ORAL HISTORIES INTERVIEW
The Honourable Brian Martin AO QC
This is an interview with the Honourable Brian Martin AO QC, by Lindsay McNamara, and the date is January 31st 2019. Brian, can we start with your full name and date of birth?
Brian Ross Martin. Second of September 1947.
Where were you born?
I think in St Andrews, but I’m not sure. Anyway, Adelaide.
Your parents’ names?
Keith and Neeta.
Where did you grow up?
I grew up at Oakbank, or on the Oakbank–Lenswood road, about a mile and a half out of Oakbank, on an apple orchard. My father went up after the war, started from nothing, built it up. Built the shed in which we started living. I was very lucky.
I’ve got an older brother and an older sister.
What are your memories of growing up on an apple orchard?
Well, it was a lot of fun. We rode horses. I could walk the hills in those days with a rifle under my arm — I suppose I could get prosecuted now; might be a time limit on it — shooting rabbits. It was real country in those days: dirt roads, mud. And we took bodies off old cars and raced them around the orchard.
Where did you go to school?
Oakbank Area from years one to ten. They didn’t do Matric in those days, and Dad was smart enough to know I wasn’t going to be an orchardist. So, he sent me down to Adelaide High for years eleven and twelve (or Leaving and Leaving Honours, as they were known), and that was a good experience too. It was a top school.
So, the apple orchard wasn’t on your radar. Why did you decide to study law?
I had no idea what I wanted to do when I completed Leaving and matriculated. No idea at all. There was a vocational guidance centre somewhere in Adelaide. Dad took me in, and the man said, “You’d do very well in the army.” Now, I’ve got nothing against the army, but I walked out of there shaking my head. That was not going to happen, and in the end, I did law for something to do. I just thought it might come in handy. I didn’t understand a word of what was being said in the initial lectures. It really wasn’t until third-year law that I started to think this might be interesting. Then first year in articles, which was, of course, the last year of the study, that’s when I suddenly realised I really enjoyed it, once I was in the office.
Do you recall your cohort at university?
Coming from the country, I was a bit of a loner initially, but Rod Burr, Dale Carmen and David Nicol. There was a group of us — quite a large group — that started in 1965.
And did you stay in contact with any of them?
Oh, I see them from time to time, just generally.
Where did you do your articles?
Wallmans. Wallman and Partners, as it was known. John Mangan was my Principal. I was lucky, because I played football and he was a vice president at Sturt, so there was a line in there. I was very fortunate. Len King was there, Tom Hutton, and Ern Palmer, Peter Allan, John, of course, Bob Porter, Bob Lunn. It was a terrific firm.
So you learnt a lot?
Hell of a lot. We had to do the rounds, and we had to get to know the people in the various offices, the LTO and all of that. It was a great grounding.
I read an interesting story about how you met your wife, Leigh. Can you slip that one in, because I remember it was during your articles year?
Well, I was waiting to be interviewed for the position of articles when this very attractive blonde came down the Waymouth Street footpath, and I wasn’t backward in taking notice of attractive young women in those days. She turned into the building where I was about to go, and I thought, That’s interesting. Anyway, it turned out she worked in Wallmans, and ultimately she ended up as Len King’s secretary, and that’s how we met, but she wouldn’t talk to me for the first few months. I was a footballer. She didn’t want to know about that, but once that ice was broken, it moved fairly quickly.
And you’ve been married for how long now?
Forty-nine years. It will be fifty at the end of this year.
Wow. That was a good chance meeting then.
It was. Absolutely.
So, you were admitted in 1970 and you went and joined the Crown Law Office. Is that correct?
No, I stayed at Wallmans. In fact, they admitted me into the partnership in 1971, but in 1974, lying in bed one Saturday morning — I never read the positions vacant — there was an advertisement for an Assistant Crown Prosecutor. I looked at the people in the firm, the extraordinary amount of work they pushed out and the toll it took on them, and I thought two things. One, I really didn’t want that sort of toll taken on me, because I’d built up a large number of files pretty quickly, and secondly, perhaps more importantly, the job of Assistant Crown Prosecutor, doing the court work, appealed to me.
What was it about court work that was so appealing?
I don’t know. I just enjoyed the preparation of criminal trials, and I enjoyed being in court, working with witnesses, juries and judges. Who knows why that actually appeals to you? It just did.
