None of this was controversial. The ex-judge was Tom Bathurst, most recently chief justice of New South Wales. His confidant was the state’s attorney-general, Michael Daley. And the high-profile figure was Kathleen Folbigg. Twenty years after being convicted of suffocating her four children, she was released from a Grafton prison.

Asked when Bathurst’s actual report would come out, Daley replied, “Without giving away any confidences, I think it would be appropriate to say that it will be weeks and not months.” The report was published last week, more than five months after Folbigg’s release.

Bathurst is the latest in a very lengthy string of judges who’ve ruled on Folbigg’s murder convictions. Six appeal judges, rejecting her first two appeals, all expressly said they agreed with the jury’s verdict. Three High Court judges (who had all once sat on the same appeals court) refused a further appeal, adding that the prosecution evidence was strong.

Just four years ago, in a different official inquiry, a former judge (previously head of a different New South Wales court) not only declared Folbigg guilty as charged but said that the further evidence he had heard “makes her guilt of these offences even more certain.” Two years ago, yet another appeal panel found ample basis for their former colleague’s ruling.

That’s twelve judges and one former one who’ve ruled Folbigg’s conviction safe, with no dissenters or doubters. Until now.

As he foreshadowed to Daley, Bathurst has told the state governor (a former head of the appeals court who had already pardoned Folbigg) that “there is reasonable doubt as to Ms Folbigg’s guilt” of each of her alleged crimes.

What created the doubt, according to Bathurst’s report, was new evidence that emerged just as the previous inquiry reported. Rather than supporting the finding that Kathleen Folbigg smothered her children, it showed that her two daughters shared a gene that could kill them. Other new evidence firmed up the likelihood that one of her son’s multiple afflictions also had natural causes. Bathurst accepted most, but not all, of this expert evidence.

Also presented was fresh psychological evidence about how to read diaries written by people under stress. Folbigg had written, for instance, of her husband’s “morbid fear” of their fourth child dying, “Well I know there’s nothing wrong with her. Nothing out of ordinary any way. Because it was me not them,” adding “I’ve learnt once it’s getting to me to walk away… With Sarah [her third child] all I wanted was her to shut up. And one day she did.” Bathurst said that these, and similar entries, were “evidence of self-blame” and concluded that the diaries contained no “reliable admissions of guilt.”

But it’s not only evidence that changes with time. As academic Emma Cunliffe details in her masterwork on Folbigg’s case, shared assumptions about multiple infant deaths have shifted with the decades. Once, those deaths were attributed to sleep apnoea, but then New York police investigated a family whose experience had been presented as key evidence of that theory and came away with the mother’s confession to five infant murders. Unsurprisingly, maternal suffocation became the preferred go-to, until the doctor who coined the term “Munchausen syndrome by proxy” was disgraced for giving bad statistical evidence in homicide trials. Folbigg’s misfortune was to be tried just before genes’ and trauma’s stars rose as explanation for such family tragedies.

Another change is simply that Folbigg’s trial is now much less recent. As anger, shock and memories recede and anticipated confirmations — confessions, revelations, similar cases — fail to materialise, space opens up for murderers to be unmade in the public’s mind. (Folbigg has long had champions including, startlingly, Alan Jones.)

Given the myriad possible explanations for the late turnabout in Folbigg’s case, I’m content to put aside the less palatable ones — medical fashion, malleable opinion, multiple wrong judges or jurors, or error on the part of Bathurst himself — and pin it all on the fresh evidence.

But there’s a further uncomfortable fact that Bathurst, Daley and others never mention, and that I’m not content to let slide: Kathleen Folbigg was unfairly tried in 2003, something New South Wales’s judges have known perfectly well for at least seventeen years.

Kathleen Folbigg’s two-month trial nearly collapsed in its second week. The trouble started when a new lawyer named Annabel dropped by to watch the proceedings and immediately recognised one of the jurors. She phoned a friend to confirm that her boyfriend was on the panel and then asked, “Did you know that was the case I was working on?” Annabel had done her student training at legal aid and had helped to prepare Folbigg’s defence.

It belatedly dawned on her that her phone call may have worsened the situation. Still worse, her friend had been part of her uni study group and may have been there when she described her work on the case. Worst of all, she might have told the group her personal view: that Folbigg was guilty as charged but shouldn’t be jailed. She promptly told the trial lawyers everything.

Folbigg’s prosecutor was dismissive — jurors often hear others’ takes in high-profile cases — but the defence fretted that Annabel’s opinions may be given particular weight. The judge, loathe to act on mere possibilities, opted to put the juror on the stand. He testified that he knew Annabel and about her phone call to his girlfriend, but, asked whether he had heard any of the lawyer’s opinions about the case, replied, “None whatsoever.” He was returned to the jury room with instructions to discuss the case with no one, including his girlfriend.

Justice Graham Barr made many decisions in 2003 that have aged well. Crucially, he barred all of the medical experts from opining on the likelihood of four natural infant deaths in a single family, restricting them to discussing each child individually. Bathurst ruled that Barr’s take matched the state-of-the-art medical thinking two decades later, and disclaimed the stance of then prosecutor Mark Tedeschi, who likened the defence case to a person being “hit by lightning four times.”

Tedeschi repeatedly tried to inform the jury of another startling fact about Kathleen Folbigg: that her father had killed her mother. The prosecutor initially said that it “provided an explanation for why the accused may have smothered her children.” Later, he claimed that it explained how Folbigg’s self-description in her diary as “my father’s daughter” amounted to a confession to the murders. Finally, he argued that the jury needed to know the history to understand her discussions about it with her husband and, later, the police.

Barr knocked back each of these attempts in turn, explaining that “the risk of misuse of the evidence is so great that I doubt whether any direction can obviate it.” This year, Folbigg’s ex-husband Craig complained that her troubled childhood was scarcely mentioned in Bathurst’s inquiry. He urged that it should be put in the report to the governor as evidence of his former wife’s possible inherited traits, mental illness and consciousness of guilt. Bathurst’s report dismissed this “rank speculation,” instead listing Craig’s unreliable trial testimony as a further reason to doubt the jury’s verdict.

It is a tribute to Barr that the courts have identified only one mistake he made: giving Folbigg too harsh a sentence. On the morning of 17 February 2005, the first three judges to review her case upheld her conviction but lowered her sentence from Barr’s forty years to thirty, leaving her eligible for parole in 2028. “Any person who was properly informed, sensible and thoughtful” would see how her “tragic background” — which effectively left her an orphan — “explains to some extent, although it does not excuse to any extent, how the crimes came to be committed.”

Barr’s excellent judging was something of a misfortune for Folbigg. A fair trial means a fair verdict. Or so it seemed that morning. That afternoon, Annabel emailed legal aid with some bad news about Folbigg’s jury.

Two brief court judgements are the only public insight into the flurry of behind-the-scenes events kicked off by Annabel’s email from early 2005 to late 2007. Even the judgements that emerged are unusual, because courts typically cannot rule on evidence that emerges after (here, hours after) a convicted offender loses her first appeal. Bizarrely, a missing staple on her court file allowed an exception in Folbigg’s case.

Thanks to the missing staple, we know that Annabel’s email recounted how a juror she “knew” had told her that “one of the jurors had researched Kathy’s history etc on the internet” during the trial. A year-long court-ordered investigation followed. Thanks to the rules protecting jurors and their deliberations, the only public outcomes of that investigation are terse summaries of “two instances of potential irregularity in the conduct of the jury trial.”

One involved the fact that some of the infants’ bodies were warm when paramedics arrived. The jurors were curious about how long bodies stay warm, and one asked a nurse friend. Such inquiries are forbidden, but the court ruled that, luckily, what the jury was told — that bodies stay warm for quite a while — helped the defence.

The other irregularity was far more serious. A juror googled “Kathleen Folbigg,” read “several related sites” and told others what they said: that Folbigg’s father killed her mother when Folbigg was an infant. This discussion happened early in the trial, while Tedeschi tried and Barr refused to let the jurors know this very fact, blissfully unaware that their debate was moot.

The jury verdict would also be moot unless the court was “satisfied” that what the jury discovered had not affected their verdict. And here’s where the story took another turn.

Chief judge Peter McClellan explained the appeals judges’ take in a single paragraph:

Even though the appellant was the child of a person who killed another I do not believe there was any likelihood that a juror would reason that it was more likely that the appellant would kill her own children. The killing of a spouse may tragically occur in circumstances of the breakdown of a relationship or be occasioned by temporary loss of control accompanied by a violent and fatal act. The circumstances and motive for the killing are likely to be quite different from those which will exist if a mother has killed her own children. There could be no suggestion that the killing of the appellant’s mother by her father indicated any tendency in the appellant to kill her own children. In my judgment the knowledge obtained by the juror did not lead to a miscarriage of justice.

Judges Carolyn Simpson and soon-to-be-High-Court-justice Virginia Bell agreed without comment. The panel, satisfied that the juror’s research hadn’t affected the jury’s verdict, dismissed Folbigg’s second appeal and caused her to spend sixteen more years in prison.

There is no nice way to say this: what the court says here is wrong. It’s possible that the sheriff’s investigation turned up a quite different reason to be satisfied that the jury’s verdict was unaffected by the learning about Folbigg’s childhood, but the reason the court gave — that the jury would have simply shrugged and ignored it — is ridiculous.

Don’t just take my word for it. Take the word of prosecutor Mark Tedeschi, who argued that the jury could use the information to apply “the attachment theory, which is that children who have gone through the sort of early life that this accused went through may have difficulty themselves bonding with their own children.” Or trial judge Graham Barr, who acknowledged that the family history had “substantial” value in interpreting Folbigg’s diary, but that that still did not outweigh “the danger of unfair prejudice.”

Or why not appeal judge Peter McClellan? A decade after ruling on Folbigg, he headed the royal commission into institutional child abuse. There, he wrote eloquently about how “adverse childhood experiences can negatively influence a person’s emotional, social and cognitive development.” But he also bemoaned the “misconception… that victims of child sexual abuse go on to sexually offend against children themselves,” a conception sadly voiced by some victims when they privately confessed their own crimes to the commission.

My point, of course, isn’t that Folbigg’s history casts light on her guilt or innocence. Rather, it’s the possibility that one or more jurors may have seen such a link themselves, much as her ex-husband and others did. Or, as Barr feared, that one or more of them might have somehow irrationally judged her for her father’s crimes. I struggle to imagine why the appeal judges couldn’t imagine these possibilities.

Indeed, I have a further, more speculative worry, based on what Folbigg wrote in her diary between the death of her third child and the conception of her fourth:

I’m ready to continue my family time now. Obviously, I’m my father’s daughter. But I think losing my temper stage and being frustrated with everything has passed.

Craig Folbigg, the police and Tedeschi all thought the middle sentence was a confession to a homicidal temper. Barr ordered that it be whited out in the jury’s copy of the diary, and belatedly told Tedeschi not to mention the word “But” either.

But I fear that the jury could well have puzzled out what was behind the white-out, for two reasons. First, Craig Folbigg himself blurted the hidden sentence from the diary to the jury in the trial’s first week, the same period when one juror turned to Google. And, second, they were highlighted in pretrial articles about the case, ones that also reveal the history that juror found via Google. This makes it possible that Folbigg’s jurors in 2003 may have mimicked the very moment in 1999 when Craig Folbigg says that he started to think his wife was a murderer.

Fortunately, there’s no need to dwell on whether Folbigg’s seventh, eighth and ninth judges were wrong, any more than whether the other ten were wrong. Nor is there any need to engage in some undoubtedly uncomfortable speculation about why. Instead, as of this week, we can let all of that slide.

Just as evidence, and our takes on it or particular cases shift with time, so do courts’ takes on what is, and isn’t, a fair trial.

Juror research was once a matter of jokes, shrugs and warnings, but now it’s a crime in most parts of Australia. And, just this week, Australia’s High Court ruled that the past approach of the NSW courts to juror misconduct, including the test applied to dismiss Folbigg’s appeal, was wrong. Rather, when jurors knowingly disobey a judge’s direction, other than a trivial one, it will always be a miscarriage of justice.

The case before the High Court, like Folbigg’s, involved the discovery, after a trial, that one juror had searched the internet early in the case and had told the others what he found. The majority’s new test in such cases is to ask whether a layperson might reasonably apprehend that any juror might, as a consequence, not have decided the accused’s guilt on the evidence, according to law. If so, the majority declared, the trial would be “incurably flawed.”

The majority went on to rule that the new test wasn’t met in the case before it, but only because the juror had searched for information about how crimes are sentenced rather than about the accused or the case or the rules of proof. That was still wrong, they said, but it simply wasn’t clear either way whether the juror (and the other jurors, who didn’t report him during the trial) realised it was wrong.

Last year, I said much the same about the juror who brought an academic article about false rape accusations into a jury room, perhaps in the belief that such general research was allowed. Cases like these sharply contrast with what Folbigg’s juror did, specifically googling her name, reading websites about her case, and telling other jurors what was there. There is no way that could pass muster after this week.

Again, you don’t have to take my word for it. The other two judges in the High Court case, James Edelman and Simon Steward, who would have sent the case before them to a lower court for a rethink, decided to illustrate why the previous New South Wales approach was so dangerous. The example they chose was Folbigg’s appeal, during which, they said, the appeal panel “applied the wrong test,” “placed itself in the position of the jury” and “effectively reversed the usual onus.”

This step — effectively becoming the fifteenth and sixteenth judges to weigh in on Folbigg’s convictions — is extraordinary. It is also, surely, no coincidence that it comes after Bathurst’s report, which should be prompting many Australian judges to wonder what went wrong in that particular prosecution.

This week, three more NSW judges — the seventeenth through nineteenth, by my count — will be asked to weigh in on Folbigg’s conviction. Although Folbigg is out of jail (and cannot go back), she remains a convicted child murderer, unless and until a court holds otherwise.

Bathurst referred Folbigg’s case back to his former court so they could explore the same issue he’d decided: whether or not there is reasonable doubt about her conviction. But there is no need for the new court to, yet again, weigh up all of the evidence for or against.

The new judges can, and should, simply quash her jury’s verdicts because her trial was unfair, as their predecessors should have done sixteen years ago. •

The post Judging Kathleen Folbigg appeared first on Inside Story.

That someone was Chris, Bronwyn’s son, who spent several evenings in October 2011 waiting near Ray’s flat, a large spanner in hand. He also recruited his best friend Zak, who waited beside him each evening with a steel pipe. Zak in turn recruited Spider, friend of no one, who hefted a baseball bat while he spent Bronwyn’s money in his head.

How was justice meted out to these five in the Northern Territory a bit over a decade ago? Bronwyn got an eight-year prison sentence with a four-year minimum. Chris, Zak and Spider each got life, with minimums of eighteen years for Chris and twenty each for the others.

As for Ray, he got a quick but brutal death, courtesy of Chris’s wrench, and was dumped in a roadside clearing, one of the few spots in the outback a body is likely to be found. That was one reason the rest of them were swiftly caught. The other was that Spider forgot to delete the group’s texts from his phone before the police brought him in for a chat.

Did you pick Zak and Spider as equal worst of the survivors? The judge who sentenced them, Dean Mildren, sure didn’t. If he could, he’d have given Spider credit for pleading guilty and testifying against the others, and Zak still more for pulling out of the plan early. But, as journalist Dan Box incredulously reports, the pair’s judge lacked the power to do justice.

Box produced an impassioned documentary about the judgement, The Queen & Zak Grieve, in 2017, successfully pressing for the Territory government to show Zak some mercy. Now he’s written a far less certain book about the case. What’s changed in six years? Mainly, Dan Box.

Box opens his third book with a confession: he made his documentary because he “wanted to win another Walkley.” He’d won a couple the previous year for his reporting on three murders in Bowraville, including the first such award for a podcast. But he never won a third and soon left the Australian and its podcasting scene to Hedley Thomas.

The Englishman doesn’t reveal exactly where he went, but he mentions enduring occasional snow and regular depression. He also decided to speak with Zak for the first time. He wrote letters to Grieve “to reassure myself that I’d been right, and he really wasn’t a killer.” The pair’s correspondence is the heart of this book, the recently released The Man Who Wasn’t There.

I don’t think Zak is the title character. He was barely a man in 2011. The nineteen-year-old spent his time in Katherine on his Xbox and watching anime, and he’s been in stasis ever since. And he was very much there for most of the plot against Ray.

His co-conspirators split on whether Zak was still there during Ray’s final minutes or had pulled out hours before. Zak’s judge had to give him the benefit of the doubt on that point, but Box didn’t have to. Since the documentary, he’s read phone texts casting doubt on Zak’s claim that he cut ties when he realised that what he’d agreed to wasn’t a beating but a killing.

“You have to ask, Why lie?” writes Box of Spider, who testified that Zak was the first person Ray saw in the last horrible moments of his life. By contrast, Chris — “a kind and decent person, for a killer” — had every reason to “protect his friend.”

At some point in their correspondence, Zak became Box’s friend too. Box writes that this may be why his “doubts about Zak’s involvement in the murder itself have receded.” When it’s someone “you care about… it’s not enough to say this is not your fight [and] you don’t have to pick a side.”

In 1991, Helen Garner famously picked a side early on and, like Box, spent a book (The First Stone in her case) mulling over her instincts. Then, in 2004’s Joe Cinque’s Consolation, she befriended a bereft parent and, like Box and Zak’s mother Glenice, came to share her rage at the machinations of justice.

Some couldn’t stand how Garner inserted herself into the narrative, but I prefer my true crime writers to be there. You can see the difference in Box’s two works on Grieve. His documentary, made before he said more than a handful of words to his subject, ended with a dogged pursuit of a possible fourth co-conspirator who was never charged at all.

Box’s book reveals that Chris himself had named a fourth participant. But this time the journalist opts not to go there. Naming names, writes Box, “risks causing hurt, not just to his family, but to Zak’s also.” And to Zak. “Knowing whether Zak was right or wrong no longer matters to me.”

It never mattered to the courts. In 2014’s This House of Grief, Garner looks a man in the eye who drove his three kids into a dam and sees a failed suicide rather than a vengeful homicide. Either way, Robert Farquharson was still a murderer and so is Zak Grieve, whether he was there at the end or not.

