bollen writing to a practitioner on one occasion and after Derek had written about four or five letters without getting any reply his last letter consisted of one word, “PLEASE”.
The increasing size of the profession also presents fresh challenges in maintaining the standard of ethics and proper practice in dealings between practitioners as well as in the conduct of counsel before the courts. And, you know, when you go into the profession, your good reputation is the one thing that you must maintain and we were always very fearful lest we do anything that might tarnish that reputation. In a smaller profession, it was on our minds all the time. I don't know about the situation now. I think we've got some brilliant young people in the profession. On the other hand, I don't think that there's perhaps the intensity of training and assistance in relation to things, such as court room etiquette. I mean we would not think of coming late for Court, that would be a serious offence.
I found when I got on the Bench, that every now and again you would find people strolling in to Court late. If counsel are late the appropriate is to wait for a convenient time and then say to the Judge "I apologise” and then give an explanation. But sometimes you would find somebody just walk in take a seat at the bar table and not say anything. I spoke about it to Ted Mulligan in relation to a particular incident on one occasion. He said "Well did you say anything?" And I said "Actually Ted, I don't think I did on that occasion, I just went on" and he said "You should. The profession is not going to learn and the younger people are not going to learn unless you say something, however unpleasant it might be".
These are matters of courtroom courtesy. The other and more important issue is the question of ethics. One very good thing which I think has happened as far as ethics is concerned, is the implementation of national uniform ethics codes for solicitors and barristers. I think that is excellent. As you know, our profession has a poor reputation for uniformity.
As a matter of fact, when the Law Council of Australia, after consultation with each of the States, promulgated national ethical rules, South Australia was the very first jurisdiction to adopt them.
Well that's encouraging, isn't it?
Yes. So the profession back when you started was small enough that just about everyone knew everybody.
And particularly the younger people knew all the senior people, a bit like a school, you always remember those who are above you.
And so that allowed it to be, I suppose, particularly collegiate.
Our social contact was with a smaller group of people and everybody knew each other. Also one of the good features was that, as articled clerks, we were expected to do rounds, and so you got to meet officers in various public departments which were relevant to legal practice such as at the companies office, stamp duties or the Lands Titles Office. You also delivered documents to other legal firms and got to know the practitioners in those firms. I can remember having to deliver an affidavit on one occasion to Sam Jacobs QC and he was in his office with his feet up on the desk looking very relaxed. He said "Sit down" and he asked me what I was doing, that sort of thing and that is a very flattering thing for a young person to have a senior member of the profession do that. And then also, when you went on your rounds, you met the other articled clerks so that was one thing that I can remember about early practice, there was this collegiality.
Do you remember what you got paid as an articled clerk?
Yes. I can tell you exactly what I got paid. We were a bit spoilt at Alderman Clark because they only took one articled clerk per year and so in order, Chris Lee and then Dean Jarvis and then myself had been articled clerks and stayed on for a while. And that meant that there were two articled clerks at any one time because you did two years of articles so you had a senior and junior clerk. When you started off as the junior, you had a desk which looked like an ironing board across the bays in the files storage room and that was your office. Then you got a better room as you went up in the world. So when I started I got four pounds a week in my first year and six pounds, 10 shillings in my second year. Bob Clark said to me, when he told me what I was going to get a week, that when he did his articles, his father had to pay for the articles which was usual.
So you didn’t get paid much but I think you were brought up knowing that in a firm like Aldermans, you got an excellent practical legal education and that was just as important as the education you got at the Law School.
And were you circulated around the firm?
Yes. Bob Clark was actually my principal so at least formally he had first call on me and he did a lot of company work. I remember the Uniform Companies Act came in at that stage and we had to do a lot of explaining to clients on the effect of the new uniform laws.
I think that was 1962?
Yes, that would have been about right. And then he drafted a lot of memoranda and articles of association and that sort of thing which was pretty boring work. He also did a fair bit of Estate work and we had to keep the Trust companies we acted for happy so their work had to be done quickly and carefully. It wasn't my cup of tea I'm afraid. What I wanted to do was get into Court. I had always wanted to do Court work and so my heroes were Neil Ligertwood and Phil Rice. Whenever I could, I carried their bags to Court and quite often Phil Rice would say to me "Have you squared this with Bob Clark, coming up on this case?” and I’d take a deep breath and say "Yes" whether or not I could vouch for the truth of that on every occasion. But anyway, that's what I wanted to do and so Phil was such a wonderful person with young people, and he'd explain to you what he was doing during the case and get you in on the inner circle so that you were involved in the tactics.
Q Did you help with legal research as an articled clerk?
A Yes. I had a funny experience with Bob Clark on one occasion. I was doing some research for him and I came back and I said "Well this is what I've found" and I said "I looked in the legal dictionary, Stroud” and read it out to him. He said “Stroud? You mean Strood?” and I said “Sorry sir, I didn't realise that was the pronunciation". It wouldn't have been a month later when he got me to do some other research and I came back and said “And here’s something Sir, it's in Strood”. He said “You mean Stroud”. Whether he was having me on or not I don't know. He was a master of the English language, I think he was probably having me on.
Q Of course back then, if you wanted to even just look up a provision in a statute, particularly a large statute, it might have been amended 20 or 30 times.
Q It was a huge job just to try and absolutely trace the law, wasn’t it?
A Yes, that’s right. Every now and again they might come out with some frequently used Acts in a consolidation, but that would only last five minutes, it would soon be amended and so you are right. I think one of the best websites now is AustLII. I suppose it might have its detractors, but to be able to go into AustLII and find out precisely what the law is in any State, and in the United Kingdom in a fully up-to-date form, is magnificent.
Q Yes, incredible. I think it would be fair to say that it's only people that actually worked in the era where that didn't exist, that can actually appreciate what a marvellous change it was.
A Yes, exactly. When it comes to case law, I think we are perhaps over spoilt and we sometimes research too much and don't get to the essence quickly enough. You realise that a whole lot of judges are saying exactly the same thing and it's very easy when you are counsel, for example, to press a button and produce a very impressive looking list of authorities which causes the tipstaves to pull their hair out when they realise that they have to bring all these books into court and only a few of them are referred to. This overkill also applies in cases where mounds of photostated cases are produced by counsel, the copying being paid for by the client. Then again there is a difficulty sometimes with judges over-egging reasons by referring to multiple cases all saying the same thing.
Q Yes. Apart from the problem with consolidating statutes so that you actually knew what the current state of the Act was, there were also issues with even looking after Supreme Court Rules because they had a consolidation of the English cases, but they had no consolidation of the Australian cases.
A No, they didn't.
Q After your period of articles, you managed to get yourself an associateship with Sir Edward McTiernan of the High Court?
Q Was that a bit unusual back then to become an associate after completing your articles, or was that quite normal?
A It wasn't unusual, In fact there was a danger at one stage of associates becoming permanent associates. At one stage the Chief Justice Sir Mellis Napier had an associate for five or six years, it was the same associate and people in the profession were saying “Why doesn't he get out of the profession and start practising the law?", because it was a pretty cushy job in a way. You had the luxury of being in the Court and mixing with the judges and going to all the dinners and celebratory events. When I was an associate, I think there might have been only about three other associates who were actually admitted. The associates who had not been admitted used to get a bit jealous, because we used to wear a wig in Court, and they thought that we were trying to be a cut above them by wearing a wig in the High Court as an associate.
It was unusual for the High Court to appoint a South Australian associate. Most of the judges came from New South Wales and Victoria. In fact Bruce Debelle was the first person in South Australia who was appointed a Judge's associate and he was appointed to Sir Victor Windeyer. I was the second and the first person I went to speak to about it was Bruce Debelle, in order to get a rundown on it and whether it was appropriate to take the job on. Being offered the position came like a bolt out of the blue. After being admitted to the bar I was working at Aldermans as a salaried solicitor. One day I got a call from the secretary to George Walters who was the Master of the Supreme Court and later to become a judge of that court. The secretary said "The Master wants to see you in chambers". I thought "I've done something really wrong”. I started to imagine all sorts of things. I made my way slowly up to the court. When I arrived in his chambers he said “Sir Edward McTiernan is a good friend of mine. He has just come back from an overseas holiday, and he thinks it's about time that a South Australian was made his associate. Would you like to do it? You would have to live in Sydney where the Judge resides. What do you think?"