So, you joined the Crown Law Office. How long were you there for?
I left in ’85.
And you rose to the ranks of Crown Prosecutor in 1982?
Obviously you were the head prosecutor for the State, so what were some of the memorable cases?
Look, I was extraordinarily lucky. For quite a bit of that time, Len King was the Chief Justice. Some good cases came my way and some fantastic legal issues arose from time to time. In the later years, the prosecution of Emily Perry was a fascinating exercise.
For what reason? The forensics involved?
Just the whole concept. Somebody accused of poisoning their husband and other husbands or relatives, and the forensic exercise of putting all that together, coupled with the fact that the alleged victim, Ken Perry, did not believe she had tried to poison him and ended up as a witness for the defence. And he was not beyond being quite voluble, outside the court sitting times, about what was happening. That in itself made life interesting. The whole thing — and the law surrounding what was then called similar fact evidence — it was a great exercise in itself, and, of course, we ended up in the High Court, and that was terrific. So that was one case that stands out.
The other is the prosecution of Von Einem and the whole scene around the issue of what was happening in parts of our community that we didn’t know about. And the other deaths that were all sort of related in general discussion. So, for a different reason, that was a case that stands out.
Did you feel a lot of community pressure during the time of that case?
I don’t know about community pressure. There was certainly pressure, and I guess the kids would tell you, my children would tell you, that Dad got a bit — what’s the word? — a bit over-cautious about where they were, what they were doing, and how they would look after themselves. It opened the eyes of even experienced detectives to a side of our community that really hadn’t been seen in the public eye. So, from that perspective, and certainly because it was high-profile, there was pressure. No doubt about that.
Were you also the lawyer prosecuting the death of Derrance Stevenson: the body in the freezer case?
Yes. David Szach was charged with that. It was difficult for its own reasons on the forensic side of things. But it wasn’t a nice exercise to be involved in, because Derrance and I, we were not close friends, but we knew each other quite well in the context of the law, so that wasn’t a nice exercise. But it wouldn’t have been nice for Kevin Borick, who defended Szach, either, for the same reason. But it was a case where you just had to be very objective and careful about how things were done.
Forensically that was, again, a very interesting case, and the concept of the freezer and so on just added to that element. Forensically, that was a difficult matter in itself. And then there was the business of — on the Crown case— that Mr Szach had taken off to Coober Pedy by car, and made record time up there, and we had to visit Coober Pedy to interview witnesses. All that sort of thing made that quite a different case again.
And the life of the Crown Prosecutor. Did you find yourself having to be a bit separated from the rest of the legal profession in Adelaide? Because it would have been much smaller back then. You all would have known each other.
No, I don’t think it separated us, because we were in the Crown and not part, if you like, of the general profession. I don’t know whether that feeling exists now. There was a tendency to keep to ourselves, and to mix, within the work sense, the defence bar, the defence profession. So, yes, we were a bit separate from the rest of the profession, but we had close contact in those days with the defence profession, because they were smaller, the number was smaller. They were doing those sort of cases, and there was actually good camaraderie between prosecutors and defence. I don’t know on that today. I’ve lost touch with whether that still exists. I suspect not to the same extent.
Did you read about the cases in the media? Did that add pressure?
No, I don’t think so. I guess that puts you on your toes, but I don’t think it added great pressure. Maybe it did. It’s a bit hard to remember now. Memory’s a bit convenient from time to time. It probably did in the Von Einem case.
You enjoyed the work, though, at the Crown?
Oh, hell yes. You just had to do it. I always tried to keep the family first, but inevitably the time with the family suffered. It depends on your individual approach. I wanted to get things right. I would spend hours handwriting opening and closing addresses. I would be sitting at home. I’d write a page that didn’t work and screw the page up, throw it on the floor, and I could be, by the end of it, surrounded by scrunched up pieces of paper. My wife walked into our daughter’s room one day, and there’s our daughter scribbling on a pad, tearing the piece off, and throwing it on the floor. My wife said, “What are you doing?” And she replied, “I’m working.” There you go.
That’s how you worked. So, a perfectionist?
I don’t know about a perfectionist, but I wanted to get it right, and as I keep telling young kids in the law, if you do your preparation it falls into place eventually.
In 1984 you were appointed Queen’s Counsel and then you went to Murray Chambers. What prompted the decision to go into private practice?