Zak was guilty of conspiracy as soon as he joined Chris’s plan, and was guilty of murder the moment it succeeded. Conspirators can pull out of planned crimes under Australian law, but withdrawal is a tricky, unpleasant and fallible method of avoiding unwanted convictions. Zak had to not only exit before Ray was struck but also do whatever he could to save Ray’s life. His jury ruled that he failed one or both of these tests.

It’s a fair rule, but Territory law made it very tough in Zak’s case. A decades-old statute requires that murderers serve at least twenty years in prison. There’s one exception for good people who kill bad ones, hence Chris’s eighteen-year minimum. But Zak (and Spider) weren’t eligible, in part because Zak sometimes sold cannabis but mainly because neither of them knew much about Ray.

Thanks to Box’s documentary and a petition by his lawyers, Zak ultimately got a lower sentence, courtesy of the Northern Territory government’s power to grant mercy. This combination of legislative toughness and executive whim produced the same outcome that justice would have: a twelve-year minimum sentence, which expired last week.

Rank these punishments. Life in prison. Losing your life. Losing your child to prison. Losing your child.

Garner’s This House of Grief is named after a line in a 1930s Hungarian novel that laments how a troubled crime journalist’s “finest years had slipped by in this treasury of pain, this house of power and grief.” The author, Desző Kosztolányi, was describing a bustling Budapest police station, while Garner was thinking of Victoria’s Supreme Court.

Zak’s house for much of his twenties was the Darwin Correctional Centre. Known as Holtze, it’s a freshly built failure housing a thousand residents with no respite from heat or boredom. The in-cell screens, replacing the correspondence courses Zak once devoured, have never worked. The library he worked in was shut. His sole escape is handwriting a sprawling sci-fi novel he sends outside in five-page instalments that are checked for security threats.

Zak shared a wing with other lifers, including Chris, Spider and backpacker murderer Bradley Murdoch. One eighty-year-old got parole after his minimum twenty years but asked to stay in Holtze to avoid burdening his family. He hung himself on a ceiling fan when he learnt that the Territory government had banned lifers from work release. Authorities replaced the fans with desk ones.

Here’s how some other punishments have been meted out in recent years:

Spider never got his own documentary or the credit Mildren recommended for ratting on Zak and Chris. Friendless as ever, he’s the only one of the conspiracy still left in prison.

Halfway through his eighteen years, Chris died in his cell, bleeding from his anus. It wasn’t what you might guess. Many Holtze residents passed their days using Kronic, a potent synthetic cannabis they often concealed in their bodies.

Murdoch, who has never revealed where he hid Peter Falconio’s body, even when he was offered a transfer to Western Australia, hated the drug. He told Chris’s coroner that Holtze was to blame: “That’s why other people smoke Kronic. It takes them to another place.” Authorities gave the lifers board games.

Zak saw another culprit. When he and Chris took Kronic, they took turns to ensure that the other didn’t suffocate when they became “stuck.” But Zak was sent to another wing three days earlier for making a sexist joke. He wasn’t there for his best friend. Again.

Box might name another. Zak’s mother Glenice, attending the inquest to see her son testify, “found Chris’s mother Bronwyn sitting watching from the public gallery.” Bronwyn, who was convicted of manslaughter, has always said she had no idea Chris would murder Ray himself. She told Glenice “she would soon be leaving Darwin, to go somewhere small and isolated.”

Did you pick these punishments as the worst ones? Box wouldn’t. His daughter Poppy “counts off the days she’s spent in hospital along one wall,” he writes, “using coloured pens to draw four vertical lines with a fifth running diagonally through them, like some kindergarten prisoner.” Halfway through his correspondence with Zak, Box felt a lump in his nine-year-old’s tummy. The doctors gave her a fifty-fifty chance.

Zak was released last week. He’d already told Box it wasn’t an end: “I’m on a life sentence. On parole.” So are Box and his daughter. She had two years of chemo but the tumour is still there. “We leave hospital knowing we will be back there, every three months, over and over, always in fear, always not knowing.”

Why would Box include this in his book? Well, how couldn’t he? He’d learnt what mattered, and it wasn’t justice. “While I wouldn’t recommend having your child diagnosed with cancer as a cure for depression,” he writes, “it seems to have worked for me, at least.” Being there is a complete nightmare, of course. But not being there is worse. •

The Man Who Wasn’t There
By Dan Box | Ultimo Press | $36.99 | 320 pages

The post This house of Grieve appeared first on Inside Story.

Ben Roberts-Smith was already the most famous and celebrated soldier of his generation. During multiple operational tours in Afghanistan, he had won the Victoria Cross, the Medal for Gallantry and the Commendation for Distinguished Service — making him the most highly decorated Australian serviceman since the second world war.

After retiring from the army in 2013, Roberts-Smith had done an MBA and traded his $120,000-a-year soldier’s pay packet for a $700,000 package as Queensland manager of the Seven Network. Venerated as an exemplary role model in war and peace, he was named Australian Father of the Year in 2013 and served as chair of the National Australia Day Council from 2014 to 2017.

During his research in Afghanistan and Australia, Masters had heard claims that Roberts-Smith was not quite the paragon of virtue that political leaders, powerful business figures and the Australian public had come to embrace. There were mutterings that he was a headstrong bully, that the circumstances in which he had won his medals were dubious and that he had been involved in multiple battlefield abuses. But there was nothing concrete.

The meeting in the privacy of the Hyatt Hotel rose garden had been arranged as an opportunity for the former soldier to rebut various criticisms being levelled by his old comrades, rather than as an inquisition. “While I was obliged to ask difficult questions, which is the job of a journalist, I was in a mood to mediate,” Masters, an admirer of Australia’s special forces and supporter of their engagement in Afghanistan, would write. But while Roberts-Smith had begun by revealing himself to be “articulate, measured and persuasive,” the conversation soon degenerated into anger and vitriol.

The war hero went to war on his accusers. He blasted some of the soldiers who had served with him as cowardly, incompetent and toxic. He said his critics were driven by jealousy and were smearing him with lies. He was “vicious” in his angry rebuttal of their accusations. As Masters later watched the two-metre-tall figure in the tailored business suit depart, he would reflect: “My overwhelming impression… was that Ben Roberts-Smith VC, MG was not behaving like a man with nothing to hide.”

A few days later, Masters received a late-night call on his mobile phone from an anonymous source on an encrypted line, who said: “He kicked this bloke off a cliff. As his face spun down, it smashed against the wall and his teeth sprayed out. The bloke who saw it can’t get the image out of his mind. He said he had to get away from Ben Roberts-Smith. It was not the first time he said this stuff happened. RS is a bloody psychopath.” After Masters pursued further details from sources, “the outline of a shocking story emerged, cruel to the point of abomination.”

He realised he was on the cusp of perhaps his biggest story since the 1980s, when he had exposed the French government’s involvement in the sinking of the Greenpeace vessel Rainbow Warrior and revealed the police corruption in Queensland, helping to trigger the Fitzgerald royal commission. But the former Four Corners star was now a freelance journalist and writer with limited resources. “I needed an ally,” he would concede.

And so began one of the most formidable partnerships in the history of Australian investigative journalism — Chris Masters and the Age’s Nick McKenzie. Despite being thirty-three years younger than Masters, McKenzie had a CV to rival if not surpass that of the man who had once mentored him as a cadet journalist. After two decades of spectacular investigative journalism, McKenzie had won an unprecedented fourteen national Walkley awards for journalism and twice been named Graham Perkin Australian Journalist of the Year.

Their six-year collaboration delivered a series of shocking revelations about the conduct of Australian soldiers in Afghanistan and a marathon defamation trial that ended last month with a finding by Justice Anthony Besanko in the NSW Supreme Court that Ben Roberts-Smith was a liar, a serial bully and a war criminal. Besanko found it was “substantially true” that the VC winner had been involved in the murder of four unarmed Afghan prisoners and civilians, had intimidated and threatened court witnesses to hide the truth, and had lied repeatedly in his sworn evidence.

Despite Roberts-Smith’s decision on Tuesday to lodge an appeal in the Federal Court challenging Besanko’s findings, the dramatic conclusion of the case has starkly framed the prospect of years of sensational war crimes prosecutions that are likely to shred the reputation of our armed forces at home and abroad and scar the Anzac mythology that has been a cornerstone of our national identity for more than a century. The failure of Roberts-Smith to hide what Besanko found to be true must give new impetus to the work of the Australian Federal Police and the Special Investigator appointed in the wake of the internal defence department inquiry into war crimes in Afghanistan headed by NSW judge and army reservist Major General Paul Brereton.

Brereton reported in 2020 that there was credible evidence that thirty-nine Afghan non-combatants had been unlawfully killed by or at the direction of Australian special forces, “which may constitute the war crime of murder.” His report identified twenty-five current or former Australian soldiers who were “alleged perpetrators — either as principals or accessories.” Brereton described one of the unspecified incidents he investigated as “the most disgraceful episode in Australia’s military history.”

Had Besanko found in favour of Roberts-Smith, it would likely have dampened if not derailed the cumbersome process of bringing appropriate criminal charges against those identified by the Brereton inquiry. It would have re-energised the many powerful voices who continue to argue that whatever happened in Afghanistan should be left behind in Afghanistan. And it would certainly have discouraged the media from further interrogating matters that might risk ruinous defamation costs.

Instead, the chief of the defence force, General Angus Campbell, this week declared that thoroughly investigating those Australian soldiers accused of war crimes in Afghanistan was “utterly critical” to Australia regaining moral authority at home and with its allies. Campbell, who deserves great credit for initiating the Brereton process in 2016 in the face of strong military and political opposition, told the Australian Strategic Policy Institute’s journal the Strategist that it was also imperative to deal more broadly with “the breadth of the cultural professional issues” that had been highlighted by the inquiry.

“Our operational capability is in large part about our capacity to win the friends and partners who will stand with us in conflict,” he said. “We need to be a force that people want to serve in, but also to join with in partnership across nations. We have never fought alone. We never want to fight alone. What a tragedy if because of real or perceived lapses in our military conduct we found ourselves alone.”

While the tenacious partnership between Masters and McKenzie secured victory in what became the biggest and, with costs now estimated to be as high as $35 million, the most expensive defamation case in Australian history, it would not survive the final reckoning. Their plans to jointly write a book about the saga unravelled. According to Masters, he and McKenzie “worked well together as investigators, but regrettably could not coordinate the writing” of a joint book.

That apparently amicable literary separation has now delivered two compelling accounts of the partnership that complement and illuminate each other — Nick McKenzie’s Crossing the Line and Chris Masters’s Flawed Hero. Both are powerful, passionate and often moving narratives infused with the personal impacts of fighting the most protracted and enervating journalistic battle each of them had ever experienced. Had they lost, it would have been a serious setback late in the illustrious career of seventy-four-year-old Masters. For Nick McKenzie, it would have been the end. He writes that he could not have coped professionally with the failure and, aged forty-one, would have quit journalism.

The two journalists reveal how perilously close they thought they came to losing. While they were sure of the accuracy of their reporting and the details of the atrocities they had helped to uncover, they concede that they faced an uphill battle proving it to the standard required for a defence of truth in a civil defamation case.

To succeed, it was essential to persuade soldiers who witnessed the abuses to agree to give evidence or, if they were compelled to appear, to tell the truth about what they had seen. When the case began, they were pessimistic about the prospects of persuading even those soldiers who were appalled by what they had seen and supported their reporting to willingly give evidence. They were sure Roberts-Smith had the upper hand at the start of the hearings and held it until close to the end.

Had the hearings not been delayed many months by the intervention of Covid, they felt it unlikely they would have had enough time to persuade reluctant witnesses to cooperate. But in the end, the defendants called twenty-one serving and former soldiers, and it was the compelling testimony of a number of them that ultimately defeated Roberts-Smith’s claims.

For both journalists it was, before the final victory, a deeply disillusioning experience. For Masters, who had spent decades working closely with special forces and growing to admire their dedication and professionalism, this was especially so. Beyond the shocking evidence of the multiple murders of unarmed prisoners and civilians, there was what Liberal MP and former SAS captain Andrew Hastie would describe as a pervasive “pagan warrior culture”: rookie soldiers “blooded” by being ordered to kill Afghan captives, “throw downs” in which radios or weapons were planted on the bodies of unarmed victims to pretend they were legitimate battlefield casualties, and “kill boards” kept by SAS units with targets of Afghans to be killed. “It amounted to a descent into the depravity we fight against,” writes Masters.

For McKenzie, seeking justice for the most famous of the victims became a driving force. Ali Jan was the innocent farmer and father of six who was visiting the village of Darwan in Oruzgan province to buy flour and a pair of shoes for his young daughter on 11 September 2012 — the eleventh anniversary of the World Trade Center attacks in New York — when Australian soldiers swooped on the village. Justice Besanko would accept the evidence of multiple witnesses that after he was handcuffed and questioned, Ali Jan was taken to the edge of a nearby cliff and kicked off by Ben Roberts-Smith, who later ordered the execution of the helpless and badly injured farmer.

In 2019 McKenzie travelled to Afghanistan to meet Ali Jan’s widow, Bibi Dhorko, who was desperately struggling to support her young family after the loss of her husband. “One of the soldiers who’d been at Darwan the day Ali Jan died told me something just before I made the trip to Kabul,” he writes. “I’d thought about it ever since. Ali had lived a relatively meagre existence confined to a few villages, a cluster of kin and a daily struggle to survive. Once the story of his death was exposed in our newspapers, it had viscerally exposed the barbarity of those few Australian soldiers who had gone rogue… In death, Ali had reinforced to my war-bitten source the sanctity of human life, even in conflict. This was why the laws of war mattered. Maybe that was Ali’s ultimate legacy.”

As much as the Roberts-Smith saga showed the best of Australian journalism through the determined work of our finest investigative reporters, it also showed the worst of Australian journalism in the outrageously partisan conduct of rival media organisations. They not only failed in their professional duty to help expose the scandal but also worked hard to undermine the credibility of the fine work done by McKenzie and Masters, gormlessly joining the Roberts-Smith cheer squad.

“I can’t say I handle well being beaten up by fellow reporters,” Masters writes. “My view is that there is a shared responsibility. We work first for the public, so there should be some shared values and purpose.” He derides in particular the reporting of the Murdoch press: “The Australian’s reporting on the war crimes now under scrutiny, and especially on Ben Roberts-Smith, was flimsy and partisan. Probably because they had not done the work, because they were incapable of catching up and had an ingrained oppositional stance to Fairfax, and because they could not resist the spoils of a drip-feeding by Roberts-Smith’s lawyers.”

The magnitude of Roberts-Smith’s fall from grace has been amplified by the heights to which he was elevated in popular perception, in large part a product of jingoistic and uncritical coverage in the popular media. Chris Masters dubbed him the Anzac Avatar — the superman soldier whose fame and legendary battlefield exploits made him the embodiment of Australia’s self-perception as a nation of rugged, fearless and independent individuals.

“Craving identity,” Masters writes, “Ben Roberts-Smith found the shape of who he wanted to be in the persona of the killing machine. The special forces operative, amped in popular media to superhero veneration, became a poster boy. We could not help ourselves. The seven-foot-tall and bulletproof Anzac avatar assumed that pedestal.” This, says Masters, is where it went “monstrously wrong.”

Ben Roberts-Smith was one of four Australians to win the Victoria Cross in Afghanistan. Why was he the household name when most Australians would be unaware of the three other Australian soldiers who also won the highest award for gallantry, let alone know their names? How many know the story of Trooper Mark Donaldson who rescued a wounded Afghan interpreter under heavy fire, or Corporal Daniel Keighran who drew enemy fire away from a wounded colleague, or Corporal Cameron Baird who was killed in action storming an enemy-controlled building?

While it was central to Roberts-Smith’s case to portray himself as the victim of a reckless media smear campaign, Masters points out that the complaints about the soldier “originated not from the pampered, irresponsible media but from battle-hardened colleagues.”

Both McKenzie and Masters argue persuasively that Australians rightly dismayed by the scandalous misconduct within the ranks of our elite forces in Afghanistan should be heartened by the fact that the truth would probably never have been revealed without the courageous stand of many decent and professional soldiers appalled by the actions of their comrades.

Says McKenzie: “It was the good men and the moral soldiers of the SAS who stood up and told the truth in court.” Masters writes: “There are soldiers in Australia’s Special Air Services Regiment who have moral as well as physical courage. While those who spoke endured condemnation from many of their brothers, it is hoped that some glancing consideration might be given to the probability that they saved their regiment. Had these revelations erupted as a scandal that was unforeseen and not self-reported, the SASR would have been lucky to escape disbandment.”

As Australia braces for years of traumatic testimony with the twenty-five potential war criminals identified by the Brereton inquiry facing prosecution, we might hope that the courage and decency of those who called out the renegades and forced the reckoning will be the narrative that begins to salvage the tarnished honour of our armed forces. •

Crossing the Line: The Inside Story of Murder, Lies and a Fallen Hero
By Nick McKenzie | Hachette | $34.95 | 488 pages

Flawed Hero: Truth, Lies and War Crimes
By Chris Masters | Allen & Unwin | $34.99 | 592 pages

The post Unfriendly fire appeared first on Inside Story.

Thanks to three Trump-era appointments, the nine-member court is dominated by six conservative justices. While it has repudiated aggressive conservative litigation on immigration, tribal rights and the ability of states to control elections, in each case with the three Democratic appointees as part of the majority, it has also responded to the conservative agenda in decisions on affirmative action, gay rights and student loans. Divided along partisan lines — with the court’s three Democratic appointees in strong dissent — those decisions will have a significant impact on the rights of protected population groups in the United States.

The dominant news, and a cause for progressive celebration, is the court’s decision to reject the radical independent state legislature theory in Moore v. Harper, a case brought by a group of Republican lawmakers from North Carolina. The theory rests on a relatively recent interpretation of the US constitution’s elections clause, which says that state legislatures can set the rules for national congressional elections in their states.

According to proponents of the strongest form of the theory, no other organs of state government — courts, governors, election administrators or independent commissions — can alter a legislature’s decisions about how federal elections are run. Trump lawyers used this theory in 2020 to argue, unsuccessfully, that Joe Biden’s victories in key states were illegitimate and that state legislatures could unilaterally reverse the outcome.