I walked on air as I made my way back to Alderman Clark, but something which was symptomatic of the profession of that era occurred. I went in to tell Bob Clark, thinking he would be quite pleased. He said "Well Kevin you can do that if you want to but you don't know how long you'll be away. People forget you very quickly" and he said "You've got to wonder whether this has not long term ramifications for your career in South Australia " I was absolutely downcast. It was something about the profession at that time. If you went into a firm, you were quite often there for life, none of this firm jumping or anything of that nature which seems to occur these days. You thought you were lucky enough to get into a good firm and you fought like mad to stay there. I thought that must be what he is on about. It is obvious that he had my interests at heart and wanted to advise me accordingly. However, I thought "I'll get a second opinion" and I went in next door to Neil Ligertwood . He had his feet up on the table as he usually did in his very relaxed fashion and I told him about the offer. He said "You're joking?" And I said "No, I'm not". He said "Grab it” and I said “Mr Clark has just told me that I should stay put”. Neil Ligertwood said “The experience will be absolutely magnificent. Go straight away”. So I did and I certainly didn't regret it.
One of the great advantages was that I would be able to see the top counsel in Australia appearing before the highest court. The High Court was peripatetic in those days. The Canberra headquarters was yet to be built. So we travelled to each State and usually the profession would have a dinner when the High Court arrived. As associates we got to know all the young people in the profession in every State and many of them became lasting friends.
Sir Edward was pretty old by the time that I worked for him. He was born in 1892 so he would have been about 78 I think at the time I became his associate, there being no age limit for retirement.
Q This is back in the era where they were appointed for life?
A For life. I have always been thankful that there is a 70 year limit in this State. I do not think I would have gone on if I didn't have to go because, you know, it's tempting to stay on in a job that has its challenges , but there are other things in life and I have really enjoyed retirement. However Sir Edward was determined to stay on. The profession would run a book on when he was going to retire. The tipping was that he would do so when a Labour government was elected but when the Labour government did eventually come in, he bought a new gown putting an end to all the rumours.
He was appointed in 1930 under quite controversial circumstances. The Premier and the Attorney-General were overseas at the time and caucus decided to appoint McTiernan and H V Evatt. McTiernan was very young at that stage. He had been the Attorney General to the colourful Jack Lang in the New South Wales government and then became the Federal member for Parkes.
Q That would have been interesting.
A Absolutely. This wasn't long after Jack Lang had planned to perform the official opening of the Sydney Harbour Bridge and Captain de Groot had the temerity to ride his horse up and cut the ribbon in protest against Lang. I remember seeing Jack Lang on a number of occasions in filmed interviews and he had this raucous voice.
One of the great things about being McTiernan's associate was to get him reminiscing about his experiences. He had been a judge for so long and he had sat on all the big constitutional cases including the Section 92 cases. He had hundreds of stories about them.
One of the stories about Jack Lang was that he was never comfortable using the telephone. Sir Edward told me that his offices in Sydney were two blocks away from Jack Lang's and Lang’s staff would have to dial the number for him. Lang thought that he had to roar down into the handpiece and, having a very loud voice, his roar was much louder than anybody else's. Eventually, Sir Edward said to him gently one day "You know Jack, I know how we could save the government a lot of money" and Jack said "How's that Edward?" And Sir Edward said "Well it's on these telephone calls that we have. If I went over and lifted up my window and you lifted up your window, I reckon I could hear you without the need for a telephone".
Sir Garfield Barwick had his own fund of stories. He was very good to associates and as we did at school to relieve the monotony of a lesson by asking the teacher what he did during the war, the tactic with Sir Garfield was to say "Sir, I just want to ask you a question about the Bank Nationalisation Case” and of course you would get the whole story of the trip to the Privy Council.
Barwick’s performance during that hearing is legendary. He had to explain to the Privy Counsel the nature of the Australian Constitution, the nature of the Australian banking system and how the two intertwined in the circumstances of the case. Lord Monckton, then Sir Walter Monckton, led for a number of the banks and he said after the case "I have never heard oratory like that which came from Barwick in all my years at the Bar". David Marr tells the story in his biography of Barwick. For an Englishman to heap such praise on a member of the Australian Bar was quite something.
Q I might just – resume recording. Who were the Judges on the High Court that you had contact with during this era?
A Well I have referred to Sir Garfield Barwick who was appointed after Sir Owen Dixon. They were quite different. Barwick knew Canberra. He had been attorney- general and also External Affairs Minister and he was quite a good administrator. He always remarked “When I want something as Chief Justice, such as the new court, I don't go to the prime minister’s department or Attorney-Generals I go to the Treasury. They run the show. Treasury know it all and it's their say in the long run, they're the people that I deal with"
Barwick transformed the Chief Justice’s Chambers at Taylor's Square in Sydney and Law Courts Place in Melbourne. Dixon’s chambers were Dickensian, Barwick favoured the modern look.
Then there was Sir Frank Kitto, who was a brilliant equity lawyer, a commercial lawyer . He was a fearsome person to appear before because he was a very sharp questioner of counsel, as was Barwick. It was a difficult court to appear before.
McTiernan was on the Chief’s right side as the senior puisne judge. Then there was Sir Alan Taylor who had been pretty much of a generalist barrister, appearing in common law, commercial and Admiralty cases in New South Wales. He was an avuncular character but also a fairly stern cross-examiner of counsel. There was the polished Sir Douglas Menzies, who was the only Melbourne judge on the court, and indeed the only judge from another State other than New South Wales. Then there were two judges who came from Sydney legal dynasties, Sir Victor Windeyer and Sir William Owen. Sir Victor Windeyer’s grandfather was a Supreme Court judge and his great-grandfather was a prominent barrister and parliamentarian. His knowledge of the law was extensive and he was an eminent legal historian. He served with distinction in the Second World War and in due course was promoted to the rank of general. Sir William’s father and grandfather had been judges of the Supreme Court of New South Wales. Everyone expected Sir William Owen to be the new Chief Justice in New South Wales but Evatt was appointed instead. As it turned out that was an unfortunate appointment which caused quite a stir and the Federal government decided to put Sir William Owen on the High Court, perhaps as a consolation prize. So it was obviously a very good court. Some thought that Barwick who had been such a brilliant advocate as evidenced by his performance in the bank nationalisation case was probably better as counsel than he was as a judge, but if you read his judgements I think they were pretty down to earth and a significant contribution to jurisprudence.
So because there were only a few judges, we had a reasonable opportunity for contact with judges in other chambers. When judges go into their chambers, there can be an attitude “Well this is my domain” and sometimes there is not a great deal of talking together and collaborating on judgements. McTiernan was always of the view that we should follow the English approach of judges getting together and delivering more judgements together as joint judgements. You have got to have the personalities to do that. Some judges such as Dyson Heydon prefer not to take part in joint judgements. On the Barwick court Taylor, Owen and Kitto quite often decided to deliver joint judgements
When I started in practice, the judges from different States did not mix very much and there was not an Australian College or Association of judges. In Roma Mitchell’s time, it was decided that there should be an annual meeting of the judges of the Federal Court and the Supreme Courts. This was a marvellous opportunity for the judges to get together and discuss issues which affected them. It also provided an opportunity for friendships and informal exchanges. This enabled judges to inform themselves of practices and procedures in the various jurisdictions. So I think that was one of these changes in the legal profession. It contributed to an Australian judicial community and it has been formalised now with the judicial College and the like.
Q Your time on the High Court lasted one year or two years?
A Something short of two years. I made up my mind that I would only stay for a year with Bob Clark’s message ringing in my ears, that I'd be forgotten when I came back. So I determined that I would leave after a year. Sir Edward was getting a bit slow on the administrative side at this stage and I was coming towards the end of my term when I realised that I had not spoken to him about my successor. He then suggested that I might find someone and I contacted another South Australian Jeffrey Browne who became the next associate.
Q And just before we leave the High Court, as an associate, how much of a role did you have in drafting judgements?
A It differed from chambers to chambers but McTiernan's associates were expected to play a significant role. There are stories around that his associates used to write the judgements. That is an exaggeration but certainly there was no Judge who made more use of his associate in discussing judgements and so on, at that time than McTiernan. I didn't complain about that because it was good experience for me, but I have from time to time had a few judgements cited to me when I was on the Court and I was never able to say it at the time, but I would at least say “That’s a very pertinent passage” and I can remember agonising over the passage night after night with the judge so I made a contribution in that respect.
Q That must have given you some expertise in, among other things, constitutional law?
A Yes. Well it was an expertise that, as it turned out, I didn't use very much. But I certainly did find out a lot about the background to a lot of the great constitutional cases and particularly those Section 92 transport cases which dominated the court for so many years. I remember on one occasion we were going to Queensland on circuit for the High Court sittings, and McTiernan had got a bit worried because there had been a couple of planes dropping out of the sky and he decided that he wanted to go by car so he said "Would you make arrangements with the Commonwealth car pool to get me a vehicle, so that the driver can drive us up to Queensland?" And so I spoke to one of the top drivers in the car pool, a chap called Max Avery who was the Prime Minister's Sydney driver and he said "That is the job for me, don't worry about it. I'll do that. I find it very pleasant to drive up from Sydney through that beautiful northern New South Wales country to Queensland" and he said "Not only that, but because I drive the Prime Minister when he's in Sydney, I’ve got the big Pontiac.” Max made sure he got the job and the big black car with Z plates caused quite a stir as we were driving up through some of the country towns.