I think I’d had enough at that stage. When I say “had enough”, what I mean is you reach a point where, not that you’ve done it all, but you’re doing things you’ve been doing for so long. I was looking for a change at that stage. I was ready for a change, and the opportunity to go to the bar came. Scary, but —
In what way?
Well, because I’d been in the Crown for so long, and not out in the wider profession. So was I going to get cases from people in the wider profession? Would the defence bar, or the defence legal profession, brief me, because I’d been prosecuting for so long? All of that. And it worked out well. But I was ready for the change. Even then, sometimes I would get a brief for the Crown, but I was briefed for the defence, and it gave me the chance to get into civil matters, and I enjoyed that.
How did you find the swap from being a prosecutor?
It actually didn’t worry me. It didn’t worry me at all, but I enjoyed the change to, particularly, doing civil work. Medical negligence and things like that. I really enjoyed that.
In 1991 you went to Perth. You were a Senior Counsel with the WA Inc. Royal Commission. So the links to Perth? Did that happened by chance?
Well, I was sitting in my chambers, very happily getting on with life, planning a trip to Melbourne to see The Phantom of the Opera, when the phone rang, and it was Kevin Parker, who was then the Solicitor General. We had met previously, and through my work as a Crown Prosecutor, I had got to know their Chief Crown Prosecutor over there. And it sort of came about in that fashion. “Do you want to spend a year or so in Perth?” I think he said a year, so I immediately doubled it, and the answer was an obvious “Yes”.
So how long did you end up being over there?
Virtually two years.
Two years. And did the family go with you?
Leigh came over, and we were extremely fortunate. They put us up in a lovely apartment, and the kids spent a lot of time over there, but the kids were at university and so on, so they stayed at home and looked after the house. The neighbours did say they knew when we were coming home for the weekend, because the mower would be out and everything would be happening. That was an interesting exercise for them, anyway.
Well, you came home eventually — back to Adelaide. You were appointed Commonwealth Director of Public Prosecutions. Is that correct?
Yes, in ‘97, I think.
In ’97. Can you tell me about your role there and what sort of work you were doing?
Sorry, I’ll just go and check the date. Yes, it was early ’97. Well, that was dealing with all the Commonwealth Prosecutions around the country. The federal office was in Canberra. The largest office was in Sydney. I spent a lot of time travelling around the country, and that was a great time. Fantastic time. I finished after two years, when I accepted the call to be a judge, and I regret that in many ways. I was doing cases around the country in different appellant courts. There were a lot of High Court cases, and just dealing with an office of 400 odd people around the country. The logistics of that, the management exercise… So that was a terrific time.
Did you ever think you would be looking after that many people?
No. It had never crossed my mind. I have always taken the view that if you do your job well, the opportunities will open up. I’ve never looked ahead and said, “I want to do that,” or, “I’m aiming for this, or aiming for that.” I hear about people who say, “Oh, you’ve got to have a plan and you’ve got to have an aim,” and all this sort of thing. I think that’s overrated. Get your head down, do your job well, and the opportunities will come along. It doesn’t mean you don’t look around for opportunities, but that’s never been an aim. This was just one of those, just like the Royal Commission popped up out of nowhere. So did the DPP situation.
And you mentioned before a sense of regret in leaving that position, because you enjoyed it so much.
I did. I felt that two years wasn’t quite long enough for me to have put into that office what I think I could have put in, and they’d been very good to me, so I felt like I was deserting them a bit, but when the call came, asking me if I would accept an appointment, I had to sit down and think very carefully about where this was all going. As a DPP, you can put governments off very quickly. Both — All persuasions, I should say. Not just both now. All persuasions. You can put their noses out of joint and that’s the end of whatever. And it was an intense time in the sense of travelling so much. It’s all very well to get on the front end of the plane, but that gets very tiring, and it meant I was leaving my wife at home all the time. So you put it all together and you think. My wife tried to talk me out of accepting the position.
Yes. She said, “You’ll die on the bench.” I said, “Hang on. I’m not ready to do that yet.”
Well, you weren’t very old when you accepted the role.
No, I wasn’t that old, but still, I wasn’t one of the youngest. But at the end of the day, I decided that was the right thing for me to do. For our future as a whole.
Did you ever think that lad who studied law because he didn’t know what else to do would end up being a Supreme Court Judge?