In the latest case, the court ruled that state legislatures can’t make decisions that ignore their state’s supreme court or violate their state’s constitution. This six–three judgement, which applies to all states, is being hailed as a major win for democracy and voting rights.

But the tireless efforts of hardline conservatives will mean further attempts to challenge the court’s ruling and invoke the independent state legislature theory are likely in 2024. And the decision will not change the commitment of the Republican-dominated North Carolina legislature to the undermining of federal election processes and voting rights.

The genesis of the case was a gerrymandered electoral map drawn by the Republican-dominated North Carolina legislature after the 2020 census. After it was rejected by the state’s supreme court, Republicans passed an emergency application in February 2022 asking the US Supreme Court to intervene. That court rejected the request for immediate intervention, and the election last November was conducted under a map drawn by experts appointed by a state court.

The result was a fourteen-member congressional delegation evenly split between Republicans and Democrats — a reasonable result in a state where 34 per cent of voters are registered Democrat, 30 per cent are registered Republican and 36 per cent are unaffiliated.

But the 2022 election changed the composition of the North Carolina supreme court, which is now dominated by Republicans with a five-to-two margin. The new court’s majority reversed course, saying the legislature is free to draw gerrymandered voting districts as it sees fit — as it is already doing. A political fight is developing in North Carolina over voting rights and what has been described as “headline-grabbing confrontations over nearly every lever of the electoral apparatus.”

Moreover, the US Supreme Court’s decision contains what some see as a time bomb. In his majority opinion, chief justice John Roberts reaffirmed his court’s capacity to overrule state courts when it so chooses. Importantly, he persuaded the three liberal justices, Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, to go along with a version of judicial review that some experts fear could allow the court to meddle in future elections.

It is interesting to note that the justices pointed to Bush v. Gore, the 2000 Supreme Court opinion that stopped Florida’s recount and confirmed George W. Bush’s presidential victory, as a template for resolving election disputes, despite the fact that the court’s opinion in Bush v. Gore explicitly stated that it was not intended to create precedent.

A series of other just-released decisions reflect the court’s conservative leanings and seem part of a broader effort to overthrow long-supported rights and benefits for minority groups. Two decisions saw the six conservative members of the court invalidate admissions programs at Harvard and the University of North Carolina that use race as a criterion, effectively ended race-oriented affirmative action admissions programs at public and private colleges and universities across the country and tossing aside yet another well-established federal right.

It is ironic that the justices ruled that the admissions policies violated the equal protection clause of the fourteenth amendment to the constitution — an amendment that was ratified in 1868 to enable the federal government to deal with the profound racial discrimination against Black Americans that continued after the Civil war.

The majority decision was written by Roberts, a long-time critic of affirmative action programs. At both Harvard and the University of North Carolina, he wrote, the programs “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

As if to acknowledge these programs’ importance to ensuring greater diversity, though, Roberts stressed in a footnote that military academies are exempted from the decision. “No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context,” he wrote. “This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”

The only two Black members of the Supreme Court — Clarence Thomas and Ketanji Brown Jackson — openly traded barbs in their widely divergent opinions.

“As [Jackson] sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today,” wrote Thomas, himself a beneficiary of academic affirmative action. “The panacea, she counsels, is to unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means as necessary to ‘level the playing field,’ all as judged by racial metrics. I strongly disagree.”

Thomas also accused Brown Jackson of ignoring the oppression of other groups, including Asian Americans and “white communities that have faced historic barriers.” (It’s worth noting that Thomas and his conservative colleagues don’t take issue with the legacy programs that perpetuate elite access to Ivy League universities.)

Justice Brown Jackson, who led the liberal dissent, didn’t mince words either, calling the decision “a tragedy for us all.” She defended the use of race-conscious programs to ameliorate the pervasive, present-day effects of America’s history of state-sponsored racism. “Gulf-sized race-based gaps exist with respect to the health, wealth, and wellbeing of American citizens,” her dissent began, and went on to argue that allowing colleges to consider applicants’ race has “universal benefits” because it helps to close those gaps and thereby promotes equality.

Not surprisingly, these US Supreme Court decisions have generated strong condemnation. Critics are concerned about the impact on Black Americans and on the diversity that is so needed in the healthcare workforce.

More is at stake than affirmative action in university admissions, including the central question of whether the law can be used to fix longstanding racial inequalities. As Justice Sotomayor wrote in her strong dissent, “The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind.”

Conservatives, long wary of race-based programs designed to benefit minorities, will be emboldened to leverage these decisions into attacks on affirmative action programs in other areas such as corporate diversity. “In the broadest sense,” wrote political analyst Ron Brownstein in the Atlantic, “the Republican-appointed justices have moved to buttress the affluence and status that allow white people to wield the most influence in society, and to diminish the possibility that accelerating demographic change will force a renegotiation of that balance of power.”

Disadvantaged students will also be affected by the court’s decision, in Nebraska v. Biden, to strike down President Biden’s student debt relief plan. This was a 2020 election campaign promise to deliver financial relief to up to forty-three million student loan-holders, including cancelling the full remaining balance for roughly twenty million, with these relief dollars targeted to low- and middle-income borrowers. Advocates argue that both student loan forgiveness and affirmative action are racial justice issues.

In a major win for Republicans, who had vehemently opposed the plan, the court’s six conservatives ruled that the Biden administration lacked the power to forgive loans for more than forty million borrowers. Facing Republican opposition to legislation to implement this commitment, Biden had used the HEROES Act, which was authorised in 2003 after the 9/11 attacks as a means of giving loan relief during times of war and other emergencies.

The plan’s hefty price tag also meant it had major economic implications. In striking down the plan the court thus relied on the “major questions doctrine,” which says that Congress must give direct authorisation for the executive branch to implement a policy that has major economic and political impacts on the country. The doctrine was first invoked in 2022 in a decision about the extent to which the Environmental Protection Agency could regulate greenhouse gas emissions.

Republicans and advocates of limiting the power of the federal bureaucracy cheered this most recent court decision, but the liberal justices and many legal experts are concerned it could prevent the government from taking decisive action on climate change, healthcare and other urgent problems.

“The Court, by deciding this case, exercises authority it does not have,” Justice Kagan wrote in her dissent. “It violates the Constitution.” Norman Ornstein of the American Enterprise Institute was even blunter: “They created out of whole cloth a bogus, major questions doctrine. They made a mockery of standing. They rewrite laws to fit their radical ideological preferences. They have unilaterally blown up the legitimacy of the Court.”

Another recent decision puts a question mark over the court’s decade-old judgement establishing the constitutional right to same-sex marriage. In this latest case, the court decided that Colorado’s anti-discrimination law violated a web designer’s free speech rights under the first amendment, raising fears that the right of LGBTQI+ Americans to non-discrimination (including the right to marry) is being eroded.

The case, 303 Creative v. Elenis, rests on several hypotheticals. Web designer 303 Creative is owned by Lorie Smith, who opposes same-sex marriage on religious grounds. But the company has never been asked to create a website for a same-sex wedding, and Colorado has never tried to force it to design such a website. In fact, Smith didn’t design wedding websites for anyone at all when the suit was filed.

Justice Neil Gorsuch, who wrote the majority opinion for the conservative justices, called the message conveyed by any websites Ms Smith designs “pure speech,” as if no services were being provided and the primary point of the websites would be to express the designer’s views on matrimony. The court’s three liberal justices disagreed. “Today,” Justice Sotomayor wrote, “the court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”

The decision came at a time when Republican legislators in many conservative-leaning states are targeting the rights of transgender and other LGBTQI+ people. In strongly criticising the decision, President Biden expressed a fear that the ruling could invite more discrimination. “In America, no person should face discrimination simply because of who they are or who they love,” he said in a media statement. “More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations — including people of color, people with disabilities, people of faith, and women.”

Not only do these recent decisions highlight the impact of the three conservative justices appointed by Donald Trump; the majority and minority opinions also highlight how divided the US Supreme Court has become. Observers have detected a new contentiousness during oral arguments and within justices’ opinions. The highly personal attacks in the affirmative action rulings are a far cry from the expected dispassionate legal interpretation.

In dissenting from the decision to strike down the student debt plan, for instance, Justice Kagan wrote that “in every respect, the court today exceeds its proper, limited role in our nation’s governance.” Chief Justice Roberts retorted: “It has become a disturbing feature of some recent opinions to criticise the decisions with which they disagree as going beyond the proper role of the judiciary.”

Moreover, when court decisions continually divide along the same lines as the divergence of political opinions — as has happened in most of these big cases — it is very hard for the public to see the distinction between law and politics.

A growing number of critics worry the court is losing its legitimacy by overturning abortion rights and using disingenuous legal reasoning to advance a reactionary political agenda. At the same time, public revelations of the close ties between Justices Samuel Alito, Gorsuch and Thomas and wealthy benefactors with business before the court have met with official indifference from the chief justice. Small wonder the court’s popularity has plunged to record lows as the public increasingly sees the court as a political body.

Biden is facing increasing pressure from Democrats to embrace far-reaching reforms to the nation’s highest court, including expanding the number of justices and imposing term limits and mandatory retirement. While he has harshly criticised the court’s sharp pivot to the right, calling it “not a normal court,” he has declined to endorse any of proposed reforms.

Together with abortion, these most recent decisions will be an ideological divide along which Republicans and Democrats — and voters — will line up for next year’s elections. The conservative push to erode rights for women and minority groups will galvanise both those who agree and those affected.

Biden is signalling he will run against the court and Republican lawmakers on a host of judgements, including abortions rights and student loans, hoping to appeal to women, people of colour and young voters. For this to be a winning strategy, he must get voters who are disappointed by the lack of action on these and other issues — including stricter gun rights and more liberal immigration laws — to see that their only hope of remedy lies with him and the Democrats.

Trump will certainly tout his success in stacking the US Supreme Court, and his Republican presidential rivals will presumably claim they will do more. This approach has deep appeal for the rusted-on Make America Great Again base but is unlikely to garner sufficient votes to gain a victory in the general election.

It is no accident that Trump, even as he takes credit for the decision to abolish legal abortion, has been dodging questions about whether he would sign a federal abortion bill into law — something many within the conservative movement see as the next frontier in this fight. Florida governor Ron DeSantis, his chief rival in the Republican presidential primary, has sought to outflank him on the issue by embracing it as a key feature of his campaign, as has former vice-president Mike Pence.

What the United States is seeing in 2023 — in Supreme Court decisions, state actions and the failure of Congress to enact any meaningful legislation — is a clawing back of the rights of Americans, especially those in minority groups, in a way previously unseen in modern times. This must surely be a key election driver next year. •

The post One step forward, three steps back appeared first on Inside Story.

Here is how chief judge Robert Beech-Jones finished: “I doubt that the imposition of sentence on the offender for the second and hopefully last time will bring closure in respect of the terrible events surrounding his death and their aftermath. However, it is be hoped that it at least represents progress towards that end.”

How could a man’s punishment for “terrible events,” albeit thirty-five years late, not bring closure? Why is even “progress towards that end” a mere “hope”? And, given that the offender had pled guilty, why is this only “hopefully” the last time he would be sentenced?

The judge’s doubt may be a case of déjà vu. This sequence of events — a guilty plea and a sentence — has happened before in this case. Indeed, Beech-Jones is the fifth judge to make a finding about Johnson’s death. Every finding has been different, and none of the previous four stood the test of time.

Will the fifth? I’m not sure what I hope will happen.

“The procedural history of this case is a story in its own right,” the chief judge observed. It began on 10 December 1988 when a thirteen-year-old spear fisher spied a body lying on rocks under Blue Fish Point on the ocean side of Sydney’s North Head. Scott Johnson was naked, but the police soon found his clothes, neatly folded, near the clifftop. When an autopsy confirmed that the American had fallen from height a day or two earlier, the police and a coroner quickly concluded that he intentionally jumped. Last week, though, Beech-Jones said this “appears to be an absurd suggestion.”

The first finding about Johnson’s death was based at least partly on absurdity. His coroner cited the fact that he was “an extremely brilliant mathematician who was reserved and introverted” as a risk factor. But Johnson’s long-term partner also assumed that he had jumped. Four years earlier, Johnson had phoned to tell him that fear of exposure to AIDS had driven him to San Francisco’s Golden Gate Bridge. “But when he got there, he found that his muscles froze over.”

The suicide finding lasted twenty-three years, a period in which a different coroner found that three men who died or disappeared on Sydney cliffs in the late 1980s may have been the victims of gangs targeting gay beats. In 2012, a second inquest into Johnson’s death heard that Blue Fish Point was also a beat. The second coroner found that the cause of Johnson’s fall couldn’t be determined and recommended a fresh police investigation.

This open finding lasted just over five years, until a third inquest reviewed the police’s discoveries. The third coroner was told of the “Narrabeen skinheads” who targeted various gay beats in Sydney’s north in the mid 1980s. One informant testified that a pair from the gang had boasted that they once “bashed an American faggot” in Manly who then “ran away.” A “community source” explained that other gang members sometimes targeted beats at North Head in the late 1980s. But the third coroner dismissed these new clues as too slight and unreliable to cast any light on Johnson’s death.

That coroner nevertheless thought other evidence revealed what happened on 8 December 1988. A “psychological autopsy” of Johnson (who had recently made major progress on his doctorate, which was awarded posthumously) made the initial suicide theory “very unlikely.” Evidence from Johnson’s brother Steve of the pair’s many hikes made an accidental fall equally unlikely. And the American’s seemingly missing wallet suggested the malign involvement of a stranger. This became the first judge to find that a crime had occurred: “I readily conclude that homicide is more likely than either of the other scenarios.”

But he also sorrowfully rejected Steve Johnson’s request for a fresh investigation independent of the police. The initial poor policing and passage of time left little hope, he said, of finding the culprits. (He thought it “likely” that the student, who was “strong and young and fit,” had been attacked by two or more people.) Nevertheless, citing harrowing accounts from past beat users of recurrent violence at Blue Fish Point, he found that “Scott died as a result of a gay hate attack.” That finding lasted less than five years.

“I did have a dream about, ’bout him… a couple of nights ago, I don’t know, it was just a weird dream in the bush, something to do with the bush… I was with him up the, up at North Head.”

“Was the gay the kid who died?” someone asked.

“Yeah,” said Scott White. It was 19 March 2020 and White was talking to “two witnesses.”

Scott Johnson and Scott White shared more than a first name. They were both the middle of five siblings. They each grew up in grim circumstances with a single parent. Both were gay. Each had thoughts of suicide. But that’s where the similarities ended. White had little to live for and no chance at all of getting a doctorate or a soul mate. He was drinking by the age of thirteen, homeless by fifteen, and in and out of fights, boys’ homes and prisons into his twenties. He was eighteen when Johnson died, married at twenty-three, and thirty-eight when his wife left with their six kids. He then cared for his alcoholic mother until she died in 2018. In March 2020 he was living alone and friendless.

Who were the “two witnesses” White was revealed to have spoken with just as Sydney locked down? Nearly every court that described their chats studiously avoided saying, but one let it slip: they were “undercover police operatives.”

“See back in them days gay wasn’t like it is now,” one cop said.

“Like we used to go poofter bashing,” White replied, before adding, “Yeah, my brother did.” His brother was why he never came out.

“Ah well you need never tell him, mate,” the cop soothed.

The cops drove White to Blue Fish Point and must have been disappointed when he walked a lengthy bush trail towards Manly and identified the Upper Shelley Headland lookout as the spot where the man with “a bit of an American accent” and a “good build” had undressed in his “dream.” Becoming emotional, he said the pair had walked there from a local hotel and talked for hours. Pressed for details, White couldn’t recall if they were “intimate.” But then he remembered something: “I think we had a fight. That’s all I can remember… he fell. I took off.” White was arrested two months after he uttered those words.

All this seemingly followed a single police interview a year earlier, in which White denied attacking any gay men, let alone Johnson, and two home visits from the operatives the previous week. Just before those visits, the police obtained a warrant to make covert recordings and asked Steve Johnson to generate interest by pledging to personally double the police’s reward. But no one has revealed what the cops did to prompt a fifty-year-old loner to confide “his biggest secret” — that he’d known he was gay since he was fifteen — much less detail that week’s “dream.”

Some overseas courts frown on the use of stings to prompt admissions from vulnerable people. In 1993, an English trial judge threw out admissions that an undercover officer had extracted after answering a suspect’s “lonely hearts” ad and insisting on a murder confession as a condition for a relationship. The public pilloried the judge, but he was later vindicated when an unrelated man was convicted of the killing.

In Canada, the police have long cracked cold cases by posing as criminal gangs who insist on true confessions from their “recruits.” But the nation’s Supreme Court drew the line at undercover cops offering illusory friendships to mentally challenged, socially isolated men in exchange for unverifiable confessions. In 2014, it acquitted a man whose new “best friend” had taken him to the lake where his children drowned so he could demonstrate how he pushed them off a wharf.

Not so in Australia. When Australian police adopted their Canadian counterparts’ methods they were swiftly endorsed by the High Court and by parliaments, who exempted undercover stings from the rules that require police seeking admissions to use methods conducive to their reliability. In 2007, chief justice Murray Gleeson and his fellow judge Dyson Heydon upheld the use of a teen’s admissions to police who assured him they were speaking off the record, infamously observing that “every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute.”

White told his arresting officers he had been “full of shit” and just wanted to “get these guys” — the undercover cops — “off me back.” He spent the pandemic in prison being assessed by a succession of psychiatrists, who declared him fit to be tried but differed on their diagnoses. They all agreed that his childhood and heavy alcohol use had left him with cognitive defects. Ahead of a trial planned for the second anniversary of his arrest, the court set aside a week to resolve whether his jury could be told of his “dream.” That finding never came.

“How are you Scott?” his lawyer asked. “Terrible,” White told her. He’d been up since 4am, hadn’t eaten, and had lost his glasses. It was 9.40am on the first day of the pre-trial hearing in January 2022, and his lawyers warned him that his sexuality would be publicly aired. White said he was fine with his brother dialling in, but he wanted to know “what is all this about something I said to Helen [his ex-wife]?” His lawyers’ explanation left him more confused, but they also told him that the week’s hearings were just for legal arguments. When they reminded him that he would be asked to make a plea that day, White confirmed that he would say “not guilty.”