We got to Tweed Heads and, as you probably know, in order to infuse some sort of interstate element into the exercise so that the transport companies did not have to pay State taxes the usual excuse was they had a depot and this was just over the border so that they could say they had to go over to their depot making it an interstate trip protected by the section 92 freedom of intercourse between the States. Then they would drive back into the original State. McTiernan was justly sceptical of this ruse. Tweed Heads was more often than not the town in which the alleged depot existed.
When we got to Tweed Heads the judge said to Max "Max, would you drive around the town?" Max said "Sir, where do you want to go?" The judge said "Anywhere, just around the back streets and lanes, everywhere you want to go". Max looked at me as much as to say "What's going on here?" So we toured most of the backstreets and after about half an hour the judge said "Right Max, we'll continue on now to Brisbane". Max and Lady McTiernan who was with us still had no idea what we were doing and after a while the judge tapped me on the shoulder and said "I thought so" and I said "What's that Sir?" and he said "Not a damn depot in sight". That is a fitting postscript to years of hard fought litigation.
Q Yes. After Tweed Heads, you came back to South Australia?
Q What happened? Where did you go?
A Well one night I went to the Naval and Military Club and Eb Scarfe who was the Crown Prosecutor at the time was there. He had just taken silk and he had been my lecturer in Evidence at the university. He said “Well, what are you going to do?" And I said “The thing I want to do is to get into Court as quickly as I can in whatever shape or form". He asked me would I like to do some prosecuting. He said "It's like a tap, it's turned on all the time, it's Court work all the time. You'll never learn more about the law of evidence than you will doing prosecuting for however long you want to do it" and he added "The marvellous thing about it is good Queen Elizabeth, win, lose or draw, she comes back for more".
I gladly accepted the offer and eventually became an Assistant Crown Prosecutor. Bear in mind, at that time there would only be three or so people who were doing prosecuting regularly, and so there I was and I was really flung off the deep end into cases. There were a lot of them, there were only a few of us and so the first thing he put me into were murder committals, because the Crown Prosecutors Office used to do murder committals and in those days, they were the full committal, all the evidence was called and quite often defence counsel cross-examined.
Q This was before a Magistrate was it?
A Before a Magistrate, so you were on your feet and you had to do exactly the same as you would have done if you were conducting the case in the Supreme Court, in the sense that you led the witnesses through their evidence. So that's how I started and then Eb said to me “Right. You’re in for a jury trial now” and he gave me a couple of jury trials and then from there on it progressed to the point where, because of the very few people in the Department, I was doing work that if you were in the profession, you had to wait ages before you worked at that level. I well remember being terrified over the first murder case I ever did. It was the case of Hallett, which was a mutilation murder from Tumby Bay on the West Coast, and it must have been 1968. It became one of the leading cases on causation because there was a fight between a ganger and a fettler from the railways and the person charged with the murder, Hallett, claimed that he had left the deceased unconscious by the edge of the sea. The cause of death was drowning, so the issue of causation was raised.
Q Do you remember who the trial judge was?
A David Hogarth. He had not done any criminal work in practice, but it had long been the practice in the Supreme Court that a judge’s work is not confined to a particular jurisdiction. Len King was particularly insistent on this practice. I think this makes life more interesting for the judge. I would not have liked doing the same work all the time.
Q I think in the past, because of the preponderance of criminal work in the District Court.
Q That's got to a number of the Judges there and –
A I think that's right. I mean a judge with particular experience might be selected for an individual case because of that experience but the fact is there is a general roster.
Q There is a view though that if you have developed a great specialist expertise as a criminal lawyer that actually equipped you well to deal with all aspects of the law.
A Yes and I can see the argument the other way. I would not want to be rostered onto a huge commercial case which was going to last for many months and it applies the other way in relation to complex criminal cases. But I do understand the point that you make about that and there is an argument the other way. In some States the judges do specialize. But I liked our system the way that it was. It might be the case though that particularly when you're getting a heavy turnover of cases, that you want judges to be able to deal with them fairly quickly and efficiently and in that case, it does argue for more specialisation.
Q I think that as jurisdictions get larger and populations get larger, the argument becomes stronger probably in terms of efficiency.
A Yes, I think that's right. And you have the classic example in New South Wales, where Justice Rogers took over the Commercial Court. Justice David Hunt also took over the defamation jurisdiction and did most of the directions hearings as well as the trials.
Q Yes. I don't think there's any doubt that the senior commercial barristers don't like being allocated a judge who has little or no background in civil law.
A That's right.
Q In any event, at quite an early age, you got involved in prosecution and in a sense you're in at the deep end because you were leading major trials in the Supreme Court, with a jury, and lined up against you were defence counsel of the highest calibre, so no doubt you learned very quickly.
A You learn very quickly - the deeper the water, the faster you have to swim. I think one of the good things about it was it was still a small jurisdiction, there wasn't a dog eat dog attitude and the style of advocacy was not dog eat dog
Q So criminal litigation was effectively conducted in a civilised manner?
A Yes. I think that it was conducted in the manner in which it had been conducted for a long time and I think today civil and criminal cases are conducted in a civilized manner. The court has the power in any event to ensure that they are so conducted.
What has changed is the style of advocacy. This change has become apparent in both the United Kingdom and Australia. It is particularly apparent in jury cases. Sir Norman Birkett KC (later Lord Birkett), one of the great English barristers wrote a little book entitled “Six Great Advocates ”. He examined the style of famous English advocates such as Sir Edward Marshall Hall which was somewhat theatrical as they played on the emotions of the jury. As juries became more educated and with the increase of scientific evidence the style of advocacy changed to a less histrionic and more subtle approach. Norman Birkett himself was an excellent example of the new breed of advocate. He was softly spoken but a brilliant cross-examiner. His understated style adapted to a more modern society. Frank Villeneuve Smith the South Australian advocate, Frank Galbally of Victoria and Clive Evatt senior of New South Wales are examples of the old style of advocate. In my time Jack Elliott QC against whom I appeared on many occasions also represented that school.
The length of trials also had an effect on the style of advocacy. Not so long ago the average time taken for a serious case such as murder was a few days. The series of “Famous British Trials” demonstrates that this was also the situation in the United Kingdom. Now these cases can go on for months.
Q Three or four days was a long trial back then.
A A long trial, and the judges summing’s up would be much shorter than it is today. One of the real problems which this has created is the question as to whether with a lot of these trials we expect too much of jurors. They come to the court as laypeople and into the formal and exacting circumstances of a criminal trial. For the most part they sit there in silence. They listen to some horrific circumstances, and a lot of evidence day after day after day. They are taken away from their usual occupations to do so, and then it comes time for the judge to sum up. The law has become so much more complex, The judge’s nightmare, the case from hell, is to give the jury directions on self-defence, provocation, lack of intent and intoxication all rolled up in the one case. Bearing in mind High Court and other pronouncements as to what a judge has to deal with in those circumstances, it makes it an enormously difficult task for jurors. A regular topic for judges’ conferences these days deals with jury comprehension and understanding in complex trials.
An excellent study was done in New Zealand a few years ago by Professor Warren Young and a team of researchers. They were given access, to jurors who had sat on cases which is quite unusual, and the jurors were able to explain some of the difficulties they had in understanding concepts and some of the difficulties they had generally serving as jurors.
Since then there have been studies in plain English usage to explain concepts to jurors and other methods to assist jurors to overcome the consequences of complexity in hearings. A central feature of good advocacy is sensitivity to the situation of the court and ,in this case, the jury. But this also applies to judges who must be sensitive to the difficulties faced by jurors and the importance of assisting them accordingly. These days that is no easy task.
A So I suppose that would be the biggest change that I have lived through in the criminal jurisdiction, and as far as crime in the community that we hear so much about, it's easy to pick the greatest change there and that is in relation to drugs. When I started practice, the only drug offences involved somebody who was taking prescription drugs on a forged prescription or something of that nature. We knew nothing about cannabis or ice or the real effects of heroin and the like. Then suddenly, we had to deal with these issues in the courts. It is not just drug cases per se, but it is the drug related crimes which have produced the most frightening change in law and order in the community which we have encountered in our time.
Q A former late DPP, Paul Rofe made a public statement on at least one, possibly more than one occasion, that if a lot of these illegal drugs were legalised, at least 50 per cent of the violent crime would disappear overnight. I don't think that that was an attitude that curried much political favour.
Q I'd be very interested to hear your view on that.