No, this was all nonsense. I used to say to Leigh, “I don’t have the intellectual capacity to do this,” and she said, “Yes you do.” She was the rock throughout all this. And no, that was the furthest thing from my mind ever.
Tell me about the transition to being a Supreme Court Judge in 1999? Did you feel prepared for the position?
I don’t know about prepared. Because I’d spent so much time in court, I was comfortable with the procedures. I don’t know that you’re ever truly prepared, in that sense, but if you feel comfortable with the procedures — John Doyle was very good. He sat me in the Appeal Court, first up with him and someone else — I can’t remember who — and that was, in itself, very comfortable, because I didn’t have to run the court. So, it gave me an opportunity to settle in and sit there and listen and so on. There will be members of the profession who will tell you I never listened, but early on, I certainly listened. No, I didn’t feel the transition was difficult, because I’d spent so much time in court over the years.
I guess one of the high-profile cases you presided over was Snowtown.
Can I just go back to that transition? The one thing I did have to concentrate on was that I was no longer running the case. I didn’t have to worry about whether that particular counsel was asking the right questions or not, or whether they were making the points they should. I was there to sit and let them run the cases. So that was a change.
Was that difficult for you, though, to sit there and say, “Why didn’t you ask this?”
No, it was actually, in a sense, quite relaxing from that point of view. But as time went by, as plenty will tell you, I was never one to just sit there. If I thought they hadn’t asked questions the jury would want to know the answer to, then I’d ask the questions. That’s my approach.
What about writing judgements? When you spoke before about writing your opening and closing remarks, how did you go with judgements? Was there a big pile of paper next to you at that time?
I graduated from handwriting to dictating, so my secretaries over the years have all been brilliant. I would do the draft, then there will be a redo, and a redo, and a redo, in order to get it into the state I think is right. I was probably influenced to some degree by Andrew Wells. We’re now going back into the ‘70s, and I remember him talking about how he would prepare the writing and how he would spend hours over particular sentences. Maybe that influenced me, because I was young in the law and just the concept of getting it right — getting the words right. Who knows? I just suddenly remembered that.
We didn’t discuss your mentors in your early days. Where there any others you looked up to?
My principal, John Mangan, taught me how to write letters and to think in detail. Eventually, I wrote letters like he did, and he still corrected them, so in that sense he was a mentor, but the others, by example and so on, were Len King, Andrew Wells, George Walters — In those days, we used to talk to the judge, not as much to Len King, because he came in later, but in the early days, Andrew Wells and George Walters. I learnt from those sort of things. They were very good.
But there were a whole lot of other judges who set examples — Roma Mitchell was a fantastic example of how you do things, get to the point. Don’t mess around. Get to the point. Get on with it and do it. I heard her sum up in a rape case one day. I reckon it was about twelve minutes and she got everything right. That was it. Out you go, ladies and gentlemen. She had it right. She knew how to get to the point. And so did some of the other judges. So, she was another example. It was just the examples they set that you could follow.
And create your own style, as well, along the way.
Yes. I don’t know whether you create that or whether it just comes, but you work on things you know you shouldn’t do or say. I remember a judge saying to me, “You keep saying there is no way in the wide world, or some such similar expression. Just watch that.” Little things like that, and suddenly you realised you’ve fallen into the habit of using a particular expression. Don’t do it. So, you learn that way. You either get taught or somebody says to you. So, yes, you learn from those people.
Let’s go back to when you were on the Supreme Court here in South Australia. The Snowtown bodies in the barrel. That was obviously one of the bigger, longer, more disturbing cases.
That was undoubtedly the hardest case I’d ever been involved in, either as a barrister or a judge. There’s no question about that.
Can you explain what made it so different?
Well, it was a case with extraordinary public profile. It involved twelve murders in one trial. The details of various aspects of it were both graphic and traumatic. Very distressing. The material was distressing. It’s a huge mental challenge in being able to come to grips with and understand the sheer volume of material. There were logistical challenges surrounding the technical side of how this would all be presented, and how the court would handle well over a thousand exhibits and all the material that was there. There were logistical challenges with getting a jury, and how we would deal with a jury.
In fact, coping — helping the jury cope with a trial of that magnitude, notoriety and graphic detail. All of those things come together into one large case, which was extraordinarily difficult, but you just had to go day by day. So, it took up eighteen months of my life, and nine months of that was with the jury.