Just after 11am, a court officer read out the charge that, in 1988 in Manly, White “did murder…” “Guilty,” White interrupted. The officer continued: “… Scott Johnson.” “Guilty,” White repeated. How did he plead? “Guilty,” he said a third time, while his barrister shot to her feet. White added a fourth while the judge asked what his barrister wanted. She wanted to talk to her client.

Twenty minutes later, she told the judge that White no longer maintained his guilty plea. The judge could have simply re-arraigned White then and there. Instead, noting that his plea had been “loud” and “clear,” and that he obviously didn’t misspeak, she declared him guilty of murder. That finding, the fourth about Johnson’s death, was to last for just over a year.

Two days later, the judge rejected White’s formal request to withdraw his plea. White’s lawyers, who had planned to spend the week arguing that their client’s “dream” was the product of suggestion by undercover agents he was trying to please, were now openly accused by White’s prosecutor of “persuading” him to reverse his guilty plea. The judge duly dismissed the 9.40am conversation as White hiding his real intentions from his lawyers, and read the notes of the hasty post-plea conferral as his lawyers “cajoling” him into telling them “I didn’t do it, but I’m saying I did it.”

As for his reasons recorded in those notes — he told his lawyers he was scared of his ex-wife, he was safer in prison, he’d “take” ten years imprisonment, he wanted “it to be put to rest, for Scott, for the brother” — those were all consistent with his remorse for murdering Johnson as a teen. Moreover, the lawyers’ notes revealed that a change of plea had come up on four earlier occasions. The result was that White’s murder plea stood and so did the “dream” of the killing he had relayed two years earlier.

The only additional evidence the prosecution offered at his sentencing in May last year was from his ex-wife. Helen White revealed that she was the one who sparked the whole investigation by writing anonymously to the police after she saw a documentary on Johnson’s death. She recalled her then husband admitting that he used to “bash poofters” and said that, years ago, she had twice showed him Johnson’s picture from the newspaper, prompting him to say “that girly looking poofter” and “the only good poofter is a dead poofter.” Asked “So you threw him off the cliff?” he replied that it wasn’t his fault if “the dumb cunt ran off the cliff.”

The judge rebuffed White’s lawyers’ argument that no one could find the newspaper articles his ex-wife mentioned, as well as their suggestion that she had implicated her husband vindictively or for the $1 million reward. But, faced with the entirely different “dream” White had described to the undercover operatives, the judge baulked at confirming the third coroner’s finding that Johnson was the victim of a “gay hate attack.”

“There is no logical or rational reason,” she said, “to accept what the offender said about striking Dr Johnson, but reject what he said about going with him to North Head, without any apparent rancour, possibly for a sexual encounter to take place.” All that was certain, she said, was that White knew that hitting Johnson near a clifftop would probably kill him. That finding would last less than a year.

The murder finding unravelled bit by bit. Three appeal judges held that the judge should have been more open to White’s withdrawing a plea just twenty minutes after it was made. Indeed, they observed, White simply couldn’t have known the difference between murder and manslaughter. He hadn’t been advised by his lawyers on that, and even his prosecutor was yet to explain why White’s crime was the former. The judges sent the plea to be sorted out by chief judge Robert Beech-Jones.

White’s prosecutor tried to keep White to his murder plea, and even lodged a High Court challenge to the appeal decision. But he also agreed to discuss a compromise with White’s lawyers. Three months later, he simultaneously dropped his High Court challenge, his opposition to withdrawing the murder plea, and the murder charge itself. In return, White pled guilty to Johnson’s manslaughter.

It was all over bar White’s (second) sentencing, which proceeded on different evidence from the first. The parties’ “agreed facts” now covered only events in 1988 and from 2019, skipping White’s ex-wife altogether. But they included a new development: while he was still a convicted murderer, White was recorded on a prison phone call to a “relative” admitting “to hitting Dr Johnson at the cliff in terms consistent with what has already been recounted.” Like so much else in this case, no details are provided about what exactly was said in this call.

The chief judge rejected the only additional details White’s previous “dream” had revealed about his encounter with Johnson — “I hit him. He hit me. He stumbled back. I went to grab him and he… just stumbled back” — but also put to rest his predecessor’s finding that White knew his punch would likely cause a fatal fall. This time, no one argued that Johnson died of a gay hate attack.

And so, Beech-Jones set out the fifth, and current, official account of Scott Johnson’s death: “The end result is that not much is known about the killing of Dr Johnson beyond a punch near a cliff, a vulnerable victim, a fall over the cliff, a death, an absence of taking even the simplest step to render help after the fall and decades of pain and grief that followed.”

Is this closure for Scott Johnson and his loved ones? Five years ago, and nearly thirty years too late, a coroner put an official name to why Scott Johnson died (“a gay hate attack”) but couldn’t name his killer. Last week, a chief judge put an official name to the killer (“Scott”) but couldn’t say why he killed. “I think our family has got some peace and I would even say closure,” Steve Johnson said on the court’s doorstep. “We’re one of the lucky families.” No one can or should second-guess him. (A special commission will report on the police’s handling of hate crimes, including Johnson’s case, in coming months.)

Is this closure for Scott White too? He has now “specifically confirmed to the Court that he accepted legal responsibility for the death of Dr Johnson but not for murdering him,” and been sentenced accordingly. Beech-Jones found that the eighteen-year-old White “was clearly a damaged, albeit physically powerful, young man. However, he was not broken as he is now.” How much more should the courts break him at age fifty-two? Beech-Jones settled on a minimum of three more years in prison, and neither he nor White should be second-guessed either.

But should the rest of us accept closure in this case? Doing so is certainly in vogue. Even the Scots, who famously allow their criminal juries the option of a third, “not proven,” verdict, are contemplating a switch to the binary of guilty or not, lest they be too tempted (perhaps like Johnson’s second coroner) to throw up their hands in difficult cases and let villains go scot-free. But closure is seemingly what motivated the initial police and coroner (who were too quick to conclude that Johnson jumped), the third coroner (who was too sure he was chased), and the prosecutor and first judge (who were too determined to find that he was pushed).

Beech-Jones, the most careful of the case’s five judges, had the luxury of being bound by a manslaughter plea, and found nothing more than that. But the rest of us aren’t required to accept White at his word and should hesitate to do so. He has said that he is many other things — a “poofter basher,” a dreamer, “full of shit,” a murderer — and he may be all of those, or none. What everyone agrees is that he says whatever pleases whomever he’s near, be that his brother, his wife, complete strangers or his own lawyers. And nothing White has said about Johnson’s case went beyond what everyone around him knew or assumed had happened.

The case gives me déjà vu. White’s dream reminds me of Andrew Mallard, whose supposed murder confession to the Western Australian police consisted of what he said was “my version, my conjecture” of what the murderer would have done, described in the third person. It turned out that he was just parroting what the police had told him, including their own (wrong) assumptions about how the crime happened. A fingerprint identified the true killer, but only after Mallard spent twelve years in jail.

White’s guilty plea reminds me of George Heron, whose confession to killing a seven-year-old after days of oppressive questioning was thrown out of court decades ago, to the anger of the girl’s mother, the police and the British public. Heron was sued, hounded, outed and even stabbed, but that wasn’t the worst of it. “There were times I wondered if I had killed Nikki. So many people said I had that I started to doubt myself.” Her real killer was convicted last month.

Like Johnson’s third coroner, I’m pessimistic now — given poor policing, official tunnel vision and the passage of time — that we’ll ever learn more about Scott Johnson’s death. But the real, repeated lesson of these events is that this sort of case is never truly closed. Maybe there’s more evidence implicating White in the events of December 1988 than just his inconstant, vague, derivative say-so, and for some reason we just haven’t been told. I truly hope there is. But, if not, then I’m not willing to merely hope that this is fifth time lucky. •

The post Scott’s justice appeared first on Inside Story.

Contact with the real parliament came not long after. Yunupingu’s father was one of the signatories of the Bark Petitions sent to Canberra in August 1963 asking the government to hear the Yolngu before excising land for bauxite mining from the Arnhem Land Reserve. According to some — and this is entirely plausible — Yunupingu helped draft those bilingual documents.

Still an adolescent, he’d already had a taste of two experiences that would be lifelong. One was settler colonial intransigence. Although the Bark Petitions succeeded in their immediate objective — a parliamentary committee visited Yirrkala, heard Yolngu testimony and recommended compensation — they failed to stop the mining province being excised in 1968.

The other experience was translation, for which he had, by all accounts, a particular talent. Translation was Martin Luther’s sixteenth-century gift to Christendom: the imperative to render God’s word in every vernacular (rather than lock it up in Latin) was central to the Protestant rebellion again Rome and to the global “civilising” florescence of Christian faith.

At the mission’s invitation, Yunupingu spent two of his teenage years at Brisbane Bible College. Then, when he was just twenty years old, his people took the Commonwealth to court. Once again, Australia had to bend its ear towards the Yolngu. As anthropologist Nancy Williams writes, Yunupingu and another college trainee, Wulanybuma Wunungmurra, skilfully translated the Yolngu testimonies of customary law into English for the judge, Richard Blackburn. They were assisted by missionary linguist Joyce Ross. Each of the trio occasionally interjected with an alternative interpretation to what had just been heard.

For the first time in Australian legal history, a judge needed to hear an exposition of Aboriginal law and decide whether the laws of Australia were obliged to treat Aboriginal land tenure as binding for non-Aboriginal Australians. He had to answer the question: is Aboriginal customary ownership an enforceable proprietary right?

Blackburn’s judgement in 1971 came in two parts. Yolngu did have a continuing customary law that included concepts of land tenure. But Yolngu concepts of “ownership” didn’t amount to what counts as an enforceable proprietary right in Australian law.

For the second time, Yunupingu found himself on the losing side of a battle he had grown up with. But the twenty-three-year-old had contributed significantly to the judge’s grasp of Yolngu customs, and the case had given him, and the Yolngu clans, unprecedented credibility. In the two parts of Blackburn’s judgment it became possible to see a gap between morality and law. If Yolngu were still living by their own concept of what was right, were Australians not under a moral obligation to recognise them as owners of the reserve ?

The posing of this question in 1971 was an early rupture in Australian colonial consciousness, and it had been made possible by a coming together of enlightened Methodism, Yolngu territorial practice and the Australia’s common law. Without Yunupingu’s (and others’) skill in translation, this productive interaction would not have been possible.

What followed, within a few years, was a bipartisan commitment to land rights legislation. A sufficient number of Australians had seen in Blackburn’s ruling an implicit indictment of the laws they had been living by. That insight has continued to cascade through Australian law and politics: Mabo, Wik, the case for constitutional recognition.

The Garma Festival, which Yunupingu and his brother, Dr M. Yunupiŋu, established in 1999, has proved a lasting contribution to settler colonial Australia’s continuing self-examination. Self-examination doesn’t require shame and guilt, as long as it affords a respectful acknowledgement of difference — the difference, for example, between being a host and being a guest.

Being a guest, in this case on Gumatj clan land, can be rewarding. In 2018, journalist Julia Baird wrote that adopting the Garma protocols (as advised by the Yothu Yindi Foundation) had opened her up to a transformation of awareness, including an appreciation that “the offer of ‘Makarrata’ — a coming together after a struggle — was an act of remarkable generosity… they still invite us to walk with them, to understand better, which is an act of grace.” In January 2019, the Australian Financial Review named several female chief executives who had included Garma in their calendar of self-improvement. It has become a fixture on the calendar of Australia’s national politics.

Garma can also be hard. Leaders who choose the occasion to say forward-looking things about the colonial relationship can expect to be confronted. Just as the guests increasingly feel that they must be there, so the hosts take the opportunity to call them to better efforts. In 2014 Labor leader Bill Shorten hinted in a Garma speech that he favoured “anti-discrimination” language in the Constitution. The following year Yunupingu was reported as saying that the need for such an amendment was non-negotiable, while Marcia Langton got stuck into Tony Abbott’s resistance.

A year later, in 2016, Noel Pearson gave what one reporter described as a “rage-flecked” speech outlining his frustrations about constitutional recognition. At Garma 2017, prime minister Malcom Turnbull warned of the difficulty of constitutional recognition, while others lamented politicians’ lack of ambition. In 2018, Yunupingu, a member of the Referendum Council created by Abbott and Shorten in 2015, admonished Turnbull and Shorten for a lack of progress since the last festival. He had expected “detail and meaning and cleverness, not words and promises and nothingness,” according to one report.

In 2019, attending Garma was part of Anthony Albanese’s preparation for a tilt at the top job; he used the occasion to express support for the Uluru Statement from the Heart. It was a festival punctuated by fiery moments: Yunupingu expressed impatience at recognition’s slow progress and threatened to throw the Australian Constitution into the sea; Pearson, in another scathing address, accused the Institute of Public Affairs and conservative commentators of acting in bad faith.

Garma in 2022 — Yunupingu’s last, as we now know — was perfectly timed for Albanese to present his first draft of a constitutional amendment. Although he led a delegation of sympathetic MPs including federal Liberal MP Julian Leeser, it was also an occasion for Country Liberal Party senator Jacinta Nampijinpa Price to double down on her rejection of the Voice live on ABC television.

Will Yolngu in August 2023 find themselves hosting a debate, with Indigenous and non-Indigenous ranged on both sides of the debate? Almost certainly. This year’s Garma falls on the sixtieth anniversary of the Yirrkala Bark Petitions. Recognition has since become an unpredictable dynamic. What the Yolngu — under the auspices of Yunupingu’s Gumatj clan — have given Australia is an annual off-centre space of political performance where the visitors must work out how to acquit themselves honourably as guests. •

The post The translator appeared first on Inside Story.

Collaery, a former ACT attorney-general, was charged with having breached secrecy laws when he revealed that the Australian Secret Intelligence Service had bugged Timor-Leste government offices in 2004. At the time, Australia was negotiating a maritime boundary straddling a rich natural gas field in the Timor Sea. Also charged was one of Collaery’s clients, a former ASIS officer known as Witness K.

When the case eventually went to trial, Justice David Mossop accepted the Coalition government’s argument that much of the evidence needed to be kept from the public, and some of it even from Collaery himself, to protect national security. But a three-person bench of the ACT Court of Appeal, including the territory’s chief justice, overturned Mossop’s ruling.

Before the court could publish its reasons, Dreyfus’s predecessor, Michaelia Cash, directed the government’s most senior legal officers to seek to have the ruling overturned by the High Court, with a stay on the decision in the meantime. Otherwise, Cash’s lawyers argued, information “likely to prejudice national security” would be made public. Open justice was of “undoubted importance,” they said, but national security considerations had to be given “the greatest weight.”

That argument was received sceptically by chief justice Susan Kiefel and her High Court colleagues. Justice James Edelman asked solicitor-general Stephen Donaghue if the ACT chief justice’s error was merely that she “did not make the order that you sought.” Offered a choice between having the application thrown out or having the stay left in place, Donaghue opted for the latter.

Dreyfus’s termination of the prosecution left the status of the ACT Court of Appeal’s ruling unresolved. Surprisingly, he then asked the court to reconsider its decision to allow the contentious evidence to be made public. The ACT’s new chief justice, Lucy McCallum, heard the application in September, and her decision is now awaited.

The Human Rights Law Centre’s Kieran Pender, who has followed the Collaery case, says it is “very unusual” for the government to try to “relitigate” the Court of Appeal judgement. “Given the question of redactions has already been determined once by the Court of Appeal, and the government has withdrawn the High Court appeal, to attempt a second go at the Court of Appeal is remarkable.”

Instead, says Pender, “the attorney-general should get on with dropping the outstanding prosecutions of whistleblowers David McBride and Richard Boyle and reforming Australia’s lacklustre whistleblowing laws. Whistleblowers should be protected, not prosecuted in secret trials.”

Collaery believes the Albanese government is “encased” by the same circle of security advisers, in and out of the public service, who orchestrated the moves against Witness K and himself. But he can see why Dreyfus might have accepted advice against publication from ASIS director-general Paul Symon, a retired army general and former head of defence intelligence.

“When you’ve got an ex-warrior, albeit with no actual experience in the trade — when you’ve got a man of that eminence and decency, which he has, advising you that publishing the Collaery case would prejudice national security, you accept that advice,” Collaery tells me. “But it’s tripe. It was khaki dressage.”

Beyond the court actions themselves, many influential figures are incensed that responsibility for the murky chain of events stretching back to 2004 could remain unresolved.

Among them is the president of the International Commission of Jurists in Australia, John Dowd, a retired NSW Supreme Court judge and former state Liberal leader. In a letter to prime minister Anthony Albanese on 17 October he called for a royal commission looking at whether ASIS’s bugging operation broke Australian law, whether the secret service was deployed for private commercial gain, whether the national security claims for secrecy are valid, and whether Collaery and Witness K should be compensated.

Not surprisingly, Collaery also wants a royal commission. It should encompass not only the ASIS operation and its propriety, he argues, but also issues of “utter, utter treachery” he says he isn’t at liberty to discuss. Before he was charged, Collaery had security clearance to handle a range of sensitive legal issues involving intelligence agencies and personnel — the very reason why Witness K was originally referred to him for advice in relation to his misgivings about having led the Dili operation.

Collaery particularly wants a fairer outcome for Witness K, who was given a three-month suspended sentence in June last year for conspiring to reveal classified information. He contrasts the treatment he and K received with the kid-glove handling of senior ASIO and other Canberra officials who were exposed as having been compromised by the KGB when the Soviet intelligence agency’s chief archivist, Vasili Mitrokhin, handed over a vast trove of secret records following his defection to Britain via Estonia in 1992.

“We never compromised any national security,” says Collaery, “but those who did and were exposed after Vasili Mitrokhin took the stuff to Estonia were just left alone. Not even dishonourably discharged. And allowed to keep their medals and decorations and all the rest.”

Moreover, Collaery adds, “K was never a whistleblower, despite the media constantly calling him that. If anything he was leading the charge as a mutineer. And for good reason, and he wasn’t alone. The reason why they brought it down on us was to stop L, M, N, O, P, Q [from going public]. So the story’s not told.”