A Well certainly you couldn't place a percentage on it. To make a point it's nice to say 50 per cent, but you could never say that such was the case. But there is a school of thought and Paul wasn't the only one who suggested it that this would be an appropriate measure. The main purpose claimed for the measure was to strike at the peopl who are making so much money with drugs. I think Paul's comments were restricted to marijuana and one can perhaps say begrudgingly "Well it's something to think about", I just think that if we legalise drugs, a lot more people are going to use them and in recent years there have been some fairly disturbing studies on the effects, even of marijuana, which everybody said was just a fun drug, but which in fact could have disturbing effects, long-term effects. So I don't like the idea of the government being in the business of distributing these drugs in the community. There could be an exception made when people are terminally ill and are sometimes given drugs of that nature, but I think it would be a big step for anybody to take and if I were a politician, I wouldn't take the step myself.
Q I note with interest that when you introduce the topic of the change in the law because of the change of criminal behaviour as a result of illicit drugs, you didn't mention alcohol.
Q And probably one good reason is it hasn't been illicit in Australia ever, however that has been a staple, hasn't it, in crime for a long, long time?
A It has been and it's absolutely entrenched. I suppose if you started with percentages you might even come out ahead of the other drugs, I don't know. Roma Mitchell always used to say on the bench but Mr so and so, or Miss so and so, "Alcohol is a drug too" and she was quite right, of course, it is. I think it's just that it would be like trying to turn the tide back like King Canute to try and reverse the situation. But you're quite right and there has been a considerable amount of law recently on how the effects of intoxication should be approached in relation to offences under the law.
Q Sure. Correct me if I'm wrong, but under South Australian statute law now, you can't raise as a defence to criminal responsibility, the fact that you were intoxicated by alcohol?
Q Do you have a view on that?
A I think that the Act has got it pretty much right at the moment.
Q I think it's fair to say that you were appointed Crown Prosecutor at the tender age of 29 years as a direct consequence of alcohol.
A Well that's one way of putting it. It was a rather tragic incident actually. Eb Scarfe got picked up for driving under the influence not long before his career finished and it resulted in a lot of publicity. It was a hard fought case and at the time of his death he had appealed against his conviction. It was a difficult time for all of us in the Crown Prosecutor’s Office. Then he died in a car accident while the appeal was pending. He had bought a place down Normanville way and it was a difficult drive back and forth each day. One night he drove off the road into a tree on the way home and was killed. I was shattered when I heard the news and I rang Jack Elliott QC who was a very good friend of Eb and told him the news.
As events turned out I was appointed the next Crown Prosecutor. In those days we didn't have a DPP so the Crown Prosecutor in effect did the work that the DPP now does. At 29 years of age I didn't think I was up to it. I came through the profession at a time when you had to be a pretty mature practitioner before you were made a Magistrate or appointed to some other responsible position in the profession, and at 29 I thought I was pretty green. But I consulted with a number of people one of whom was Jack Elliott. He has written about this incident in his book. I told him of my misgivings but he encouraged me to give it a go.
I did not have his confidence but I took his advice and did give it a go. It was a difficult time for a while. At that time the Crown Prosecutor virtually ran the criminal list and this was something that John Bray did not like very much when he became Chief Justice. Nowadays there is an administrative branch of the court which decides when cases are to come on, so that you have court listing officers, as they do in the civil jurisdiction. But when I was Crown Prosecutor the unique situation which I have described had been the position for as long as anyone could remember. You got all the papers from the Magistrates Court and you drew up a list for the coming month. You decided when cases were going to come on. John Bray had some difficulty wrangling with Eb Scarfe about his cases when John was at the bar. There was a more significant difficulty in that you had one side to litigation deciding when cases were to come on and before which judge. So you would go up at the beginning of each month and sit across the desk from a judge and say “Well Judge, this is what we've got for you for the month’, and that was it. I remember going up on the first occasion to see John Bray after he was appointed Chief Justice and I said “There's your list”. He looked at me through that trademark squint of his eyes and said “I don't like this idea of the Crown Prosecutor running the list”. I said “Neither do I, it's one of the worst jobs out. Practitioners are always complaining about when you put their cases on and so on. Apart from that it's a significant administrative load.”
I was genuine in what I said. I was never cut out to be an administrator, I just wanted to do court work. I told the Chief that I would support any move to change the system, but it was some years before the court took control of the criminal list.
Q Probably the time lag was because John Bray wasn't a natural born administrator either.
A No, he wasn't although he was a great lawyer. And I often thought, you know, how difficult it would have been for John Bray if he had become Chief Justice at a later time because he, as you know, was succeeded by Len King and Len was a great administrator. He knew parliament and government like the back of his hand. He argued for and succeeded in obtaining legislation for the Court Administration Authority, whereby the judges were not given money when they asked for it, but were provided with a budget and had responsibility for how the money was spent. This was an Australian first. However it meant that the Chief Justice had to go down to the Parliamentary Estimates Committee and justify expenditure. The thought of a Judge going down to be questioned by the parliamentarians was unheard of, but it depended a lot on personalities and Len used to go down and, to use snooker terminology, “play them on a break”. He knew politics backwards and he had come away from his ministerial roles as one of the most respected of parliamentarians.
Q I'm sure that's right.
A No one at Parliament House dared to suggest something other than what he was suggesting. But I felt for John Doyle because John, who was also a superb Chief Justice, had the extended administrative role to perform which had been created in his predecessor's time. He carried it off very well because of his personality, but I cannot for the life of me imagine John Bray going down and sitting there and becoming involved in one of these television type scenes that you see these days before an estimates committee. That is a good indication of how things have changed.
Q Yes. Do you think the administrative burden for John Doyle was a particularly heavy one? I got the impression as the years went on in some respects he was finding it tougher and tougher to deal with government?
A Well he was, we all were. We went through a difficult patch when the relationship between the courts and the government was not good, and a lot of statements were being made in public and in the media which were unhelpful. You will remember those days as well, because you were President of the Law Society during part of that time. It wasn't pleasant and the law and order campaigns which had become very common in England and used by politicians for political purposes in the 70s, started to come into vogue in Australia. It could hardly be said that judges are against law and order but the constant call for more and longer sentences is not the easy fix for criminal behaviour. In addition there were the substandard conditions for those working in the Supreme Court and members of the public attending there. Calls for remedying this situation were treated with contempt by some members of the government. We were fortunate in having John Doyle as Chief Justice at this time. As well as his brilliance in leading the court in its judicial work he sought to remedy the problems occasioned by inadequate facilities with dignity and perseverance.
Q To some extent it's my impression that the executive branch of government in South Australia, considered that they represented the people because they were the democratically elected government, the judiciary weren't, and the executive were in a naturally superior position and I don't think that there was very much understanding of the notion of separation out.
A No. I think that's right to a certain extent. Certainly the judiciary should not be relegated to a lower rung on the ladder. I think that they are equal partners: Parliament, the Courts and the Executive. However it is important to bear in mind that the judges are not there to make the law and that's an important constitutional principle as well. Janet Albrechtsen is always lecturing us on this. Judges should not exceed their authority and assume the role of judicial legislators. On the other hand the judiciary are entitled to co-operation by the government in providing adequate facilities to carry out its responsibilities and should not be derided for seeking those facilities.
Q The State government is probably facing difficult budgetary circumstances, although in my view is largely of its own making. However does that give them the mandate to starve the Courts of funds and to deliberately not replace retired judges at a time when the caseload hasn't diminished?
A No, it certainly doesn't give them the mandate. On the other hand you can't say "Well the Courts are going to get far more for everything they want than, say, hospitals". This is the difficulty. Revenue is a cake and it has to be divided up, but the litmus test is whether the Courts can effectively carry out their role without undue delays and difficulties which seriously impact on that role. This is a community issue. The community are vitally interested in it and if it is the difference between money spent, which has to maintain a minimum level of efficiency by the Courts, as opposed to some areas in the community in which savings can be made, I think that you have got to look at the basic and essential community service which the Courts provide. I don't suggest that this is a very easy thing at all, it's not: all the more reason why communications should be carried out without heat rather than by the use of comments such as whether the judges want a Taj Mahal in which to work. That only inflames a difficult situation.
Q Yes. I think there was a general impression when John Rau became the Attorney General, in place of Michael Atkinson, that here we had someone who was actually in touch with the profession, was still a serving barrister and that there would be a significant difference, at least in attitude. I think for a time we saw that, but I don't think very much has actually changed.
A John Rau knows what is required and I am satisfied he will do his best to achieve it. I am not making a political statement about that, because I think if you compare him with say Trevor Griffin as Attorney General, both of them know the legal system and what is good for it. I think you're right about John Rau, He has that sensitivity. The issue is how much of the cake he is able to put towards the legal system consistent with competing demands.
Q I think that's probably enough for today. I think you've, if I may say so, done a great job and so at 4:10pm, we will shut down and we need to arrange to resume in about four weeks time, preferably on a time on a Monday that's mutually convenient, thank you.