That’s a big ask for a member of the public.
It’s a huge ask, and we had to go through a special exercise with two large panels, brought in separately, explaining to them what was happening and so on, sending them away to think about their position, and then come back again to talk to me confidentially about whether they wanted to — could or couldn’t — sit. So, eventually, when they did, you had to deal with their lives. They had to know and understand that their lives went on — their ordinary lives, as interrupted as they were — and allow them to do things. For example, if they had the granddaughter’s first sports day on a Friday afternoon — I don’t think anyone did, but I’m using that as an example — they had to know that they could ask me, “Look, this is an important one, something for the first time. I want to see it. I need to see it.”
And I would say, “Yes. We won’t sit Friday afternoon.” So that’s when they had these special things — trips planned and so on — within the proper limits, because the odd half-day off here or there was not going to affect how long the trial took overall. We made it possible.
So, you feel like you had some rapport with the members of the jury.
I’d like to think so.
They gave a lot of their life for that trial.
They did. And I tried to keep, at times, the sense of humour. There’s always been a debate in court — in the legal profession, I should say in the judiciary more than anything — about whether you can show a sense of humour, because there’s a danger people will think you are treating it lightly. Well, in Snowtown, there was never a danger anyone would think you were treating anything to do with that case lightly. But it was important, in order for people to be able to cope with this. It was hard enough for the people in the profession, who’d grown up with this sort of thing and come, to some extent, inured, but it was extraordinarily difficult for the jury.
So, it was important they understood they could have a sense of humour. I told my associates there would be times when they would be laughing at things that they would think afterwards, “Oh, I shouldn’t have laughed at that.” Black humour. It’s like doctors who have black humour when they’re operating in terrible circumstances, and it’s the only way you survive, mentally. So that was a challenge with the jury, and I would like to think we had a good rapport. They certainly understood things like the football.
There was one day, toward the end of the trial, when there was a showdown between the Crows and Port, and when the jury came in it was perfectly apparent they had organised themselves to show the colours of each team as they sat in the jury box. Perfectly apparent. And so, it showed they were, in that sense, relaxed, and that’s the way in which people can concentrate. If you’re sitting there tense and distraught, you cannot concentrate on what’s going on, but on the other hand, if you’re relaxed — still treating it seriously, but relaxed — you can concentrate on what’s going on, hear the evidence, understand it and take it in.
So, you have great faith in the jury system?
I do. You can take a case like that. They acquitted of one count, and I said to them, which is an unusual thing to do, but I said I agreed with their verdicts entirely. Their verdict of acquittal was, in my view, correct. So, it showed they weren’t overwhelmed by the totality of it, or they hadn’t taken such an adverse view they were going to convict of everything. They worked it through. They brought back the correct verdict. If you’ve ever sat through, in one way or another, a long, complex fraud case, you’ll see the jury know what the documents are. They know what the people are talking about. I’ve known cases where Counsel have got themselves mixed up in saying, “I want you to look at a particular document,” and a juror’s popped up with, “No, you want document such-and-such.”
So they take it very seriously.
They take it seriously, and I’ve got great faith. When I look back over the years, I can recall some cases where I would have said they brought in a bit of a rough-justice verdict. It might be sympathy for an accused, particularly, I think. But I don’t know. I can’t recall a case where I’ve said, “That is utterly and totally perverse.” It might be a verdict that was not quite in accord with the evidence, but you could understand why.
So, tell me what it was like for you when that trial finished, because, emotionally, that must have been quite draining.
Look, I think you’ve got to ask my wife about that, but it was intense, because I had to keep up with everything and be ready to address the jury. My summing up took a number of days. So, there was a huge volume of material. As more evidence had come out, I’d be trying to slot that into the summing up in various places. And my secretary at the time was an enormous help. From time to time I would have trouble remembering where in this thousand-page draft I’d dealt with a particular issue. She would find it. So it was all-consuming in that sense.
But people, like my friends, wouldn’t bother to ask me. They knew I’d say something if I wanted. They wouldn’t ask me how it was going. They knew it was all-consuming. But at the end of it — I really can’t remember any particular feeling at the end of it. You don’t necessarily get that. I mean, there’s a sense of relief — always, I guess — but I don’t recall any particular amount of it there.