On the face of it, a royal commission should appeal to the new government. It could sheet home the duplicitous Timor-Leste dealings to Coalition leaders at the time of the bugging, notably prime minister John Howard and foreign minister Alexander Downer, and perhaps also other members of the cabinet’s national security committee (which would have included treasurer Peter Costello, attorney-general Philip Ruddock, defence minister Robert Hill and immigration minister Amanda Vanstone).

Yet the idea appears not to have seized Albanese — if the ICJ letter ever got to him. As his department’s acting first assistant secretary for national security, Philip Kimpton, wrote to Dowd, “We are not aware of an intention by government to pursue such a course of action at this time.”

A Labor figure knowledgeable about foreign policy issues explained why the government might be wary about looking into the 2004 spying incident. “Did it continue?” the figure asks, clearly mindful that similar intelligence-gathering activity might well have been going on under the Rudd–Gillard government.

Canberra’s fixation on securing the big undersea gas deposit now known as Greater Sunrise goes back to its first discovery in the late 1960s. Diplomacy, legal argument and espionage were harnessed to negotiate maritime boundaries with Indonesia, Portugal, Indonesia again, and Timor-Leste with the aim of bringing as much of the gas field as possible into Australia’s economic zone. This push by successive Coalition and Labor governments extended over decades.

The Witness K revelations started emerging under Labor, which continued to uphold the boundary negotiated by Downer (with help from the ASIS operation) between 2004 and 2006. It was not until 2018 that Timor-Leste, having had Downer’s 2006 border agreement nullified because it wasn’t negotiated in good faith, convinced an arbitration court at The Hague to endorse a new agreement that moved the border to the middle of the Timor Sea and gave Timor-Leste 80 to 90 per cent of the revenue from Greater Sunrise.

If a royal commission isn’t on the horizon, Albanese and Dreyfus may have opened another avenue for inquiry by creating the new National Anti-Corruption Commission. Susan Connelly, the Josephite sister who fought hard for a median-line boundary and strongly backed Collaery and Witness K, is one who has signalled a reference to the NACC.

This would put targets on the backs of Downer, who later accepted a consultancy from the leader of the Greater Sunrise consortium, Woodside Petroleum, and the late Ashton Calvert, who as secretary of Foreign Affairs supervised ASIS at the time of the bugging and on retirement became a director of Woodside. But the NACC legislation has an escape clause that allows the attorney-general to declare an investigation to be against the national interest.

Foreign minister Penny Wong seems to hope that focusing on practicalities will shift attention away from this rancorous past. In October she appointed former Victorian Labor premier Steve Bracks to broker agreement on developing Greater Sunrise. Bracks’s extensive post-political advocacy for Timor-Leste includes work on the maritime boundary.

Getting the gas field into production has become a matter of urgency for the government in Dili, which has been dipping into its Petroleum Fund — its sovereign wealth fund derived from oil and gas revenues — at an unsustainable rate. The last revenue from existing oil fields will flow into the fund at the end of this year.

If the current rate of withdrawal is maintained, the fund will run down to zero over the next decade. By 2034, according to the country’s finance ministry, Timor-Leste faces “a fiscal cliff” that will necessitate a “radical cut in all spending.” Using similar language, the World Bank has referred to an “inescapable macro-fiscal cliff in the next decade.”

“Timor-Leste is a petro state without much petrol,” says the respected Dili-based think tank La’o Hamutuk in a recent report. The government’s policies “continue to be based on blind faith that, because oil money has carried the country thus far, it will continue to do so indefinitely.”

Politicians in Dili follow former prime minister Xanana Gusmão in pushing for Greater Sunrise to be connected by pipeline to Gusmão’s Tasi Mane scheme. Forecast to cost US$15–20 billion, this complex on the island’s south coast would include an oil refinery, LNG plant, offshore gas and onshore oil pipelines, and a supply base for offshore petroleum projects, along with transport infrastructure and new towns.

Woodside Petroleum and many oil industry experts say the proposed pipeline is too risky. It will need to traverse the 3000-metre-deep, steep-sided, unstable Timor Trench between the gas field and the coast. Other analysts say its revenue and employment benefits have been wildly exaggerated by Tasi Mane’s proponents. Dollar for dollar, investing in coffee production could create six times as many jobs and six times as much GDP growth per dollar as investing in Tasi Mane, says one recent study.

The alternatives to the Greater Sunrise pipeline would be a floating LNG plant, or a connection to existing pipelines in the Timor Sea to transport the gas to Darwin for processing. Timor-Leste would still get most of the revenue but would need to stump up far less capital and would avoid the risk of pipeline failure. Australia might be seen to be getting an undue share of the benefits, though, despite its perfidy.

In September newly elected president José Ramos-Horta tried to pressure Canberra into overruling Woodside’s objections by threatening to bring in China to take over the project. Although China’s banks are reported to have already turned the project down as unfeasible, a Chinese state oil firm is said to maintain a permanent desk inside the office of Timor-Leste’s tiny state oil firm, TimorGAP. Xi Jinping, the Chinese leader, has not always put economics ahead of political-strategic factors.

TimorGAP, meanwhile, has released selected passages from a report by British oil industry consultants ERCE claiming that the running costs of the Tasi Mane and Darwin processing options are much the same. TimorGAP is still refusing to release the full 130-page ERCE report, says La’o Hamutuk, despite Ramos-Horta saying, on his Canberra visit, that this would be helpful.

Adelaide consultancy EnergyQuest says it would be far more productive for all parties to be talking instead about plate tectonics. The Indo-Australian plate is moving north at seven centimetres a year, meaning it would move 1.5 metres over the life of the project. “Building a pipeline [to Timor-Leste] subjected to the full force of one of the most rapid tectonic plate movements in the world is an idea that should never have got off the ground,” says EnergyQuest.

But the country’s successful independence struggle left a complex legacy. “In 1999, Timor-Leste ousted the Indonesian occupiers in defiance of ‘experts’ around the world who told them it would never happen,” wrote La’o Hamutuk’s Charles Scheiner in the recent report. “In 2018 they transcended ‘expert’ advice again, coercing Australia to agree to a fair maritime boundary.”

As a result, says Scheiner, “some Timorese leaders, especially veterans of the independence struggle, now believe they can accomplish anything, regardless of physical or economic realities.” That means Steve Bracks has his work cut out if he is seeking to pierce what some call a “mystical” belief in the pipeline — especially if, as seems likely, pipeline-proponent Xanana Gusmão returns as prime minister after next May’s election.

But Bracks may emerge as an envoy to Canberra rather than to Dili, persuading the Australian government to detach Woodside Petroleum from its lead position in the Greater Sunrise consortium, perhaps through a buyout, and let Timor-Leste take the running and the risks. Woodside has already written the value of its 33 per cent stake down to nothing and has plenty of other projects to keep busy with. Continuing to run Woodside’s case makes Australia look selfish and colonialist, say critics.

Bracks’s ability to persuade would be strengthened if Canberra showed any contrition over the spying and lack of good-faith negotiations — by holding a royal commission or other review, by apologising, and by rejoining the jurisdiction of the International Court of Justice on maritime boundaries, from which Downer withdrew Australia in 2002.

The current limbo is far from satisfactory, says Bernard Collaery. “All it does is leave Australia’s great moral issue in ambiguity.” •

The post Timor gaps appeared first on Inside Story.

Juror No. 10: Well, do you believe his story?

No. 8: I don’t know whether I believe it or not. Maybe I don’t.

No. 7: So what’d you vote not guilty for?

No. 8: There were eleven votes for guilty. It’s not so easy for me to raise my hand and send a boy off to die without talking about it first.

So begins the dramatic core of Twelve Angry Men, a 1950s teledrama, and later a movie and a play, that tracks a New York jury debating a murder charge. Writer Reginald Rose specified a jury of twelve men — even though women were seated on New York juries by then — perhaps to ensure that the twelve-handed discussion remained believably angry. But not too angry, which is why he specified an all-white cast to debate the fate of the “boy” he coded as an unspecified minority.

When many of us recently watched the real deliberations of eight women and four men about an alleged rape in the national parliament building, we did it in the usual way: from outside a locked door. Only twelve people were allowed to know what was said or done in that Canberra jury room, and it remains a crime for any of them to reveal anything to anyone who is likely to tell the public.

Highly trusted confidants aside, the rest of us have very little to go on. Attendees at Rose’s fictitious courtroom in New York City heard the jurors ask to inspect two exhibits — the knife used in the killing and a floorplan of the apartment where it occurred — before the jury announced its verdict. But the real jury in Canberra neither asked about evidence nor delivered a verdict.

They said just two things in public. The first was on the morning of their third full day of deliberations, a Monday, when they asked their trial judge, ACT chief justice Lucy McCallum, about “time expectations.” Gone are the days when jurors were detained in the jury room and put up at city hotels until they reached agreement. Modern jurors simply commute to and from their homes like other court officers. That’s why McCallum answered, “There is no rush, no time limit. The only expectation is you remain true to your oath.”

Their second communication came the following afternoon. According to the chief justice’s summary, their note said that they were “unable to reach a unanimous verdict.” Like juries in New York but unlike most other Australian ones, Canberra juries don’t have the option of a majority vote. So McCallum, following a practice laid down by the High Court in 1993, told the jurors to persist a while longer but scrupulously avoided suggesting a consensus would be the best outcome.

She also embellished the national court’s script by sending them home to visit a gym or walk a dog. The jury dutifully spent the entire next day talking, before opting — fatefully — to sleep on things for at least one more night. “No one could suggest you’re not working extremely hard,” soothed their judge.

And that’s all we know. Nevertheless, I’ll venture a few educated guesses about what went on behind closed doors.

My first guess is that the Canberra jurors probably weren’t angry during those five or so days of deliberation. I say that because angry jurors often use communications with the judge to vent or try to resolve their differences. My optimistic reading of the Canberra jury’s relative silence is that their disagreement about the verdict was reasonably friendly.

My second guess is that emotions within the jury room would still have been very high. Except in the dullest or easiest of cases, jurors almost always describe their deliberations as intense experiences, sometimes shattering or even life-changing. There’s every reason to think that’s true of this particular case, which has prompted hard discussions everywhere. There’s no reason to think that #MeToo stops at the jury room door.

My final speculation is that all twelve jurors were probably gobsmacked when their deliberations were abruptly ended.

•••

Guard: Is there anything wrong, gentlemen? I heard some noise.

Foreman: No. There’s nothing wrong. [He points to the large diagram of the apartment.] You can take that back. We’re finished with it.

[The guard nods and takes the diagram. He looks curiously at some of the jurors and exits. The jurors still are silent. Some of them slowly begin to sit down. No. 3 still stands at the window. He turns around now. The jurors look at him.]

Three jurors switch their votes during Twelve Angry Men’s second act, which ends with No. 8 goading his main antagonist into attacking him. No. 3’s cry of “I’ll kill him!” — the very words the prosecution says prove the accused’s wish to murder his father — prompts two more jurors to switch sides, evening the vote. It also prompts the (imaginary) outside world’s only intrusion into the jury’s deliberations.

The sanctity of the jury room is no empty principle. It is enforced not just by physical restrictions on who can enter the room but also, for centuries, by rigid legal limits on what information can leave it. In 1785, England’s most celebrated chief judge, Lord Mansfield, famously refused to act on evidence that an evenly divided jury had reached its verdict by tossing a coin, declaring that doing so “would endanger every verdict.”

Two hundred and thirty years later, Australia’s High Court ordered a partial end to trial judges showing the prosecutor and defendant the complete text of notes sent from the jury room, ruling that they should omit any information about what votes had been cast. The nation’s top court ruled that keeping such details secret “enables jurors to approach their task through frank and open discussion knowing that what is said in the jury room remains in that room.”

The Canberra case illustrates the high stakes. Imagine if, after their fifth day of deliberations, word got out of how the numbers were falling. Such news would have instantly poisoned the ongoing trial — casting a shadow over every subsequent decision by the lawyers or judge — and could have derailed any future one. Likewise, if the content of the jury’s conversations had leaked, both current and future deliberations would be tainted.

Unsurprisingly, the ACT Supreme Court is scrupulous about jurors’ privacy. The chief justice opted to paraphrase the jury’s second note rather than read it out. Court officers responsible for jurors swear an oath that they will “not speak to any juror… concerning the issues before the court.” They also give jurors boxes for storing their documents. And, as McCallum revealed on what should have been the jury’s sixth day of deliberations, “routine tidying” is carried out by “three sheriff’s officers,” a number surely chosen to reduce individual officers’ temptation to snoop.

And yet, in perhaps the most closely watched trial in Canberra’s history, and at perhaps the most closely watched moment of the proceedings, all of these protections failed. At least three things went wrong on the Wednesday evening. First, an officer “accidentally bumped one juror’s document folder onto the floor.” Second, that same officer, while putting the box back on the chair it came from, looked, again seemingly accidentally, through the folder’s “clear front.” And third, presumably instinctively, the officer read some words visible inside.

Had any of these things been done deliberately, the officer would surely have lost their job and potentially their liberty. But McCallum assured the public that the officer acted “inadvertently.” She went further: “The conduct of the sheriff’s officers involved in this trial has been exemplary. They have worked in difficult circumstances. The court is fortunate indeed to be so well served.”

But the officer’s personal blamelessness does not absolve McCallum’s court. Why did any of the jurors’ folders have a “clear front”? How did “tidying” involve any contact with a juror’s folder, much less risk bumping it to the floor? Why weren’t officers instructed to leave fallen items where they lay? Indeed, why were any non-jurors “routinely” entering the jury room at all, rather than (say) leaving whatever tidying was needed to the twelve adults within?

Such questions could scarcely have escaped the jury’s attention on the final day of the trial, and will surely occur to future Canberra jurors too. My guess is that all of these questions are now being given urgent attention by McCallum, who only became the head of the ACT judiciary at the start of this year.

But her court was “fortunate” this time. The officer who read the words visible in the juror’s folder saw no tallies, no intimate reveals, no checklists, indeed nothing written by any of the jurors. And the officer not only resisted the temptation to read further or open the box, but instead quickly fessed up to what happened. (McCallum recorded her “gratitude for the courage, integrity and good sense displayed” not only by the officer but also by their two colleagues.)

Best of all, the series of accidents proved serendipitous. The officer happened to uncover the only category of jury room leak that modern courts are allowed to act on.

•••

[Juror no. 8 swiftly flicks open the blade of a switch knife and jams it into the table next to the first one. They are exactly alike. There are several gasps and everyone stares at the knife. There is a long silence.]

No. 3: (slowly amazed) What are you trying to do?

No. 10: (loudly) Yeah, what is this? Who do you think you are?

No. 5: Look at it! It’s the same knife!

Foreman: Quiet! Let’s be quiet.

[They quiet down.]

No. 4: Where did you get it?

No. 8: I got it last night in a little junk shop around the corner from the boy’s house. It cost two dollars.

Twelve Angry Men’s most memorable scene features two out of five instances of juror misconduct identified by Berkeley law professor Charles Weisselberg in an article he published on the movie’s fiftieth anniversary, titled “Good Film, Bad Jury.”

The fictitious jury’s first bad step is when No. 8 brings something into the jury room that isn’t part of the trial evidence. The Canberra sheriff’s officer’s glimpse revealed that a juror seemingly did the same, bringing “an academic paper” into a trial that otherwise consisted only of testimony, CCTV footage and clothing.

Safety concerns about knives aside, I’m not convinced these are bad acts on their own. Jurors are no longer excluded from their own homes while deliberating and are not required to enter the jury room naked. There’s no reason why they can’t inspect their own belongings at night and bring relevant items in to show to others. Given that Rose’s fictitious prosecutor claims that the murder weapon — identical to one the accused was seen purchasing that day — is unique, why couldn’t a juror check that claim against a knife he owns, and show the jurors if the comparison is revealing?

Rather, the problem is that the knife No. 8 jams into the table isn’t his own, or at least wasn’t until he sought it out and bought it the previous night. That was the second instance of misconduct on Weisselberg’s list. The ACT’s Jury Handbook tells jurors: “Do not make searches on line or visit any place relevant to the case.” No. 8 does the latter. And everyone assumes that a Canberra juror obtained that academic paper by doing the former, perhaps when they were meant to be walking a dog or lifting weights.

And that made Chief Justice McCallum angry. She pointed out that she gave “at least seventeen, and possibly more” warnings to jurors against conducting their own investigations. Most of those were end-of-day reminders in these terms: “Please don’t go googling Brittany Higgins or Bruce Lehrmann or any of the other people you have heard mentioned. Please don’t seek out publicity in relation to this case. For the reasons I explained before, it would be very unfair to the accused if you sought information outside what you are going to hear in evidence in these proceedings.”

But, as far as anyone knows, no juror did anything in this list. The academic paper in the juror’s folder would surely have been written years before the events that were the subject of the trial. It did not mention anyone in the trial, or any place in it, or anything written about it, and contained nothing that the jurors heard in evidence.

Rather, the juror was suspected of conducting some general research about the outside world, akin to a New York juror scanning the shelves of his neighbourhood “junk shop” for switchblade knives. In her opening remarks, the chief justice explained that that wasn’t allowed either.

“You should only be learning about this trial in this room in my presence,” she said. “So, if you find yourself getting curious and undertaking internet research or talking to people about their areas of expertise, think to yourself, ‘Well, Chief Justice McCallum isn’t here so I probably shouldn’t be doing this.’ That is not a bad way of testing what you should hear in this trial. You should only hear the evidence in this trial in my presence when it comes before you in this courtroom.”

McCallum concluded this explanation by saying, “I hope that makes sense.” But Twelve Angry Men demonstrates why it doesn’t.

•••

No. 8: Look at this. [No. 8 closes the knife, flicks it open, and changes the position of the knife so that he can stab over-handed.] Doesn’t it seem like an awkward way to handle a knife?

No. 3: What are you asking me for?

[No. 8 closes the blade and flicks it open, holds it ready to slash underhanded.]

No. 5: Wait a minute! What’s the matter with me? Give me that.

[He reaches out for the knife.]

No. 8: Have you ever seen a knife fight?

No. 5: Yes, I have.

No. 8: In the movies?

No. 5: In my backyard, on my stoop, in the vacant lot across the street, too many of them. Switch knives came with the neighbourhood where I lived. Funny I didn’t think of it before. I guess you try to forget those things. [Flicking the knife open.] Anyone who’s ever used a switch knife would never have stabbed downward. You don’t handle a switch knife that way. You use it underhanded.