The date is the 28th of July and I’m resuming my interview with Kevin Duggan. Kevin, when we left off last time, I think you got to the point of having been appointed Crown Prosecutor after the very untimely death of Eb Scarfe. Would you like to talk about your period as Crown Prosecutor and obviously your experiences, but also what was the relationship of the Crown Prosecutor to the Attorney General back then? Because my understanding is unlike the DPP now, the Crown Prosecutor didn't have the same degree of independence.
That's right, yes. The office of the Crown Prosecutor, was the forerunner of the Director of Public Prosecutions, but there was not the formality by way of legislation that there now is and, you are right, there wasn't the independent decision-making which the Director of Public Prosecutions now enjoys although the case of Nemer indicates that there are some exceptions to that and that the government might decide to take a stance and send the Solicitor-General in to argue an appeal against sentence.
The role of the Crown Prosecutor was to administer the office of the Crown Prosecutor. I don't know how we did the work bearing in mind the small staff. There was the Crown Prosecutor and a few Assistant Crown Prosecutors to do the main criminal prosecution work in the State. At the time that I took over as Crown Prosecutor there was no District Court. It was really the Supreme Court criminal work and that court handled everything from breaking and entering cases to murders. All indictable offences, if they were not minor indictable offences, went to the Supreme Court. It was a case of administering the department, giving opinions, giving advice to the police and then prosecuting in the actual cases themselves.
As to the relationship with the Attorney General, my experience was, and I never had any difficulty at all and Attorneys- General that I served under didn't have any difficulty at all in establishing a proper working arrangement. Just to give you one example of that, Peter Duncan was the Attorney- General for part of the time that I was Crown Prosecutor and he said to me "If anything's got a political smell about it or some sort of notoriety that I should know about, you let me know, but as far as I'm concerned you run your own show". From time to time when we were going to lay a particular charge that wasn't the original charge, or we were going to enter a nolle prosequi, that is where you're not going to prosecute, I would let him know and he was quite content with that.
I served under Len King and he was exactly the same. Len was an absolute professional as a lawyer as you know, and I really did benefit from working with him because I would get a fair bit of feedback from him as to what he thought of some of the matters that I was bringing to him. Len could turn his mind and skills to any jurisdiction of the Court, he was like Elliott Johnston and he was an extraordinarily hard worker. I can remember he was a very busy Attorney- General, but he would come to me before the Parliament went into recess and say "If you've got a couple of murder cases throw them over to me, I wouldn't mind keeping my hand in during the recess period" and he would go up to court and lead the prosecution in those cases.
The District Court wasn't in operation then, but it did come into being while I was the Crown Prosecutor and Len said to me “ I wouldn't mind coming up and taking the first case before the Court". I handed over the brief. It was a case of a man who was charged with assaulting a police officer in a nightclub. Len opened the case and it was quite a media event being the first case. Michael Abbott was on the other side and he often chides me about this case, as he was a young barrister and he had the Attorney- General prosecuting the case and the Crown Prosecutor as the junior. He lost no time in referring to this, no doubt to get a bit of sympathy for his client. Anyway, Len took the first witness who was a patron of the nightclub who had allegedly seen the assault and our case was based to a large extent on him. He gave his evidence and Len turned around to me and said "Well you've got no worries with this case, he's a very good witness. The jury will obviously accept him. I'll see you later, I've got to shoot back to Parliament. Carry on”. The irony was that although the accused was convicted, years later our star witness was himself charged with murder and I had to prosecute him. I never let Len forget it, telling him that he might be a very good lawyer but that he was a shocking judge of character.
I suppose even good witnesses can kill though.
Of course, that's right.
Is there a temptation in a case where there is a great deal of public interest and maybe public prejudice against a suspect, obviously you as Crown Prosecutor had to make the decision on whether there was a sufficient prospect of success to go ahead and prosecute. But my question to you is, sometimes would it not be tempting to take the matter to trial, and if the person is acquitted you say "Well I had no control over that, that's the system"? And that way you avoid public criticism and criticism from the press of dropping a prosecution.
Yes. I can understand that as a possible line of thinking. In my view it wouldn't be right thinking, because no person should be put on trial unless there is a reasonable prospect of success. It's a very traumatic thing to be the accused in a trial, particularly if there is a real question as to whether there is enough evidence and whether the person should be put up in the first place. I didn't find it such a great difficulty to make that decision. You had to make a professional decision just as a surgeon has to make a professional decision. I didn't have a great deal of difficulty with that, although I sometimes worried about what the public reaction might be. Bear this in mind that I was the Crown Prosecutor at a quite different time. In later years law and order campaigns became common. Cases became much more political and this puts great pressure on persons making prosecutorial decisions. I have some sympathy for present day prosecutors who are the meat in the sandwich in this respect. It is easy to blame them. I have great respect for the independent prosecutor who calls it as he or she sees it whatever the consequences.
Well I suppose that then leads to the legislation about the Director of Public Prosecution had a much greater degree of independence than the Attorney General.
My understanding is that that was meant to achieve that very objective, the decisions to prosecute ceased to be political and yet, we had the Nemer case, Paul Nemer, and that wasn't about a decision to prosecute, but a decision to appeal against sentence.
Where the Attorney General of the day, I think probably with a very strong backing of the government of the day, used the reserve powers in the act to overrule the DPP Paul Rofe, and I have the very strong impression that that caused a reasonable level of judicial stress. Is that something you'd like to make some observations on?
Well it could have. When you say judicial stress, do you mean on the part of the Appeal Court?
Yes, on the part of the Appeal Court.
I haven't heard any of that and quite frankly I can't remember who was on the Appeal Court. None of them spoke to me about that. The interesting thing of course was that the appeal was upheld and so the Appeal Court must have decided that there was a valid reason to appeal. I did feel uncomfortable about the fact that the Attorney General stepped in. I thought it should have been a matter for the Director of Public Prosecutions, whether the decision was right or wrong. From the point of view of justice, justice wasn't going to crumble if Nemer got the penalty which he was originally given by the sentencing judge. I didn't think it was that important, but there was a lot of community angst about it and that no doubt prompted the Attorney General to take the action which he did. Once you do something like that, you create a precedent and then the public are entitled to ask "Well why don't you jump in in this case, or that one?" I always thought that the Director of Public Prosecutions legislation was a very good measure as far as the politicians themselves were concerned, and the Attorney General in particular was concerned. The Attorney General could say "This is a professional decision made by a professional prosecutor and I don't need to be involved in this controversy" so I don't know what went on behind the scenes, but the fact is that the Attorney General did weigh in. I don't think there's been another case in which it’s happened.
It was quite exceptional, but we had an exceptional Attorney General then too, Michael Atkinson, who while he had a law degree, he was never a practising lawyer, but he was the total embodiment of a politician. I don't know that he took the role of Attorney General as other than a purely political office, whereas other Attorneys- General have had a different view about that including Len King. Is that something you'd like to make an observation about?
I wouldn't enter into a critique of Michael Atkinson, simply because I don't think it's appropriate that I should do so. But certainly my model of an Attorney- General would be Len King, there's no question of that. He was able to get by very effectively without having to unnecessarily intervene in cases, and I would prefer that approach. Of course Len had the experience, both politically and within the profession.
It's quite clear that the overall judicial workload in South Australia has increased at a far greater rate than the population. Do you have a view on why that has happened?
The entire legal profession has got busier. Not only are there more cases, but they have become more more complex. More cases place more demands on the administration of the court, particularly the administration of the lists in the court in the various jurisdictions, and the judges have become more involved in that . All this has meant that instead of waiting in the sidelines for cases to come on the judges have had to accept the responsibility of caseflow management both before and during hearings. Judgement writing has become more onerous because of the increased complexity of the law and the facts of the individual case. There is no time for long lunches.
How many years were you Crown Prosecutor for?
Did you take Silk while you will Crown Prosecutor?
Yes, I towards the end of that period.
What motivated your decision to move from that world to the independent Bar?
It wasn't something that was done very often in those days; now it's done quite frequently. I couldn't imagine myself, having taken on the role at a fairly early stage of my career, staying there until the end of my time in the profession. The bar seemed very appealing. I liked the idea of its independence and doing your own thing. There are very few areas of professional practice in any profession, where you can be as independent as you are at the Bar. You are dependent upon the profession briefing you, but that's a good thing because, it makes you all the more determined to succeed. My wife Rosemary has always said that it was my happiest time in the profession. It was quite exciting to begin with and it was a case of getting out of it exactly what you put into it. You are your own person. Quaint as some people might think of the English Bar system, I think it has stood the test of time. There is much to be said for its independence which enables an objective assessment to be made of cases in which you are briefed.
My experience in civil matters is often that there's absolutely no prospect of settlement until the other side briefs a good barrister.
That's an interesting observation. I think it goes back to the ability to make an objective assessment which can help to avoid costly and wasteful litigation. If there were not settlements in cases, we would all be in terrible trouble.