Let’s move on to 2004, when you were appointed the Chief Justice of the Northern Territory. How did that happen?
That came out of the blue too. I was just sitting in the car one day when the phone rang, and there was the Chief Executive saying, “We’d like you to come to the Territory.” Absolutely the last thing I would have ever expected. I didn’t even know that the Chief up there was retiring and that, for various reasons, they wanted somebody from outside.
Why do you think your name came up?
Oh, I don’t know. I’ve got no idea. They obviously were casting around.
What was your initial reaction to that phone call?
Well, I was flabbergasted. I was honoured, and I thought, “Hell. Do I really want to go and live in the tropics? I like cool weather.” And there were some personal things which were complicated, and, obviously, it’s a great privilege to be Chief Justice. So, there was all of that. The whole lot was going through my head. I didn’t think, “Oh, no. I could never do that.” I was quite positive, but there were issues that I had to deal with. In the end, we went and had a look, and the answer was yes.
Tell us about those years from 2004 to 2010.
Well, that was a great time. We, my wife and I, had a terrific time up there. I’m very grateful for that period. It was a hell of a learning curve for me, and when you become a Chief Justice, there’s another element, if you like. It’s not just judging. I used to call it the CJ stuff.
By that, do you mean the administrative side of things?
Well, there’s the administrative side, but there are all the other aspects — you’re also dealing with the other Chief Justices. You’re looking across jurisdictions, and all of that’s fascinating, and you’re trying, at the same time, to lead the court. So, all of that was very interesting and challenging in its own right. The Territory, of course, has got its own difficulties, and trying to get to understand all those issues and then to sit in a jurisdiction where there’s this interrelationship between the indigenous cultures and their ways of doing things with the law of the Territory and the law of Australia. In itself, it was fascinating and, at times, difficult.
And visiting some of the communities, talking to the people. All of that made it an extraordinarily interesting time, and we — I say we — my wife and I both enjoyed that time very much.
Did you learn a lot about Aboriginal law during your time there?
There was a lot of learning to be done. I didn’t learn about Aboriginal law detail. I didn’t study it in that sense, but you learn about the difficulties attached to some areas, in particular Aboriginal law, because you’ve got to remember it’s not one law and the interrelationship with the facts of particular cases. So that area of the law: facts of particular cases, retribution, and all those things. The interrelationship, and how it plays, is obviously something you’ve got to learn about and understand. I got a very sharp lesson in all of that when I sat under a tree and dealt with one particular matter, where, at the end of the day, I got the balance wrong between the moral culpability of the particular offender, by reason of his beliefs, borne out of his culture, and his understanding of the law.
And the other side of it: the deterrence and the punishment and so on for committing a particular crime. I got the balance wrong, and I’ve since admitted I got it wrong.
Are you able to tell me what it was?
It was a man charged with unlawful sexual intercourse with a child. The child had been promised to him, and the grandmother of the child told him to take the child. When I imposed the sentence, I got the balance wrong, as I said. People keep reporting it as a case of rape, but it wasn’t rape. I was presented with the facts. The facts and the plea were unlawful sexual intercourse with a child. He was probably one of the last people where I would have accepted, and I did accept, that he did not know what he was doing was wrong under our law, because he believed she’d been promised and what he was doing was proper under the particular Aboriginal law of the time. The grandmother thought so too. She told him to take the child. So, that was a very sharp lesson in the need to get the balance between the two right. It also highlights some of the difficulties. Now, that should abate over time, because today, it would be very surprising to me if there were any who do not know that, under white-man’s law, as they call it, such conduct is not acceptable. So, the whole time as Chief Justice was of great benefit to me, and it expanded my horizons and education absolutely.
Never too old to learn, obviously. And, of course, we probably should mention the Peter Falconio case that you presided over. That obviously had intense media coverage.
Well, it was intense media. The absence of the body. The whole thing. The outback, the middle of the night, and the fact that he and Joanne Lees come from overseas: the international media attention. That was, for those reasons, very interesting.
Are there some achievements as Chief Justice that you’re particularly proud of?
I don’t think it’s appropriate to talk about achievements as Chief. I’d like to think I did a good job while I was there and, as I said, if you do your job well, then things will flow, not only for you but also to put the court in a good position. If the court does a good job, then that helps a community indirectly. So, I don’t think it’s appropriate to talk about achievements.