Rose’s angry men never solve the murder mystery at the heart of the case, or even come close to doing so. No alternative suspect or motive or means or opportunity ever emerges. Rather, the teleplay charts how each of the twelve learns a little more about the courtroom trial they just watched by talking it over with others.

No. 5 teaches his fellow jurors how to fight with a switch knife (and also about assuming who grew up in a slum). No. 8 schools them about the US constitution’s fifth amendment. No. 3 monologues an unwitting lesson in being a terrible father, No. 7 in being a terrible fact-finder, No. 10, a terrible racist. Several speak of life next to a noisy train line.

After No. 8 uses some back-of-the-envelope maths and the apartment map to demonstrate that a witness downstairs couldn’t have heard or saw what he testified he did, No. 9 speculates that the lonely, elderly witness might have lied to make himself feel important. Asked where he got “that fantastic story,” he explains, “I speak from experience,” prompting a “long pause.” The script’s many silences are central to the drama.

Rose’s point isn’t subtle. Each of these lessons causes at least one juror to switch his vote. But McCallum wasn’t subtle either. None of this learning was to happen in her jury room: “You mustn’t try to undertake your own inquiries or try to re-enact any aspect of the offence or consider any external evidence about the consumption of alcohol or about any matter that might arise during the trial. You must rest exclusively on the evidence you hear in this courtroom.”

Professor Weisselberg would side with her. He rounded out the twelve angry men’s “buffet of misconduct” with No. 5’s “expert testimony about the use of switchblade knives” and No. 8’s calculations about trains and apartments.

But are the chief justice and the professor right? If the juror’s folder had simply contained the juror’s own notes about another juror’s reflections on the “consumption of alcohol,” or detailed a re-enactment of walking through a ministerial suite, would that also have required the trial’s premature end? What if the notes revealed that — as is surely possible — one or more of the Canberra jurors had described their own experiences of rape?

The sanctity of the jury room mostly stops us from considering these questions, but sometimes courts must confront them. In 1999, an English court was asked to judge a movie-like scenario in a mundane case about whether some tyres were stolen or legitimately purchased. The jury wrote the judge a note revealing that one of their number happened to be a “tyre specialist” who knew how to read a tyre’s serial code to determine when it was made. “May we take this into consideration?” they asked.

The question flummoxed their trial judge, who failed to get back to them before they found the accused guilty. But the Court of Appeal overturned that verdict, ruling that the jury should have been told to ignore their fellow juror’s insights. Here’s the judges’ valiant attempt to explain why:

It was not improper for a juror who was not a lawyer and who had specialist knowledge of circumstances forming the background of a particular case to draw upon that specialised knowledge in interpreting the evidence. However that knowledge was not to be used as evidence but as a means of considering, weighing-up and assessing the evidence before the court.

Surely they were tempted to add, “I hope that makes sense.”

•••

No. 4: She did wear glasses. Funny. I never thought of it.

No. 8: Listen, she wasn’t wearing them in bed. That’s for sure. She testified that in the midst of her tossing and turning she rolled over and looked casually out the window. The murder was taking place as she looked out, and the lights went out a split second later. She couldn’t have had time to put on her glasses. Now maybe she honestly thought she saw the boy kill his father. I say that she saw only a blur.

No. 3: How do you know what she saw? Maybe she’s far-sighted.

[He looks around. No one answers.]

No. 3: (loudly) How does he know all these things?

[There is silence.]

No. 8: Does anyone think there still is not a reasonable doubt?

[He looks around the room, then squarely at No. 10. No. 10 looks down and shakes his head no.]

This exchange leaves Rose’s fictitious jury again split 11–1, this time in favour of “not guilty.” But Professor Weisselberg baulked at adding this discussion to the jury’s “buffet of misconduct,” explaining that “the jurors confront a lack of evidence on a key point, but they appropriately treat it as relevant to the existence of reasonable doubt.” Four professors at the same symposium condemned that discussion for a different reason: that the jury’s speculation about the witness’s eyesight was tendentious and didn’t account for her crystal-clear testimony.

When I first learned the topic of the academic article in the Canberra jury room — the prevalence of false allegations of rape — I felt the same way. Absolutely no one knows, or can know, how many or how few rape allegations are false. All we can ever know is that some allegations proceed to investigation, prosecution and, for a few, conviction, and most don’t. But there is no way to know whether most of those allegations are true or not. The rest is just guesswork, and such guesses mean little or nothing during a particular rape trial.

But then I read Chief Justice McCallum’s summary of the juror’s article: “It is a discussion of the unhelpfulness of attempting to quantify the prevalence of false complaints of sexual assault and a deeper, research-based analysis of the reasons for both false complaints and scepticism in the face of true complaints.”

In short, the unidentified article teaches everyone, including jurors, why the issue of prevalence goes nowhere.

After questioning the juror in private, McCallum revealed that they gave “an explanation that the document was not used or relied upon by any juror.” Given the incentives to dissemble and the difficulty of checking, the chief justice responded to such claims about goings-on in the jury room with appropriate scepticism. It sufficed that the academic paper was present in the jury room and “could be deployed to support either side of the central issue in this case.”

Is it true, though, as she declared, that it is “neither possible nor helpful to speculate as to the use to which this information might have been put in the jury room, if any”? I’m sceptical. Here are my guesses about what may have happened behind closed doors.

My first guess is that the prevalence of false rape allegations was indeed discussed in the jury room, probably quite often. I say that because the same issue was raised by almost every person I spoke with about the Canberra case, and most other rape trials as well. Indeed, on the middle weekend of the jury’s deliberations, journalist Louise Milligan complained to the capital’s lawyers that “there are still a significant minority of people who continue to, automatically, assume (against all evidence in international research and tendered to royal commissions) that there are multitudes of false accusers.”

My second guess is that one or more jurors would have nominated a particular fraction of rape allegations as false, according to academic studies. I say this because googling “number of false rape allegations” immediately yields a claim that “a range of studies show approximately 5 per cent of rape allegations are proven false.” This claim is sourced to a “fact sheet” from Victoria Police and the Australian government’s Institute of Family Studies, created as a resource for police and legal practitioners about fifteen “rape myths.” The 5 per cent figure is cited to dispel the “myth” that “the rate of false allegations is high.”

My final speculation: that the juror who brought in the academic article may have done so to help teach their fellow jurors why such figures aren’t reliable enough to be used in a jury room.

•••

[No. 3 looks around at all of them for a long time. They sit silently, waiting for him to speak, and all of them despise him for his stubbornness. Then, suddenly, his face contorts as if he is about to cry, and he slams his fist down on the table.]

No. 3: (thundering) All right!

[No. 3 turns his back on them. There is silence for a moment and then the foreman goes to the door and knocks on it. It opens. The guard looks in and sees them all standing. The guard holds the door for them as they begin slowly to file out. No. 8 waits at the door as the others file past him. Finally he and No. 3 are the only ones left. No. 3 turns around and sees that they are alone. Slowly he moves toward the door. Then he stops at the table. He pulls the switch knife out of the table and walks over with it. He holds it in the approved knife fighter fashion and looks long and hard at No. 8, pointing the knife at his belly. No. 8 stares back. Then No. 3 turns the knife around. No. 8 takes it by the handle. No. 3 exits. No. 8 closes the knife, puts it away and taking a last look around the room, exits, closing the door. The camera moves in close on the littered table in the empty room, and we clearly see a slip of crumpled paper on which are scribbled the words “Not guilty.”]

That’s how Rose’s teleplay ends. The movie opts for a different ending, which you can watch on YouTube. Crucially, in that version, No. 8’s knife is left lying on the jury room table. In real life, it would have been swiftly discovered by a bailiff and would launch an inquiry into juror misconduct. If it was found quickly enough, it might have condemned the accused to a retrial and, perhaps, worse.

An observant journalist afforded a Canberra juror a final word, reporting that they “swore under their breath and put a hand to their head as it was announced they could not continue.” We can all guess that word. But who was their anger directed towards? The sheriff’s officer? The chief justice? Another juror? Themselves? On that question, the jury’s out. •

The post Twelve vexed Canberrans appeared first on Inside Story.

HEDLEY THOMAS: This is episode… of The Teacher’s Pet. Listeners are advised, this podcast contains coarse language and adult themes. This podcast series is brought to you by the Australian.

NEWS PRESENTER: Lynette Dawson was reported missing by her husband, former Newtown Jets Rugby League star, Chris Dawson.

JC: He said, I was going to get a hit man to kill Lyn, and he rang me and said, Lyn’s gone. She isn’t coming back.

JULIE ANDREW: I just want justice, and I’d love her little girls to know she didn’t leave them.

Streamed at length to tens of thousands of viewers last Tuesday via YouTube, Justice Ian Harrison twice dropped big hints about his answer to the mystery. At the eighteen-minute mark he declared himself satisfied that the high school teacher lied when he claimed that Lynette told him she had left him. At the seventy-four-minute mark he took the view that the little girls’ mother didn’t voluntarily leave them.

And yet the judge took nearly four more hours to get to his verdict, for the same reason that Hedley Thomas took an entire podcast series to hammer home his. He had to deal with the string of Dawson’s contemporaries who have come forward to denounce the ex-footballer as a violent creep who routinely abused his wife and was looking for criminals willing to do worse.

At the end of his podcast’s initial run, Thomas told 60 Minutes that he believed his informants’ account of the accused. Dawson “is a despicable person; I think he’s severely narcissistic,” he said. “I think that he’s dangerous.” Tuesday’s twist was that Harrison disagreed, finding that most of those belated testimonies were lies, embellishments or irrelevant, and instead holding — to audible gasps from the public gallery — that Dawson “is a person of prior good character.”

The judge specifically rejected multiple reports that the ex-footballer had struck or choked or threatened his wife, and dismissed the notion, proposed by the prosecution, that he had any tendencies, motivations or animosity towards her that were relevant to the murder trial.

Where does that leave Thomas’s podcast? Before I answer that, I should set out my own take on the journalist’s view that Dawson is a murderer, which I summed up in Inside Story four years ago:

Thomas’s view is widely shared by other journalists who have covered the case, as well as by a bevy of investigators, relatives and pundits and, now, by the millions of listeners to his podcast. While plausible, there is hardly any evidence to support it. Instead, The Teacher’s Pet is largely an attack on Dawson himself.

That “hardly any evidence” I mentioned? That’s exactly what Dawson’s judge relied on to reach his guilty verdict.

But what swayed Harrison wasn’t Chris Dawson’s character; rather, it was his wife Lyn’s. He firmly rejected as gendered and unfair any assumption that women never abandon their children. After all, everyone accepted that a Dawson in-law had done just that decades before Lyn vanished. But he did accept what nearly everyone said about Lyn Dawson: that it was absurd to think that someone with close family and friends who had little money of her own and couldn’t drive — someone who was trying to salvage her failing marriage — would suddenly and permanently “propel herself into a life of anonymity in a figurative state of nakedness.” It was still less likely that she’d keep only her unfaithful husband in the loop, and tersely, as he repeatedly claimed. Hence, Harrison’s findings that Lyn died and Chris lied.

That wasn’t enough to convict, though. The judge accepted that he needed to find a convincing reason why an otherwise non-abusive relationship would end with one spouse killing the other. The reason, of course, was the former schoolgirl, now in her fifties and referred to as JC, who told the court that Dawson had groomed her while teaching at her school, culminating in what Dawson later termed an “affair.”

But even that didn’t suffice to explain a murder, Harrison said, noting that affairs and failed marriages are commonplace. To the judge, it was clear that Dawson had plenty of better ways to leave his wife for JC and no good reason, financial or otherwise, to substitute a teenager for Lyn as his young children’s effective mother.

What killed Lyn, Harrison decided, was her husband’s jealousy. His obsession with the student eventually focused on her relationships with people her age, he said, especially when the teen left him for a beachside holiday a week before his wife disappeared. The upshot: “I am satisfied that the prospect that he would lose JC so distressed, frustrated and ultimately overwhelmed him that, tortured by her absence up north, Mr Dawson resolved to kill his wife.”

And so he did, Harrison found. Then, after faking a phone call to a local pool for cover, Dawson disposed of his wife’s body and phoned JC to tell her: “Lyn’s gone. She isn’t coming back. Come back to Sydney and help me look after the children and be with me.”

Whether an appeal court agrees with that theory remains to be seen. But Harrison’s take vindicates a central theme of Thomas’s podcast: that the former footballer’s day in court should have come decades earlier. Nearly all of the evidence the judge relied on was known to the police by the early nineties, when Dawson’s second marriage — to JC — ended. (In response to the defence’s claim that the story JC gave the police was invented to advance a custody dispute with Dawson, Harrison pointedly observed that JC herself was “only a child” when Lyn vanished.)

If Harrison’s reasoning is right, then so were the two coroners who recommended prosecution in the early 2000s. Seemingly in the wrong were lackadaisical cops during the eighties and nineties, former prosecutor Nicholas Cowdery (who repeatedly refused to bring the murder charge)… and me.

Does that mean the Walkley Foundation’s judges were right to call Hedley Thomas’s podcast “a masterclass in investigative journalism”? Several other judges have firmly said no. “I have listened to the podcast,” wrote the then chief justice of New South Wales, Tom Bathurst, a year ago, “and regard its object was to incite prejudice against [Chris Dawson] in a sensationalist fashion.” This was no idle review by Bathurst, who sat alongside two other judges. The septuagenarian Dawson spent the pandemic asking multiple courts to stop his murder prosecution in its tracks, citing the coldness of the case against him, the incompetence and bias of police who investigated him and, above all, the impact of the podcast.

Thomas was required to hand over most of his notes and interviews to Dawson and the court. This May (after a suppression order was lifted) we learnt how this particular sausage was made. Part of that story was Thomas’s approach, near the start of 2018, to a former solicitor, Rebecca Hazel, who had met JC by chance a decade earlier. In the years since, Hazel had developed a warm friendship with JC and was writing a book, The Schoolgirl, Her Teacher and His Wife. Thomas convinced Hazel that her book and his podcast — which he had started work on a few months earlier — should be published in unison.

Hazel later ruminated to the court that Thomas’s real interest was in her hard-won contacts. Her friendship with JC suffered after the now fifty-four-year-old eventually decided she wanted nothing to do with Thomas’s podcast. Until the deal collapsed, though, Hazel sat in with Thomas’s interviews. She told the courts that his journalistic style — which commenced by telling his interviewees that Dawson was a killer — left her uncomfortable.

It made the judges uncomfortable too, as did the revelation that those words of JC’s that opened each podcast episode — and gave the impression that Dawson told her that he’d hired a hitman who caused Lyn to disappear — were stitched together from two entirely separate remarks. Worse still was Thomas’s convincing of most of Hazel’s contacts — Lyn Dawson’s grieving family, some coronial inquest witnesses and, incredibly, Chris Dawson’s family lawyer and one of the coroners (both of whom were magistrates by then) — to endorse the podcast or even publicly condemn a murder suspect under active investigation.

And then there was the podcast’s attack on then director of public prosecutions Lloyd Babb, who attended Dawson’s school, even though Thomas was well aware that Babb would play no role in the charging decision. Elizabeth Fullerton, the judge who heard the whole pre-trial application, held that the journalist “deliberately raised the false spectre of impropriety” just to put more pressure on the prosecutor assigned to the case. After Thomas spent days on her witness stand, the judge observed that he “gave no indication that he had gained any insight into the damage he has done… and no obvious awakening of his ethical role as a journalist.”

Nor has he since. After Dawson was found guilty, Thomas publicly claimed (citing “senior lawyers” and “former and current police officers”) that his podcast was “a factor in the DPP’s decision to prosecute.” Thomas had said as much to Justice Fullerton, telling her he thought “public pressure” from his podcast and Lyn’s family “might cause the DPP to look at something properly,” a statement she labelled “breathtaking” and  something the prosecutors have always denied (including just last week).

Fullerton found that the brief of evidence the prosecution accepted was actually completed six months before Thomas started working on the podcast and sent to prosecutors a month before its launch. Notably, that brief already included Thomas’s supposedly biggest discovery, a 1982 missing person report supplied by Dawson. The cops had found that previously lost statement in 2015, three years before Thomas’s announcement on his podcast that he had been handed it by an “unlikely source.” (Weeks later, he said he got it from the ombudsman.)

To be sure, it’s all too easy to imagine the prosecutors buckling under the public pressure, and Dawson’s lawyers argued that any such perception was itself poisonous. After all, Thomas claimed throughout his podcast that he had “new evidence” for the police. (Justice Fullerton found that he actually had “little” that the investigators didn’t already have.)

Added to that, a Sydney radio personality had publicly convinced the then police commissioner to order his investigators to speak with Thomas. (Fullerton fretted that the commissioner himself was trying to influence the prosecutors, but opted for the kinder conclusion that he was just fooled by Thomas’s bluster.)

And, of course, the decision to charge Dawson came mere days after the podcast’s Gold Walkley. (It was also weeks after extensive digging at the former matrimonial home, at Thomas’s behest, uncovering nothing. A dirty cardigan previously found there was one of many pieces of evidence ballyhooed on the podcast that went unmentioned in the judge’s reasons.)

But, while it’s unlikely that The Teacher’s Pet prompted a murder trial, neither did it stop one. The courts rejected all of Dawson’s arguments that he couldn’t be properly tried, albeit by a whisker. Nevertheless, Hedley Thomas can clearly claim credit for some things.

For starters, he delayed Dawson’s trial by several years, with the courts ordering a pause until mid 2021 (in the hope that Sydney’s jurors would somehow forget Thomas’s podcast ever existed) and the High Court adding nine more months before it decided not to hear a further appeal from Dawson based on the lower courts’ criticisms of the podcast.

The podcast was also the main reason Dawson’s fate was put in the hands of a judge rather than a jury, after the Supreme Court ruled this would avoid the difficult and potentially impossible task of finding twelve jurors who were untouched by Thomas’s podcast. (Judge Harrison assured all that he had never partaken.)

Dawson’s prosecutors had wanted a jury trial regardless, perhaps worrying — rightly as it turns out — that a judge would dismiss most of the character evidence but also — wrongly as it turns out — that such a judge would then acquit. The result is that, instead of an inscrutable jury pronouncement, we now have detailed reasons — over 700 paragraphs of them — for why Dawson is now in jail.