That's right. It's only ever been a small percentage of disputes that have gone to trial.
And that was before mediation was even thought of. The point is it sometimes takes someone entirely independent who has no emotional tie to the dispute, to see the wood from the trees. Or the trees from the wood. So when you went to the Bar - presumably the scope of the jurisdiction that you worked in expanded?
Yes, it had to in a way because Queens Counsel should be expected to take cases in a number of jurisdictions. Naturally within the group of Queens Counsel or Senior Counsel, there is going to be specialisation and that is good too, because specialisation is an aid to expertise. However, as I say, there is an expectation that you will broaden your practice to a certain extent.
Yes. And you were at the Bar for how long?
And then appointed to the Supreme Court?
Who were your fellow judges of the Supreme Court at that stage?
The Chief Justice was Len King. Then there were Sam Jacobs, Michael White, Chris Legoe, Brian Cox, Bob Mohr, Rod Matheson, Derek Bollen, Robin Millhouse, Graham Prior, Trevor Olsson, Maurice O’Loughlin, Robin Millhouse and John Perry.
Maurice O’Loughlin was one of the rare appointments straight from a solicitors practice.
Yes, he was and he did very well when he went there. He had been involved in some commercial litigation, but had not done a great deal of court work. He was very kind to me when I went to the Bench. Maurice and Trevor Olsson got together and gave me a lot of useful precedents which they had collected over the years, things which I would not have had at my fingertips such as matters relevant to the calculation of damages in personal injury cases. I have to say that we all got on very well together. It was a particularly happy and collegial court and this was a considerable aid for promoting efficiency.
Now obviously being on the Supreme Court, there's no separate Court of Appeal.
So the Full Court is comprised of three judges in the Supreme Court.
Yes or five in exceptional cases.
Which means that you've got this small quite tightly knit group of people, probably a considerable sense of camaraderie and necessary distance from the profession as a whole, and yet you're constantly sitting in judgement on your fellow Judges.
I don't know how it works, but it does. There are separate appeal courts in a number of the Australian jurisdictions interstate. However it seems to have been thought that we are a bit too small to have an independent appeal Court. Now and again you might have a judge somewhat concerned about having a decision upset by his or her colleagues, but that usually passes fairly quickly thanks to professionalism and the realisation that decisions must be open to appeal.
Presumably when the Full Court wrote its prospective judgements, particularly if you were overturning the judge in the first instance, you weren't rude?
No. I've always thought if you do have to criticise somebody you can do it without being offensive. I do not think that you should have any difficulty about saying things directly and appropriately, without turning the knife. But if you are made a judge, you have got to accept that you are not going to be infallible, and that some of your decisions will be overturned. Of course if it happens too often there might be something to worry about.
Yes. Tell me a little bit about your experience of the judicial process, because obviously it is something that you're intimately familiar with, but the general public isn't. They are aware that there are judges, they sit in a court room in an elevated position, they probably have some conception of grumpy judges by programs such as Rumpole, but they probably don't have a very good understanding of what a judge does and what a judge’s responsibility is.
Yes. I think it's a wonderful thing that these days they take schoolchildren into the courts to at least get some experience of what the courts are about, particularly if the proceedings are explained properly, perhaps by one of the court officers. It is a bit sad that a lot of people's experiences of judges and the law comes from being a witness in a case or being involved in litigation, and that is not the most pleasant way in which to become acquainted with the court.
Jurors do see a piece of litigation that goes from beginning to end, and it is very important that they have explained to them the nature of the court proceedings, the nature of evidence, the reason why some things are admissible and why others are not and to have the law explained to them. Unless you explain it to them in layman’s terms, which they are able to understand, you really do not get to first base. So there is a challenge in that. Bear in mind that most of the jurors would be coming into a court room for the first time in their lives and our procedures are very formal and exacting. They must be overawed by that. It is important that they should be made feel comfortable if not at home as soon as possible. I think that one of the great challenges for counsel and judges is to be able to work with jurors. It is a great privilege to be able to be able to work with members of the community on a very important matter which has the potential for considerable consequences to people's lives. It is a unique system and it is one way whereby members of the community can gain a first hand understanding of the way the courts work. The more the law can be demystified and the more it can be demystified by judges who are sensitive to the position of lay people and assist them by explaining the law, the better. That has been one of the more significant developments during my time in the law.
So obviously juries are restricted to criminal trials.
Here they are, yes.
I take it from what you've said, you're a great advocate of juries being judges of fact in criminal trials?
I am, but I am also very conscious of the fact that in some of the more complex trials, the situation becomes almost unbearable for jurors. That is a very worrying factor and I do not pretend to have the answer. In the general run of common garden criminal cases, juries are able to handle the matters very well. In matters involving complex scientific evidence and commercial evidence and the like, I think the time will come when the law will have to revisit the system and, whilst acknowledging the right to trial by jury in serious cases, it might have to be modified by reason of necessity. There have been talks in the past about a judge sitting with referees in a case to decide matters and perhaps that might be the answer. It could be directed that in certain cases where it was considered necessary to have legal knowledge in order to make the decisions for there to be trial by judge alone,
So your experience is that, from your perspective, juries normally got it right?
Yes. I must say they do.
You haven't had the experience where you felt the jury had wrongly convicted?
No, on the evidence that was available at the time of trial.
Clearly there's an issue now for juries, that didn't exist before, that they have access to a lot more information, in fact we're all flooded with information. That seems to be emerging as something of a problem for jurors?
Yes, it is. So many people now, even when doing a crossword, Google things. I suppose that is cheating a bit, but I can't imagine that some jurors don't start googling away to get some knowledge of the law or the facts of a particular case.. They are told not to, but I think the temptation must be great. A judge has to direct them that they can only act on the evidence they have heard in the case they are trying and not on what they have heard outside the courtroom, but they are only human beings. So I think that this is a problem. The social media is another problem. It can involve a lot of people expressing different views about a case that might be receiving a lot of publicity in the media. There is a dilemma here: if you tell jurors they mustn't do something, there may be a temptation to do it. We are living in a fool's paradise if we think that they are never going to be accessing material that is not the subject of evidence.
The other thing about juries particularly that I've heard, is that probably as a result of TV programs, forensic evidence has been elevated in the public mind to a higher plane than it probably should occupy.
You are right, there is no question of that. That is one of the first things that you hear judges talking to juries about: "Ladies and gentlemen, you won't solve this matter in half an hour or an hour like such and such a show on television". We used to refer to of Mason but he is old hat now. But you are right about the forensic programs. Series like Silent Witness make it look like everything can be solved quickly by science and they are waiting for the silver bullet, so to speak, that is going to prove everything. Real life is not like that. I think jurors understand that these programs are for entertainment and that they are not sitting in court for entertainment. They realise it is not as easy providing a solution to the case after hearing something for an hour. They usually smile when you mention that. I think that jurors are wise enough to know that they are not in that territory, but it could be one of those subliminal type of things that affects them.
Notwithstanding that, DNA matching has a very high statistical significance and yet laboratories have to be very, very careful with the handling of DNA material for risk of contamination.
Of course. This is a unique area of evidence, there is no question about that. A fingerprint used to be very significant in a case and in some cases it still is, but DNA is that much more extraordinary. When you hear expert witnesses talking about odds of millions to one you can imagine how that sort of terminology, which is quite appropriate to use if the statistics are worked out correctly, impacts upon a jury. In my experience, there have been a large number of cases where DNA evidence has either exculpated or inculpated people. As you said, that makes it all the more important that the procedures that are adopted in the laboratories are flawless and that the statistical evidence is worked out correctly. The utmost care must be taken, not just in the laboratory, but when the DNA is collected
Civil litigation - it's probably a trite comment but I'll make it anyway because as a rule of thumb, it's not all that inaccurate - if you take a civil dispute to trial, there's a reasonable likelihood that the legal costs on each side will exceed the amount you're arguing about. What that means is that from a commercial perspective, litigation is actually ineffective. Now a lot appears to be being done about this at the moment and I think there's initiative from the Supreme Court and the District Court, that I'll ask for your observations on. But I'll also ask you for the historical perspective, because when you were at the Bar, it wasn't the case that there were long, complex civil trials, or they were very rare, but a long civil trial was probably two or three days. What's happened?
You might ask the same question as far as criminal cases are concerned. We have murder cases when I started that would last for just a few days. It has happened in all jurisdictions that, just as life has become more complex, so also have the cases which arise out of life. Just to take one example, the extraordinary part the discovery of documents has taken in courts, young solicitors put off from practising the law by being put into warehouses in their early days of practice and having to look through all these documents. We thought that the IT revolution was going to resolve this but everybody says it seems to have generated more documents. You know as well as anyone, the nature of commercial transactions has increased in complexity and the law relating to them has increased in complexity.