So you left in 2010. That wasn’t your retirement though.
Well, I said I was retiring. I resigned as Chief Justice. I’d had enough by then. There is a high level of involvement in alcohol-fuelled violence in the criminal courts, and most of it is criminal law work. I’d reached the point where I’d had enough, I think, at that stage, of it being full time, and being in charge of the court full-time as the Chief. I didn’t envisage I would disappear from law entirely, but I needed a change. And as much as we enjoyed living in the Territory, climate-wise it doesn’t suit me, and I would never retire there, so there was a pull to come back in South Australia.
You did spend some time later, though, back in WA?
So what have you done since?
Well, in 2012, I was appointed acting judge on a trial in Western Australia. Lloyd Rayney was charged with murdering his wife. She had been a court registrar, so they needed someone from outside, and I got the call. I did the trial by Judge alone. In the meantime, I had done some, effectively acting, work, in Alice Springs, and I think I’ve been to Darwin, so I was quite happy to do that from time to time. And virtually every year since I’ve done a month of the circuit in Alice Springs. But in 2012, I did the Rayney trial.
Judge only. How was that?
Judge alone. It wasn’t the first one I’d done, but that’s a difficult area. It’s the opinion of one person only, as opposed to twelve people from a community, but there’s a need for it in certain cases. I can understand why, in that case, they chose trial by judge alone. I think it’s a good thing. It should be there for the cases where it’s needed. So that is a difficult exercise in itself, but interesting, again, and I enjoyed that, from the challenge point of view. Then, in 2014, I took over from Kevin Duggan, doing the Eastman Inquiry in the ACT. Eastman had been convicted murdering the Assistant Police Commissioner, and he’d spent nineteen years, eighteen years in gaol, having been convicted, and there was an order made for an inquiry into that conviction. Kevin Duggan commenced it, but then he potentially had a conflict, because of one of the possible witnesses, so they asked me to take over. Again, for different reasons, that was a fascinating exercise.
What was the outcome of that enquiry?
Well, in the end, my job was to recommend to the Full Court what should happen. I recommended his conviction be set aside, because there’d been a miscarriage of justice due to problems with forensic evidence in particular. I was of the view that, after that length of time, there should not be a retrial. The Full Court decided otherwise. The Full Court set aside the conviction but decided there should be a retrial, and fairly recently he was acquitted on retrial. So that, again, was a very interesting exercise, and for the last couple of years I’ve been an acting judge in Tasmania.
You’ve gotten around a fair bit of Australia in the time you’ve been on the bench.
One way or the other I have, and being in different jurisdictions is very enjoyable. There are different practices, different people. As I said, when I was Commonwealth DPP, I was dealing with different judges and different people all around the country. As a judge now, I’ve got different counsel appearing before me. Different practices, different laws, to some extent. All of that makes life interesting.
And you must see good practices and not so good practices before you.
Yes, and no doubt practitioners see good judges and not so good judges. Of course, that’s right. That’s the fact, and it’s always really enjoyable, wherever you are, to get a good judge who knows what’s going on and does it; to get good counsel, and to sit back and listen to them. That’s really good. And there are good ones everywhere. There really are.
What would be your best piece of advice for a young lawyer just starting out?
I don’t know that I’ve got any best piece of advice. Well, it’s a hackneyed saying, but you’ve just got to do the preparation, and it’s true. It is just so true. If you do the preparation, things fall into place. The important points fall into place. You can suddenly discover the strengths and weaknesses of your own case or the opposition case. As part of that, one of my favourites is that you should prepare a chronology. Always, always have a detailed chronology from day one right through, and cross-relate your witnesses and your documents, and assign them to that chronology. And when you look at it and work through things chronologically, that’s when the points open up for you and you get a true picture of what the case is about.
We probably should mention that in 2016 you were nominated to be a Royal Commissioner into Juvenile Detention in the Northern Territory and decided to stand down a few days later. I think that was probably media attention on that at the time.
There was a lot of media attention. No doubt about that.
How difficult a decision was that for you?
In the end, I was very clear about the decision. It was difficult in one sense, because you don’t like to take something on and then say “No”. But very quickly, it became apparent to me there were sections of interested parties in the Territory who felt strongly that I was not the appropriate person. I don’t agree with them at all, but the importance of the Royal Commission was such that you didn’t want to see at the end, “Oh, well, we told you at the outset this person would be biased, or whatever, and we’re not going to take any notice of this.” It was too important to have it derailed in that fashion.