One thing those reasons reveal (which a jury trial wouldn’t have) is the exact impact the podcast had on the verdict. Four years ago, I wrote, of the podcast’s revelations:

The new evidence about Lyn Dawson’s disappearance consists of decades-delayed revelations from family, neighbours, friends and acquaintances, each apologetic for not saying anything earlier about Chris Dawson’s allegedly odd behaviour or the bruises on his wife’s arm… [N]early all of this new evidence has a common flaw: it was generated not by Thomas’s gumshoeing but by the podcast itself. If [Dawson is] eventually prosecuted, [he] can compellingly argue that the new statements are distortions or fabrications prompted by Thomas’s own lurid claims.

And that’s what Dawson’s barrister, Pauline David, did. It was her only successful argument.

In the middle hours of his reasons, Harrison threw out virtually every witness Thomas uncovered or even spoke with at length — from the man who claimed Dawson asked him to find a hitman, to witnesses who claimed to have seen bruises on Lyn’s arms or throat, or heard her describe being choked or pushed in the mud — unless they had given the same account to the police well before they were interviewed for the podcast. He likewise threw out every defence witness who had seemingly only come forward because of all the publicity.

In short, The Teacher’s Pet stopped both sides from usefully investigating Lyn’s disappearance after the start of 2018. At his trial, Dawson’s lawyer argued that this hindrance, plus the police’s failure to gather key documents, since lost, or to speak with key witnesses, since deceased, and the delays that prevented Dawson doing the same, left him at an unfair disadvantage. Harrison disagreed, noting that his prosecutors were just as affected. Again, it remains to be seen whether Dawson’s appeal judges will agree.

Last May, a new Chris Dawson podcast launched:

JOURNALIST: Happy that finally it’s under way now?

CHRIS DAWSON: Yes, very happy.

HEDLEY THOMAS: My name is Hedley Thomas and I’m a journalist with a particular interest in podcast investigations into the alleged murders of women in Australia. This is the first episode of our new podcast series, The Teacher’s Trial.

This is Hedley Thomas’s fourth entry in the medium. His second and third podcasts followed the formula of his first. The Night Driver, which identified multiple possible suspects in the disappearance of Bathurst’s Janine Vaughan, failed to go viral. He had more success with Shandee’s Story, which reinvestigated a man acquitted of murdering his titular ex in Mackay and, like the ABC’s Trace, prompted an inquiry into the handling of DNA evidence.

His latest effort mimics a different one from Thomas’s newspaper. Yuendumu’s daily recaps of the trial of NT police officer Zachary Rolfe were a landmark in national court reporting, brilliantly letting interested people closely follow a case of enormous public interest, almost the way Americans routinely do. (The pandemic has seen many Australian courts live stream multiple proceedings of public interest, but no criminal trials to date.)

The NT Supreme Court itself took an especially open approach to the Rolfe case, eventually taking the unprecedented, but very welcome, step of publishing the whole trial transcript on its website. Its actions evinced a desire to be as open as possible and a trust in the media’s ability to report on such a sensitive case responsibly. In my view, the mutual trust was rewarded, and achieved a much higher public understanding of Rolfe’s acquittal among supporters and critics of the jury’s decision alike.

If Dawson had faced a jury, it’s doubtful that the NSW courts would have allowed anything similar. Justice Fullerton thundered that, had The Teacher’s Pet been published after the murder charge was laid, “a number of individuals and publishers would inevitably have been liable and likely convicted of a criminal contempt.” She was horrified that the podcast’s final episodes were published after the former teacher’s arrest, and noted that the prosecutors initially asked to vet The Night Driver in case Thomas somehow added to his errors. The Teacher’s Pet was eventually pulled from local sites and the media were banned from even mentioning the podcast’s name until this year.

But the ruling that gave Justice Harrison the jury’s role — itself prompted by The Teacher’s Pet — made The Teacher’s Trial possible. We’re better off for the coverage it provided. I’ve little doubt that reporters Matthew Condon, Claire Harvey and David Murray shared their co-host’s view about Dawson’s guilt, but it was refreshing to hear them refrain from stating it. Instead, their podcast gave detailed but fair summaries — sometimes even with counterarguments — of the prosecution’s evolving arguments and evidence, alongside balanced, expert reflections on the trial process, crime reporting and true crime fandom.

The different tone has any number of possible explanations. Attending every day in the courtroom, the journalists may have picked up the rhythms of a real trial, which — unlike Thomas’s parody — alternates between arguments and responses on each and every piece of evidence. And they would have been well aware that, much as Dawson and his family once recognised, their every word could end up being raised in court.

Dawson was also able to keep Thomas himself out of the courtroom for much of the trial by having prosecutors promise to call him to testify. (Thomas’s testimony turned out to be a very muted reprise of his testimony at the pre-trial hearing. The defence instead relied on a transcript of Thomas’s earlier testimony, and even a couple of podcast episodes, to convince Harrison of the journalist’s impact on the evidence.)

That meant Thomas was reduced to a background role on his own podcast. In an early episode, he responded to some of Justice Fullerton’s findings, expressing bafflement at her critique of how he edited JC’s words and defending the media’s role in exposing official failings. He played a greater role — albeit still somewhat muted — after he testified, and even issued a belated apology of sorts to JC days before Harrison’s verdict.

At Dawson’s murder trial, JC repeatedly objected to any reference to her “relationship” with Dawson — and even her later marriage to him — describing it instead as “grooming.” In response, Thomas said he no longer felt comfortable with having referred to JC as Dawson’s “teenage lover” in his earlier podcast. He invited advocate Nina Funnell onto The Teacher’s Trial to explain how Grace Tame had endured the use of the terms “affair” or “tryst” or (in court) “maintaining a sexual relationship” to describe her years of abuse by her teacher.

But no one — not Thomas, not his co-hosts, not Funnell — mentioned the elephant in the room. How do any of these people think Grace Tame would have felt if someone made a hit podcast about her case and called it The Teacher’s Pet? (Last week, the Australian proudly celebrated Dawson’s conviction by re-releasing all twenty episodes of the 2018 Gold Walkley winner.)

Like George Pell’s case before it, Chris Dawson’s is now on a path to an eventual finale in Australia’s High Court. Much may turn on Ian Harrison’s pre-trial rulings on the admissibility of evidence, which are yet to be published.

In the meantime, let me venture a different prediction: there’ll never be a podcast like The Teacher’s Pet again. This isn’t my hope speaking — though there is that — but rather the courts. Alongside his second Walkley, Thomas can now lay claim to Justice Fullerton’s prize for “the most egregious example of media interference with a criminal trial process which this Court has had to consider.”

When Elizabeth Fullerton spoke these words, she was well aware that they would fall on Thomas’s deaf ears, but she had a different audience in mind. She had pointedly asked the journalist what legal advice he had sought about the podcast, only to be interrupted by a News Ltd lawyer who claimed privilege. She later pondered what would be worse: Thomas choosing to go ahead despite his in-house advice, or because of it. She closed her judgement with advice to prosecutors: that they should be more proactive in seeking injunctions against true crime journalism before — perhaps even well before — relevant charges have been laid. She made it clear that she would now be more inclined to grant such requests.

That may be one last thing Thomas can duly claim credit for: the end of media investigations of cases under consideration by prosecutors in New South Wales, and perhaps other states too. But my hope is for something gentler: that Fullerton’s words are not aimed at all true crime journalism, but only the malign sort that Thomas peddles. There is still, in my view, room for podcasts that, like The Teacher’s Trial, offer a semblance of the justice that the courts afforded Dawson this year. •

Note: To correct an inaccuracy, the bolded words were added to the following sentence after publication: “She was horrified that the podcast’s final episodes were published after the former teacher’s arrest, and noted that the prosecutors initially asked to vet The Night Driver in case Thomas somehow added to his errors.”

The post The podcast’s trial appeared first on Inside Story.

The defence naturally had a different story: “Everything that took place at those premises on that night was consensual.” And, consistent with the statistics on sexual assault (only one in ten reported cases results in a conviction), de Belin and Sinclair were found not guilty. On one charge, that is — the jury’s eight men and four women were unable to reach a verdict on the remaining charges.

Does it matter that twice as many men as women were sitting on that jury? It’s not customary when reporting on trials for journalists to discuss the jury’s composition, but in this case the Sydney Morning Herald’s court reporter, Georgina Mitchell, saw it as relevant.

It’s true that jurors are randomly selected from the election roll, but a recent study by the Melbourne Age found that women called up for jury service in Victoria are more than twice as likely as men to be excluded from criminal trials by peremptory challenges (the right of barristers to veto jurors without giving a reason), and even more likely if the case concerns a sexual offence.

It has always been thus. Unlike British women, who gained the right to sit on juries in the early twentieth century, Australian women had to wait until the 1990s to achieve full jury rights in every state. Until then, women were denied their power to engage in the adjudicative process or to be judged by a jury of their own peers. Female victims of sexual violence usually had to narrate the most traumatic moment of their lives to a male judge, male journalists, male barristers and a jury comprised entirely of men. An institution that was meant to be the democratic voice of a sovereign community was instead one of the most unrepresentative institutions in Australia.

While I was reading about the de Belin case my desk was piled high with archival materials detailing the tireless efforts of feminist organisations to get women on juries. Let me correct that: tireless isn’t quite the right word. By the 1940s the women had been campaigning for more than half a century, and they were exhausted. “This meeting is a waste of time,” huffed Miss Cotton in a 1942 deputation to NSW justice minister R.R. Downing. “We are not asking for a privilege; we are asking for a very unpleasant right… We think it is work we should be doing and it is our right to do it.”

Like those of us who have served on a jury, the women knew that in the bundle of rights, duties, privileges and obligations that define citizenship, jury service is most definitely a duty. “It is no privilege that women seek, but the right to take their place as full citizens with the knowledge that civil and social duties should not be determined by sex,” one woman wrote to the Melbourne Argus in the 1940s. Erna Keighley, a feminist activist from the same era, agreed: “Any community which excludes half its citizens from such activities, because of sex alone, is undemocratic.”

By the middle of the twentieth century white Australian women could vote, sit in parliament and practise as barristers and solicitors. As an editorial in the Sun put it, “The bar table, the witness box, the dock and the gaol are all open to them; only the jury box is closed.” Worse than that, women were removed from court in any case involving sex, while men were allowed to stay. As activist Annie Golding complained in 1929, “When a man is charged with a sexual offence against a young child of six, seven, or eight years of age, or against an unfortunate girl that has been seduced or outraged, the court is cleared” of women and the girl in the witness box is left “friendless.”

Queensland was the first state, in 1923, to grant women the right to sit on juries, but it was an opt-in system that required                 women to volunteer to the local sheriff. So few volunteered — and those who did were usually subject to peremptory challenges — that by 1941 only three women had served as jurors. It took until 1995 for Queensland women to gain full jury rights.

A similar story can be told of Tasmania, where women were allowed to volunteer for jury service in 1939 but didn’t have equal jury rights until 1991. South Australia denied women any right at all to sit on juries until 1965; full jury rights came in 1975. Western Australia gave women full jury rights in 1985, New South Wales and Victoria in 1977 and the Australian Capital Territory in 1979. It’s a shocking performance from a nation that likes to celebrate the fact that it granted women the right to vote and stand in parliament relatively early.

What reasons were given for the denial of this basic and not very pleasant right? Put simply: toilets. Or, as one justice minister euphemistically put it in 1942, “The greatest difficulty in the way of anything being done immediately is the provision of accommodation.” Yes, in New South Wales and Victoria the main barrier to women’s jury franchise cited by justice ministers was that courts lacked female toilets and it would cost too much money to build them.

Of course, governments were having no problem financing high-grade arterial roads, the Snowy Mountains Hydro Scheme, tramways, railways and entire new suburbs. As one “well-known Labour woman” told a NSW deputation in the 1940s: “A lot of rot! The minister is only pulling your association’s leg. Accommodation!… [T]he government can put an extra lavatory and a bit of a wooden partition in other departments quick enough, why not in the courts?”

Those courts had been built during the Victorian era, when nobody imagined a role for women in legal adjudication. Women were seen to be too irrational, too burdened by suckling infants, too sexually ignorant or too easily corrupted by sexual knowledge. Men spoke the language of the law. Women spoke the language of morality.

What comes as a surprise is that these attitudes persisted for a large part of the twentieth century. “Jurors become the judges of the facts, and so they should be worldly, impartial, logical, consistent and, in theory at least, sexless,” one commentator declared when South Australian women entered jury boxes for the first time in 1966. “Many male lawyers contend that women jurors not only lack such qualities but are often petty, moody (by nature), unpredictable and in sex cases revengeful in the cause of womanhood.”

Newspapers commented constantly on the problem of men in courtrooms being distracted by attractive women. Sheriffs worried that the state would be encumbered with the substantial costs of remunerating them for their labours of care. Inadvertently, the debate over juries raised the awkward fact that supposed labours of love, such as housework and childcare, for which women were said to be most suited were in fact unpaid work that saved government significant amounts of money.

Many of these historical injustices persist today. Rather than providing funding for female jurors with caring obligations, courts simply exempt them from service. Women continue to be targeted by peremptory challenges, quite likely leading to skewed results in a range of matters, particularly sexual assault. The cliché that women are harder on each other when judging these matters has not been borne out by research; instead, women’s shared experiences of the fear or actuality of sexual violence makes them far more capable of understanding the arguments of claimants like the woman in the de Belin case.

But the greatest continuing injustice of the jury system lies in its treatment of Indigenous people. Their criminalisation means that they are vastly over-represented among defendants and yet woefully under-represented among jurors. When the NSW Law Reform Commission last did the figures in 2009, Indigenous people represented less than 0.5 per cent of jurors. If Australia is to offer defendants “a jury of one’s peers” as a symbol of our democracy and the sovereignty of the people, then it needs to include all people and all experiences. •

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My expectations were prompted by the description on the cover, presumably put there by the publisher’s marketing department, which promises “an unflinching exploration of the fault lines in our justice system” revealing “the devastating cost of getting it wrong.”

These words suggest that The Truth Hurts is yet another indictment of how criminal justice is carried out in this country. Instead, this is the work of a practitioner reviewing rather than castigating the performance of some aspects of the legal system, more particularly the practice of criminal law. The more I read, the more the book showed me how even an enlightened and inspired system of justice (inquisitorial, adversarial or otherwise) will always struggle to deliver Solomon-esque outcomes to victims, perpetrators and innocents alike, given the panoply of human wretchedness that presents before the courts every day.

Andrew Boe recognises this. He uses the analogy of a bushfire. We can have the best firefighting tools in the world, and the most dedicated firefighters, he says, but from time to time we will experience devastating bushfires that no amount of preparedness could prevent, and it then falls to us to deal with the aftermath.

Rather than being an indictment of the criminal law as it stands, the book is a reminder of the limitations of any system that endeavours to find the causal truth of an event and set things right thereafter. While reforms to the justice system over the past thirty years — including restorative justice conferencing, diversionary pathways, therapeutic practices and Aboriginal courts, to name but a few — do their best to ameliorate the pain, it can never be completely eliminated. If anything, one of the book’s key targets is those lawyers whose poor practices and sloppy attention to detail led to outcomes detrimental to their clients.

That doesn’t mean I don’t have some reservations about how Boe frames his account. Yes, the justice system can be “uneven” (Boe’s word) at times, but this doesn’t mean that it is “stuck in its outdated and flawed premises.” Readers need to appreciate that some of the anomalies he highlights did indeed exist when he began his legal practice but have since been reformed. For example, defence counsel no longer have the same latitude in cross-examining victims of sexual assaults, a point the author concedes. Again and again Boe points to the deprived backgrounds of those who come before the courts and points to the failed social policies that allowed them to slip between the cracks. We need to accept that there’s often not a lot that the law can do, ex post facto, about that.

In setting the scene for the story of his professional life, Boe describes in a most endearing way how his father and mother decided to flee with their five sons to Australia from Burma in 1969 to escape its military regime. He then writes affectionately of a teacher who trusted him and challenged him to better himself through education. That challenge ultimately placed him in a law school in Brisbane and, on graduation, embroiled him in the life of a criminal defence lawyer.

Thereafter the book takes the reader through a long but very readable succession of case narratives. Boe’s list of clients included the convicted serial killer Ivan Milat and the conservative politician Pauline Hanson (whom he later helped exonerate). Here we see how accused persons and their counsel must negotiate a maze of legal twists and turns, with Boe capitalising very effectively on his insider perspective. His explanation of the duty that lawyers owe the court as well as their clients is clear and important. All law students would appreciate his elucidation of the cab-rank rule, the importance of the doctrine of precedent, the process of charge bargaining, and how jury selection works.

Moreover, Boe outlines the relationship between the barristers in their respective chambers, between defence and prosecution counsel, and between clients and their legal representatives. Of particular interest to me were his observations about the rules governing barrister duties, hostile witnesses, and the presumption of innocence, and his thoughts on lawyers coping with negative media coverage.

The book also tackles some of the harder issues that regularly test policymakers’ resolve: deaths in custody, infanticide, domestic violence and sexual impropriety (and the #MeToo movement). He calls out the ongoing national disgrace that is the over-representation of Aboriginal and Torres Strait Islanders in Australia’s correctional systems.

Boe makes the significant point that equality before the law doesn’t mean that all people must get the same treatment, for if “you treat situations with vastly different realities in the same way, then you will necessarily cause significant injustice to some.” This same view — that striving for equality of opportunity for unequals can only aggravate inequality — has been expressed in judicial writings for decades, most notably in the High Court judgement in Gerhardy v Brown (1985). The adage was worth repeating here.

Importantly, Boe also places firmly in the reader’s mind one of the most crucial axioms to be found in the lawyer’s notebook: that “liking a client or agreeing with their political views [is] hardly a prerequisite for providing effective, even passionate, representation for them in the criminal courts.” All people, he reminds readers, deserve good representation. It is not for their counsel to judge them: that is solely the role of the courts.