Recently when the Adelaide Oval was handed over, there were 13 agreements that had to be signed to regulate the interests of all parties and all of them were quite complex agreements. In the old days, you probably would have had one document with four or five parties and that would have been it. So once disputes arising out of these complex arrangements burst out into court, as they do from time to time, you can't expect a court to be able to narrow the issues down to a few issues that are going to take a few days. The hearings for that reason take much longer. The Duke litigation in South Australia is a prime example. Not only was the trial a mammoth task but the appeal was also long and complex.
Takeover litigation, cases in which claims for damages in relation to the design of production plants are involved, cases involving complex accounting evidence, these are examples of litigation which can test the resources of the courts. You are also right when you say that legal costs act as a catalyst to settle cases. Sir Harry Alderman used to say about clients or opponents, "Wait until they get to the first day of the hearing and watch the confidence drain out of their fingertips". That could be for a variety of reasons, but now when people are made to realise how much the litigation is going to cost it becomes a very good reason to settle. Parties should also realise the uncertainty of the ultimate result in many cases. When Laurie Street, a former Chief Justice of New South Wales, moved into the mediation area, he used to start by tossing a coin in the air to illustrate the chances the parties were taking by continuing with litigation.
It also is a big stick, because it can work injustice.
It can if you've got a party with deep pockets.
The motive to settle might outweigh the desire to see a just outcome.
Yes, that is right. It can result in an injustice. But life wasn't meant to be perfect and these things happen.
Do you get the impression that the legislature is a little bit out of control in that legislation is becoming far too long and complex and that the politicians in Parliament that pass these laws, have no understanding of them?
I wouldn't go that far, but some people have the impression that you can pass laws to cure almost everything and there is a danger of becoming a nanny state for example, with laws which are inappropriate. But I wouldn't be too quick to criticise the concept of legislation in order to regulate society. I think probably what you are saying is that legislators can be a bit too quick on the trigger and sometimes act with the wrong motivation.
The great problem that everybody realises in relation to the Westminster system now is that the system is alright but the people who work within it are always conscious of the next election whenever it might be. Politics seems to be bereft of consensus. Australians do not deserve the carry on and point scoring which has become part and parcel of modern political life.
So do you think that our democracy is too adversarial?
I do. Debate is essential in order to test ideas and proposals but a determination to disagree with almost every proposal advanced by the other side is counterproductive.
Do you take the same view about the legal system?
Not to the same extent. The legal system has to be adversarial in a sense, because you have got two opposing parties with a specific dispute. However there is an analogy with politics if one or both parties becomes involved in point scoring and engaging in totally unreasonable litigation.
On the question of dispute resolution, obviously the court system is there providing independent judges to resolve disputes in a coercive manner. That used to be a far more simple process, if you want to get before a Supreme Court judge on a dispute, you could do it fairly quickly, fairly inexpensive and you'd get a judge to rule on the matter. More often than not that doesn't happen anymore. Do you think that jurisprudence is missing out as a result of mediation being almost essential for economic reasons?
Well you're referring to jurisprudence in the sense of the legal theory?
Yes. That is, judgements actually settling the law because where the law is not settled, that is a further impetus to settle out of court.
Yes. This might be a naive answer, but I think that if the apparatus was not there to apply jurisprudence, there would be cause for concern. I think the apparatus is there. I think the legal system is still quite solid and has become more sophisticated in its jurisprudential role, but the attitudes which we have been discussing sometimes mask the jurisprudential contribution which the law has to make. I think the test is when everything does break down, and all the discussions are off and the mediation has failed, can you go to a properly constituted court with appropriate people presiding over it, who are able to resolve the dispute which remains. And I think that is the situation we have reached at the moment.
Could you give me some insight into how you carried out your work as a judge outside of the court room? Particularly if it's a difficult or complex case and it called upon you to make a decision and write a judgement. What was the process that you used? Particularly bearing in mind that if you let that work get too far behind, you would be in a huge mess.
The great fear that I had was that I would get well behind in judgements. It is a worry that affects a lot of judges if they are conscientious about their work. If you had a large number of reserved judgements, it would be a nightmare. I don't know how you could sleep at night when you had got yourself into a situation which was almost unresolvable from your own viewpoint.
If I could give you an example with magistrates’ appeals. You go in to the magistrates appeals’ month with perhaps 30 cases in your list. You have to pick out the cases in which you can deliver ex tempore judgements on the spot and get rid of them. You then reserve the last week for about three or four cases in which you will probably have to reserve and write judgements. Brian Cox used to say: "The most difficult time in this judging business occurs when you are listed for a month of magistrates’ appeals followed by a month on the Full Court. You are up to your ears in judgements". So that is a difficulty and I am afraid that hard work is about the only answer, as well as being able to organise yourself.
This is where judges and practitioners get into difficulty, particularly when they have or start to have a family. My children were still pretty young when I got on the Bench and my wife Rosemary claims she had to introduce me to them from time to time. Ironically three of them found their way into the profession and their wives say the same thing
How much help do you get from Associates?
A lot of help. I am not good at delegating and I think my associates realized this and did a lot of useful work on their own initiative
We get very talented young people. We have a marvellous field to pick from and they are very helpful with the work as well as keeping you young, at least of heart.
Some judges rely more on their Associates. Tom Gray relies a lot on his Associates and he likes to have two Associates instead of a tipstaff and an Associate. Of course now they have dispensed with tipstaves. All in all I found considerable comfort in the companionship which associates provide apart from the assistance they gave me as researchers and running the court list. More important than anything is the opportunity to discuss a case with somebody, if you know you can do it confidentially, which you can do with an Associate. I should mention that my personal assistants over the years were incredibly competent and loyal. The same goes for my tipstaves.
Obviously in disputed matters, you're going to have counsel on each side, putting up opposing arguments, but notwithstanding that, I envisaged that you probably got a lot of assistance from the counsel?
You do, obviously. That is part of the purpose of counsel, to assist the court although they are required to further the cause of their clients.
One of the first questions that you ask your associate when you are told by the listings section that you are going into a complex case is "Who are the counsel involved?"
Did you rely very heavily on counsel to do the research for you?
One of the great advantages is that there are research facilities now available on the internet. In a way there is almost too much and so there is a danger of counsel putting a whole lot of material before you without concentrating on the essence of a case. The art of concentrating on the important issues and arguing points succinctly is particularly important when arguing appeals. Trials develop in a way like a growing tree. The appellate jurisdiction is quite different. The court does not have the luxury of travelling up every byway. Counsel who adopt the shotgun approach and argue every conceivable point are not favoured by judges.
So the appellate court is probably the one area where judges can insist that counsel be focused?
Yes, that's right.
But judges have got to be very careful not to interfere too much with the trial process?
Well with limitations. That was the old idea. Up to and including the Bray era the judge came in, sat on whatever case was put up before him or her and listened to counsel. It was not considered recommended practice for a judge to descend too much into the dust of the arena.
On the other hand, these days with such great demand on the courts’ resources caseload management comes into operation. I mentioned this earlier. Time must not be wasted. There are papers that are presented to judges now entitled "the interventionist judge". You don't want to indicate a particular view of the case too early or make a hasty decision but you may have to intervene more to keep things on track. I think there's a difference between that and wearing your heart on your sleeve by rolling off your views of the case as you go along and becoming, to the appearance of litigants in particular, partisan in the matter.
On the basis that the court time is a very precious and a valuable resource, not so much because of the judges time but because of the cost of counsel and solicitors etc, how do you feel about imposing the discipline of time limits?
I think time limits are very arbitrary. You have the United States Supreme Court for example, where a red light comes on and you sit down. Mind you, the High Court have used that device much to the chagrin of counsel. However it really depends on the case. It's got to be a judgement made as the case is going along as to what time you give to people. You cannot declare that you are going to allow 30 minutes for argument in every case, including a running down case as well as a highly complex commercial case. I don't know how you could do that. From time to time judges will say something like "Look, we have to finish argument tomorrow" and set time limits in those circumstances and perhaps make more use of written submissions, which has become more common now, particularly in appellate courts. Then of course there will be the sometimes necessary curtailing of a particular argument when no more juice can be extracted from the point. Time limits are easier to impose in appeal cases.
Can we now turn to your military career? We had touched on that but you mentioned that you were in the army reserve in your university days, and you've maintained your relationship with the armed forces all the way through. You served as Judge Advocate General for the Defence Force for a period of time. In the light of that experience, I'd just like to ask you some questions about the military law in Australia during your era.
Just before we do that, there is one thing. I wasn't in the Reserves when I was at university, but I did go in as what they called an Officer of Cadets to help train young cadets. My reservist career began after I graduated, when I became involved in the Legal Corps. Yes, but you were saying the role of the military law system -
Yes. There have been some quite significant reports.