So, I decided, because it was so quick, this turnaround, it didn’t have any practical impact on anything. Nothing concrete had been done. It was within a few days. It was not a practical impediment to anything, but the air needed to clear, and it wasn’t clear. So that was the first thing. The second thing is that my daughter was being dragged into it, and I was not prepared to allow that to happen. So, in the end, the decision itself wasn’t that difficult. I just woke up in the early hours of the morning and I knew I should not do it.
That was what you had to do.
Yes. As I said, apart from people trying to make political capital out of it, it was of no practical significance whatsoever to anybody. It didn’t impede the future conduct of anything.
On perhaps a happier note, in 2011 you were awarded an Officer of the Order of Australia. Tell me your thoughts when you found out.
That was a bolt out of the blue too. I mean, that’s a positive reflection on a hell of a lot of people who helped me one way or another, either directly or indirectly, or by example over the years. That’s what that amounts to, and it’s always nice to be recognised, there’s no doubt about that. I was just doing the job, and there are an awful lot of people who’ve helped me along the way, and first among those is my wife. So, it’s a reflection on their contribution, as much as anything, but as I said, it’s nice to be recognised.
Let’s go to life outside the law briefly. You’ve obviously had a strong passion for football over the years, as a player and in administration.
Oh, well, actually I was a lazy player.
But you still managed to get a couple of premierships under your belt.
I only played in two. Footy was very good to me, but it always came about third on the list.
This was with Sturt?
Yes, when I was playing, it was always third on the list. Then I stuck around in administration for Sturt for a while, and, of course, I was the Commissioner. I’m not sure who to thank for that. I think they were standing around the bar one night, and they said to me, “Take this job on.”
This is SANFL we’re talking about?
This was before there was an AFL. And then I was on the board for the Crows for five years, and that was all very interesting.
Because, when you were Commissioner, you started up the trial-by-video?
I suppose that’s one way of putting it. Things were being filmed in those days, so they’d show me the film if it was of any assistance. That was actually quite an intense time for the family, because people got very, very emotional, and the kids copped a fair bit over that. There were phone calls. We had a shot fired at Footy Park — bullet put through the window.
Over a decision you had made, or pre-empting a decision you might make?
No, about decisions I’d made, I think. And our rubbish bin and letterbox were burnt down. So it got a bit intense.
So that happened when you were a Commissioner for the football, but you were presiding over cases and that never happened?
No, it’s interesting, isn’t it? I’ve got a view that robes and wigs for judges should be retained, because it signifies that when you’re sitting as a judge, it’s not me personally. It is the institution of a judge, and if people accept that it’s the institution, the judge is there doing the job according to law, then it removes the personal side of it. Sitting as the Commissioner for the SANFL was very personal, so quite different. In fact, over the years, I think experience has shown that the ones more likely to be threatened are the defence counsel, when their client’s been convicted, than prosecutors or judges, but there have, of course, been some terrible cases of attacks on judges. Fortunately, in this country, they’re rare.
And your involvement with football. Does that continue?
No. I follow the Crows, but I’m getting into the older stages now, and I find there are aspects of football these days I’m not overly impressed with. Thirty-six players running from one end to the other and things like that. Rolling packs. I just think football’s lost its way a bit.
You think they should be back holding their own positions?
Not necessarily, but just the way it’s played. It’s not so bad on telly, but when you’re at the ground, it doesn’t have the same appeal it used to have. We still enjoy it. I still enjoy it.
Any other interests?
And family? You had two children?
And how many grandchildren do you have at the moment?
Well, we’ve got three — as my wife would say, three that share our genes as well as our lives, and another three that share our lives but not our genes. That’s because of partners. But the main attention is on the three youngest, and that’s fantastic. I play golf, or I try to. They’re the main interests. Travel, if we can. From time to time.
So, looking back on your career, what would you like to think your legacy would be within the legal profession?
No, I don’t think of it in terms of a legacy. As I said, you just do your job well at the time, and that helps the whole system. If the system is operating well, then that’s good for the community, and if you’re part of that and you’re helping the system run well, then you’re doing your job. So, it’s not a case of legacy at all. Not in that category.
On that note, I’d like to thank you so much for your time and for sharing your thoughts.