Yes. Particularly on the disciplinary side, because the military law system is one of those unique English institutions, which we have inherited and really have not come to think of anything much better for resolving disciplinary matters in the legal system. Some people hold their hands up in horror and say "The military justice system is to justice what military bands are to music" but it's a practical problem that exists of having to discipline soldiers and providing a disciplinary system, and the device used for centuries has been the court martial system, a purely military creation.
Courts Martial comprise three or five officers who are members of the court and there is a Judge Advocate, not the Judge Advocate General, but a Judge Advocate who sits like a judge to explain the law as one would to a jury. Except that as far as sentencing is concerned, the judge explains the principles of sentencing to the members of the court martial but they in turn decide the sentence. This system has lasted for some centuries and it was adopted in countries of the then British Empire as well as the United States.
In the 1970s and 80s, this system was subjected to some close scrutiny. One of the difficulties is that it was not a standing court, it was an ad hoc tribunal. It had to be set up for each case and the commanding officer of the defendant who might have been responsible for laying the charge, had the task of setting up the court and deciding what officers were going to sit on it. Critics began to question whether the tribunal was as independent as it ought to be.
The fairness of the system was challenged in an English case which was taken on appeal to the European Court of Rights which declared the trial unfair by reason of the lack of independence in the Court Martial system. It was then decided that our system in Australia should be modified so as to pre-empt any similar challenge in this country. The role of the commanding officer or other person convening the Court Martial was removed and other structures were put in place to remove the criticism of lack of independence. The court in this form survived three High Court challenges to its independence.
Then there were moves here to create an independent military court instead of the system of courts martial. The parliament purported to do this under the defence power in the Constitution, not under the judicial power of the Commonwealth. There followed a successful constitutional challenge in the High Court. In effect the court ruled that what the parliament had tried to do was establish a court and that this could not be achieved under the Defence power. At present the government has not made a final decision on what it proposes to do in the long run. The interim course which has been taken is to revert to the Court Martial system in the form it was immediately prior to the attempt to create a standing tribunal.
Could it just be improved a little bit without being replaced? For example, the commanding officer might lay the charges but have no further role and that the court martial was convened by another senior officer who was unconnected with the matter?
Yes that is the position which was reached with the modified court martial system, but then it was giving it further trappings and permanent judges and so on which worried the High Court. Quite frankly,I think that both sides of the political divide have decided to put it into the too hard basket and as the Americans say, if it's working, don't try and fix it.
Yes. If it's not broken, don't fix it.
Just turning to another matter that occupied the minds of many for some time and got a huge amount of publicity. David Hicks, an Australian citizen, probably a very misguided one, who decided that he'd go overseas and fight with terrorist forces in a war in which Australia and the West wasn't involved at the time, and they did become involved and he was captured by the Americans and taken to Guantánamo Bay, and incarcerated there without charge or trial for some years. Eventually, a compromise was reached, but it certainly occupied the minds of many senior politicians, the Foreign Minister at the time, Alexander Downer, and I suspect the military. Do you have some observations about that from your perspective?
I think it has to be looked at in a fairly wide context to explain how all this happened. As you know, we are very dependent upon the United States to assist our own defence system as an ally. On a personal level, the military forces of each of our countries get on well together. At about the time when I came into the role of Judge Advocate General, International Operations Law was looming large and the emphasis was on providing guidelines which were appropriate according to international law for the various operations in which we were becoming involved, particularly as part of international forces, whether under the umbrella of the United Nations or otherwise. The relevant issues in these engagements involved matters such as rules of engagement and status of forces agreements.
Australia favoured the concept of an International Criminal Court and presumably part of the work of that tribunal would relate to alleged crimes against humanity by persons or groups including terrorist organizations. However the Americans were not in favour of the concept and were unwilling to face the possibility of personnel of their own forces being taken before the tribunal.
Guantanamo Bay was a facility in which suspects were held for indeterminate periods without the clear prospect of an independent trial on the horizon. I make no comment on Hicks case as I have no knowledge of all the facts, but I could not condone the principle of detention of the nature which I have described. Of course the torture inflicted on inmates which has now been revealed could not be justified by any right thinking person.
The Australian government of the day was complicit in the sense that they didn't appear to advocate for an Australian citizen and he was basically left to his own devices.
Not enough was done at a high level and bearing in mind the fact that we had great sway with the Americans, as they had with us, I think that if strong representations had been made, the matter would have had a much shorter life.
There's evidence of that because the UK, which was also an ally to the US, did make strong representations about its citizens and they got released.
Another topic: judicial appointments. Judicial appointments are made by the government of the day and to that extent it is a political process, but in a lot of countries now, a lot of jurisdictions, they try and depoliticise it by various means. At the very least all governments, including the South Australian government, go through a process of consultation, although my own experience is that sometimes it's entirely token. Do you have a view on the current system for appointing Superior Court judges and in particular, do you have a view on promotion to the Superior Court from other jurisdictions, such as the district court?
The consultation system in South Australia is important, bearing in mind that there is no judicial commission that might be used to appoint judges. Perhaps it would be more desirable if there could be some sort of independent commission, but then you've got to set that up and who do you put on the commission? There is a difficulty about that and, like it or not, appointments by the government of officers such as the Governor and judges have under our system and the Westminster system, been traditional and part of the constitution and I find it difficult to think of another system. It might be sitting on the fence but I think we can only do something to encourage the refinement of the present system, so that they are not token consultations.
You have the debacle in Queensland at the moment which is very tawdry in the sense that there has been this controversy involving the appointment of the Chief Justice of the State. It can cause significant difficulty, but when you do have a political appointment, there may be some appointments made for political reasons, there may be appointments made for other reasons. I think the closest we got to a judge of the High Court was John Von Doussa, and the Commonwealth Attorney-General took that recommendation to cabinet but was rolled there which was quite unfortunate. It would be different if it was a candidate who didn't have the qualifications, but John's qualifications screamed from the rooftops, so it was most regrettable that it ended in this way.
You asked about the question of appointments of judges from one court to a higher court within the same jurisdiction. I have heard criticism of that practice in the past and it has been based on the supposed perception of rewards by the government. I do not subscribe to that view. The thing that has encouraged me is the fact that we have had some excellent appointments from the District Court to the Supreme Court. Perhaps in the criminal jurisdiction the District Court is a good training ground for judges because of the intensive exposure to criminal and civil trial work in that court.
I suppose there is an argument for a good civil lawyer doing a couple of years on the District Court before they go to the Supreme Court?
Yes, that's right, You serve an apprenticeship.
And that has happened?
Yes, Mind you, it's interesting that the present Queensland controversy involves somebody appointed from Magistrates Court to the Supreme Court and people are saying - I don't suggest that it's true - that he conducted himself publicly in a way in favour of the government. It certainly caused a problem over there.
Yes. There has been precedent in South Australia where a magistrate ultimately got appointed to the Supreme Court, I think – it might have been Justice Hogarth?
No. George Walters was a Magistrate, but then he became a Master of the Supreme Court and then was appointed from that position. I can't think of any other magistrate who has followed suit. In Tasmania, Sir Guy Green served as a magistrate and was then appointed to the Supreme Court as Chief Justice. He later became governor of Tasmania.
And finally, we could keep going for a long time, but I think we probably do need to bring it to an end. You have been involved in some of the eventful and significant criminal trials in South Australia, murder trials. I think one of the von Einem one’s and also I think Snowtown?
Yes I dealt with one of the Snowtown defendants but he pleaded guilty so I simply sentenced him. It did mean that I had to read the dreadful evidence in that case in order to be able to sentence him.
Obviously because your background was that for a time you were a very senior prosecutor, you've probably seen it all, or at least thought you'd seen it all. But is that one of the more arduous duties of a Supreme Court judge? Presiding over some very, very nasty trials?
Yes. I suppose it helps if you have become battle hardened in your career. I think that the people in far more jeopardy of being affected in these cases are the jurors. The jurors have quite often never heard of anything like this except reading it in the newspapers and they have to sit through some dreadful evidence, in some cases dismembered bodies, multiple killings, terrible sexual cases. My sympathy is very much with them. Judges are like surgeons, that is their work and it is amazing the extent of detachment that you get after a while. You don't really think about it because it’s been so gradual. That doesn't mean to say that you don't have cases that worry you. I was involved, just before I retired, in a case that the media described as the house of horrors case and there were little children in that case who were tortured and virtually treated as slaves. It was one of the most distressing cases I have experienced and that did have an effect on me and it would have had an effect on anybody. In that case an experienced doctor who was giving evidence in the case broke down herself in the witness box when she was describing the injuries. There are some cases that are just so bad they will affect everyone. But I repeat, that whenever I think of these cases I tend to think of jurors who have to sit through them and I think that it underscores the magnificent contribution to the community that jurors make.
Alright. Is there anything that I have seriously omitted?
No, you've cross-examined me uphill and then down dale, John.
Very gently I trust.
Alright. Well thank you.
Thank you very much John.