There are a number of errors in the book that ought to be corrected in the event of a reprint. It is not true that judges’ tenure is dependent on their choosing to retire. A statutory maximum age for judges exists in every jurisdiction (and was recently increased in New South Wales). Some of the more problematic political manoeuvrings and practices Boe refers to (such as the appointment of magistrates with no legal qualifications in Queensland) were unique to particular periods. The bird depicted in the SA police coat of arms is not the wedge-tailed eagle but the white-backed magpie, or piping shrike, and South Australia should be added to his list of those jurisdictions that have a fused legal profession. The rules concerning a jury’s majority verdict (if such verdicts are permitted) vary from jurisdiction to jurisdiction. Finally, the rule that makes a distinction between printed and oral evidence should be referred to as the parol evidence rule.

But it would be churlish to make too much of small faults in what is, in totality, an excellent volume. The cases that Andrew Boe has handled can make for uncomfortable reading but they offer important lessons. People sometimes do appalling things, and the impact not only on communities but on their lawyers can be palpable. In one instance, Boe writes, “Nearly everyone connected with this case must have stumbled back to their lives diminished by what they had read, heard and seen.” It was a heartfelt recollection.

The Truth Hurts promises to call out unfairness and bias in the practice of the criminal law, but for me the book simply reinforces the fact that legal processes are faced with difficult tasks and often contradictory aims, and continually struggle to find resolutions satisfactory to all. Only those who have the passion to find enduring outcomes will succeed.

And, on this reading, when it comes to passion in finding the best outcomes for people who fall afoul of the law, there would be few more passionate than Andrew Boe. I enjoyed his reflections immensely. •

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She walked into the room and he gave her a big hug, telling her how well she looked. After some discussion about how she had been coping he asked her to come and sit on his knee. She was very shocked. After a period of silence, he repeated the request in a “very authoritarian, quite demanding” tone. Ultimately she complied and sat on his knee. He put his hand on her leg, rubbing it up and down the inside of her leg and touching her crotch. She “just froze.” She was afraid of him and of what he might do to her. She told him that she “did not want to do this.” He did not respond. The incident lasted for “probably five minutes.” After this she got up and walked towards the door. He told her that he would need to see her again.

Dyson Heydon will likely recall this scene from his time on the High Court of Australia, and so might some of his associates. The sixty-three-year-old woman’s account of her first one-on-one consultation for post-natal depression thirty-three years earlier opened her psychiatrist’s 2009 trial in Perth. The following year, the national court granted Alan Stubley a last chance appeal against his conviction for multiple sexual offences against two of his patients. When he sat on the retired doctor’s case, Heydon was nearing the end of his decade on Australia’s top court.

Shortly after he was appointed to the High Court in 2003, according to the Sydney Morning Herald this week, Heydon “slid his hand” between the thighs of a “current judge” at a law dinner. She told him to “get your fucking hands off me.” Not long after he left the court in 2013, he attended a professional dinner where — according to the then president of the ACT law society — “his hands became very busy under the table, on my lap, feeling up the side of my leg.” He later asked her to discuss law in an empty room, where he hugged her and tried to kiss her. When she told him she was “definitely not interested,” he said “it would be such a wonderful encounter.”

These and other claims about a former High Court judge raise many questions. One is about his role in cases like Stubley’s. If the allegations against Heydon are true, then a serial predator of young women was asked to rule on an appeal by an alleged, if more extreme, serial predator of young women. We cannot know what thoughts crossed his mind as he read the testimony of Stubley’s patients. But we can read how he judged the psychiatrist. The answer is: harshly. Indeed, prosecutorially.

“To many people,” Heydon wrote in his judgement, the claim that a psychiatrist was preying on his patients “would seem so serious and inherently unlikely as to be startling, outlandish, and far-fetched to the point of being bizarre.” But “perhaps not all,” he allowed, citing those “afflicted with the cynicism characteristic of hard-bitten and experienced criminal lawyers.” Six years after he wrote those words, that same affliction became a global pandemic of sorts, fuelled by revelations of serial abuse by Harvey Weinstein, Bill Cosby and other celebrities, and thousands of other #metoo stories.

Heydon himself is now the subject of several such stories. The Sydney Morning Herald quotes a “leading female member of the NSW Bar” whose first thought when #metoo broke was, “Boy, Dyson Heydon should be really worried.” She goes on to describe Heydon inviting her to his chambers after she appeared before him at the High Court and, on a later occasion, kissing her while blocking her from leaving his room.

But in the less cynical times of Stubley’s appeal, Heydon was somewhat ahead of the public on whether to believe an allegation of professional predation. He bemoaned that such an allegation’s seeming bizarreness meant that a prosecution based on it alone “may easily falter, no matter how truthful,” even when — as Stubley’s patient testified — the allegation was of years of persistent indecent assaults and rapes perpetrated in a psychiatrist’s office, her sobbing throughout. That’s why, he said, such claims of predation shouldn’t be heard on their own.

Quoting Western Australia’s evidence law statute, he declared that “fair-minded people would think that that the public interest” would favour hearing “similar testimony about the tendency of the accused.” For example, he explained, Stubley’s trial featured charges arising from how he treated two of his patients, who each testified to repeated sex with the psychiatrist as part of their “treatment.” The second patient told the jury that Stubley had rubbed her breasts when she spoke with him about her stress at the breakdown of her marriage, and at a later consultation told her “I feel rejected” in a “very, very menacing tone.” “This is the most important relationship you will ever have,” he told her after they had sex on the floor of his office. A joint trial featuring both complainants, Heydon observed, “would be a prosecution supported by evidence of much greater probative value.”

The question the High Court had to decide in 2011 was whether the criminal justice system should go further to bolster prosecutions of alleged predators. Heydon, one of the world’s leading evidence scholars, ruled that it should. He endorsed Justice Narelle Johnson’s decision to allow several other patients of Stubley to testify at his trial in order to establish a pattern of predation. Each described sex on the floor of his office during emotional tumult: one had reached out to Stubley for an emotional but not sexual connection, another felt “embarrassed on his behalf” as he undressed in front of her, a third had unwanted sex out of fear that she would lose her job as his receptionist. Heydon ruled that “a prosecution supported by the evidence of three other women giving similar testimony about the tendency of the accused to engage in acts of sexual intimacy with patients during consultations” would be “of so high a degree of probative value” that “the public interest would have priority over the risk of an unfair trial.”

It is startling that Heydon used his judicial pulpit a decade ago to write something of a road map to his current predicament. Like Stubley, Weinstein and Cosby in some respects, he now faces allegations of predation that are greatly strengthened by many similar allegations. What initially started as two former associates contacting the chief justice of Australia in March last year became public this week after an inquiry she commissioned concluded that “six former Court staff members who were Judges’ Associates were harassed by the former Justice.”

Given this week’s revelations, Heydon’s ruling on Stubley’s appeal is a bit like Weinstein greenlighting a movie about a predatory producer or Cosby doing a very special episode on methaqualones. One possible explanation may, of course, be that Heydon is innocent of the allegations made against him. But there are other possibilities: he may have been somehow oblivious to his own conduct or supremely confident in his invulnerability, or maybe just intellectually devoted to his stance on evidence law. Each of these explanations, in different ways, suggests that Heydon may be his own worst enemy.

Regardless, he was alone on the High Court in 2011. The other four judges who heard Stubley’s case — Bill Gummow (who wrote a classic legal text that Heydon would later contribute to), Susan Crennan, Susan Kiefel and Virginia Bell — all allowed the psychiatrist’s appeal.

Rejecting a different rape appeal five years earlier, Dyson Heydon penned a brief judgement agreeing with the majority, but adding his rejection of the accused’s criticisms of his then trial counsel. “She was dealt very bad cards,” he wrote. “She played them very well. Her methods were the reverse of incompetent.”

Mark Trowell, Alan Stubley’s barrister, was also dealt very bad cards. He told his client’s jurors: “No matter how big a rat he was in having sex with his patients, you can’t just convict him because he was unethical and immoral.” Stubley later testified that sex was considered to be part of psychotherapy in the 1970s. Indeed, his second patient announced that she had researched the field before seeing him and told him that she wasn’t seeking “bed therapy.” Stubley seemingly ignored her request.

Trowell also proved to be the reverse of incompetent. His strategy, while failing at the trial, succeeded in the High Court. Had Stubley denied having sex with his patients — Gummow, Crennan, Kiefel and Bell held — then his jury could have heard the stories of other patients who said they had sex with him. But his admission that he had sex with all of them — consensually, he said — meant that their stories added nothing to the prosecution case. “Proof of the appellant’s tendency to engage in grave professional misconduct by manipulating his younger, vulnerable, female patients into having sexual contact with him,” the four judges wrote, “could not rationally affect the likelihood that JG or CL” — the two patients — “did not consent to sexual contact on any occasion charged in the indictment.”

These judges’ words, in sharp contrast to Heydon’s own, could be music to the ears of any barrister asked to defend the former judge if he is prosecuted for crimes against some of the people whose accounts have emerged this week. If Heydon admits doing the particular acts he is accused of — say, touching a woman’s thighs or hugging or kissing her — but says that the woman consented to those acts, then the majority’s ruling on Stubley’s appeal would bar the prosecution from using others’ accounts of his misconduct, no matter how similar or non-consensual or well-established, to convict him. In short, the majority’s judgement takes the “too” out of #metoo.

I am long on the record as saying that the High Court’s approach to such cases is seriously wrong. Six years previously, the national court had unanimously allowed the appeal of a different alleged predator, a teenager convicted of the rapes or attempted rapes of six different teenagers, by ruling that he should have been tried separately for each. Why? Because he had testified that each of the six consented to sex with him, only to later accuse him of rape. (Remarkably, the sixth instance occurred while he was on bail on charges of raping the other five.) The national court ruled that, as a result, their testimony could not establish any pattern about the accused, but only cast light on their own, separate, decisions not to consent to sex with him.

After that case, I — and others — put much the same legal argument that Heydon put six years later: that six claims of predatory behaviour are much more powerful than one, given the particular unlikelihood of one person facing a series of false claims of rape after consensual sex. Indeed, as Queensland’s director of public prosecutions had argued before the national court, the six complainants’ accounts of the teenager’s actions showed a distinct, escalating pattern of deception before and violence during the alleged rapes, culminating in threatening the last two teenagers with a baseball bat and a chain.

Tragically, two months after the High Court’s judgement was published, the teenager committed two rapes that the judge who sentenced him regarded as “very similar” to the last of the earlier allegations. To no one’s surprise — other than the High Court’s, I suppose — he pleaded guilty to those two rapes, and was convicted of the earlier attempted rape committed while on bail on charges of the five earlier ones.

Heydon was one of the five judges in that earlier case. Because the court issued just one joint judgement from all five judges, and because it hides who actually writes such judgements, we don’t know whether it was authored by Heydon himself, or by one of Murray Gleeson, Bill Gummow, Ken Hayne or Michael Kirby. Regardless, they all signed on to the following remarkable explanation of why the common features of the six complainants’ accounts leant nothing to the prosecution’s case because they were “entirely unremarkable”:

That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant’s desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or other drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with this conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon.

But Heydon, seemingly alone, had second thoughts. During Stubley’s appeal hearing, he commented that the earlier judgement “is one of the most criticised decisions of the High Court of all time” and “is not a sort of granite mountain that is sharp and immovable.”

Around the time of Stubley’s appeal, Heydon also changed how he wrote judgements. He started dissenting as often as not and, more dramatically, stopped writing with his fellow judges altogether. In a 2013 interview, he explained that he had belatedly recognised that his colleagues on the bench wrote poorly and that the High Court’s difficult case load merited his individual attention. The previous year, he had given a much-discussed lecture at Oxford criticising the push for joint judgements in senior courts, labelling the pressure towards judicial collegiality — something Chief Justice Susan Kiefel later made her hallmark — “the enemy within.” His post-retirement return to Oxford as a visiting fellow was cut short, the Sydney Morning Herald reports, amid more allegations of predatory conduct, this time with law students.

Alan Stubley’s receptionist, the youngest of his patients to testify at his trial, described how, on her twenty-first birthday, the man she called Dr Stubley — who by then was also her psychiatrist, treating her for anxiety and depression — suddenly approached her and kissed her on the lips, telling her she could now do whatever she wanted. The High Court majority’s summary of her testimony continues:

In a consultation which took place after her twenty-first birthday, Stubley hugged her and undressed her, saying that he knew that she would be beautiful. He had sexual intercourse with her on the floor of the consulting room. She had not wanted to have sexual intercourse with him. During intercourse she had a “frozen grin” on her face. After intercourse he washed himself in the basin. She did not resist because she did not want to jeopardise her employment. She also believed that his conduct was part of his treatment of her as a patient. About a week after this episode she confronted him and told him that there was not to be any further sexual contact between them. Stubley agreed. No further sexual contact took place between the two.

Such terse summaries of the evidence are typical of the High Court and often contrast starkly with the details provided in the judgements of other courts that rule on the same cases. For example, the Western Australian Court of Appeal set out what the now fifty-three-year-old told the jury was behind her then “frozen grin”:

I had a boyfriend, a new relationship, and I had told him about it because it was a patient of his and also I just thought this couldn’t be happening because I didn’t know how to tell him that I felt revolting and he was my boss and I didn’t think I would get another job and he was like a guru or a figure I was greatly intimidated by and basically all of these things were swirling through my mind, just “How do I get out of this? How do I get out of this?”

The High Court’s reasons omit not only such human details, but also the broader narrative. A judgement from Western Australia’s Supreme Court reveals that, when she commenced working as Stubley’s receptionist, aged nineteen, she watched female patients emerge from his office on multiple occasions “looking untidy with crumpled clothes and their hair messed up.” She testified that, when she quit her job six months after confronting her psychiatrist, “she had been dramatically affected by the sexual intercourse to the point she requested admittance to the mental health ward at Sir Charles Gairdner Hospital.”

But few people read court judgements. After Stubley’s trial — where, Stubley’s partner told the media, “the gallery was full of patients supporting him” — Justice Narelle Johnson said that she was “staggered” that Stubley’s supporters had written to her saying that there had been “a scandalous miscarriage of justice,” observing that the letters’ authors had seemingly “not heard the evidence.” The partner of one of the two complainants later said that she was left “distraught” by the High Court’s ruling. Lacking legal training, these lay observers would have had difficulty reading the national court’s terse analysis of evidence law. But that would have posed no barrier to a different group, known as judge’s associates, who have a particular interest in the High Court’s handing of professional predators.

Following its initial finding that Dyson Heydon had sexually harassed six judges’ associates, the High Court is now reportedly contacting over one hundred other people who held such roles during Heydon’s tenure on the national court. Visitors to the court’s public hearings can see those associates seated behind each judge, sometimes rising in unison to supply law reports whenever a barrister mentions a precedent. Behind the scenes, they engage in variety of roles including legal research and proofreading the judges’ reasons. The positions — typically two per judge, and lasting for a year or two — are highly prized by future lawyers for the insight they offer into courtroom life and, in many cases, the close interaction with particular judges, which can lead to mentorship or friendship down the track. A new graduate’s selection by a high-profile judge signals a prediction — often self-fulfilling — of a stellar legal career.

We are likely to hear far more about life as an associate in coming days, weeks and months. Chief Justice Susan Kiefel’s statement setting out the current justices’ shame “that this could have happened at the High Court of Australia,” also reveals a number of new workplace safety measures, including clarifying that associates’ obligations of confidentiality “relate only to the work of the court.” Every day of this past week has yielded fresh behind-the-scene revelations, such as the claims that Heydon tried to kiss one of his associates in 2005 and that that information speedily moved through the court to its then chief, Murray Gleeson.

The then associates of Ken Hayne and Virginia Bell would have spent part of the second quarter of 2010 researching Stubley’s trial and initial appeal as a prelude to the two judges granting the ex-psychiatrist “special leave” to appeal his conviction at a brief hearing in the middle of that year. Many of that year’s associates would have travelled with the court’s seven justices to Perth that October to hear a set of Western Australian cases including Stubley’s appeal. Five associates would have been present when — after a two-hour hearing — Bill Gummow announced on the spot that “[a]t least a majority of the Court” had allowed the appeal. And some of those would have spent part of the next six months researching and proofreading the majority’s joint reasons for making that order, as well as Heydon’s lone reasons for dissenting.

They would have read the majority’s declaration that the then law in 1970s Western Australia “recognised that consent to intercourse may be hesitant, reluctant, grudging or tearful but that if the complainant consciously permitted it… the act was not rape.” That none of the three additional patients, including the receptionist, “gave evidence that the appellant had engaged in threatening or intimidating conduct inducing her consent to sexual activity.” That the prosecution’s submission to the contrary “conflates proof of psychological dominance with proof of absence of consent.”

They would have read the majority’s observation about the second patient — who testified that Stubley had once told her that “you seem to be very angry. Sometimes when people are very angry, they need to be put in hospital for a couple of weeks,” and who complained about his conduct to a medical board in 1981, the same year she ceased treatment with him — that “the prosecution did not seek to lead evidence of [her] reasons for not making a prompt complaint.” They would have read the four judges’ conclusion that “the differing accounts of the sexual abuse experienced by” the other three patients “were not capable of bearing rationally on the assessment of” the two rape complainants’ reasons “for continuing to undergo treatment and for not complaining.”

They would have read the joint words of Bill Gummow, Susan Crennan, Susan Kiefel and Virginia Bell that “manipulating a person into sexual intercourse by exploiting that person’s known psychological vulnerability would not, without more, vitiate their consent” and that “the cynical exploitation of [Stubley’s] position of power was not inconsistent with him holding an honest belief that the victims of his attentions were consenting to the conduct.” And they would have read the justices’ conclusion that “absent any feature of the evidence tending to demonstrate [Stubley’s] awareness that his manipulation of his patients had not succeeded in procuring their assent to his predatory advances, proof of the imbalance of power did not rationally bear on the issues raised by” the defence of honest belief.

And, at the same time, Heydon’s then associates would have been proofreading his excoriation of the majority’s reasoning.

In 2007, the High Court dismissed an appeal by a teenager who had been tricked by the two police officers into making what they promised was an off-the-record confession to a home invasion. Murray Gleeson and Dyson Heydon observed that “every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute.” Gleeson, who was chief justice for the first five years of Heydon’s tenure, was allegedly told via another judge and his associate, of Heydon’s harassment of his own associate in 2005. He has largely refused to comment on the High Court’s inquiry into sexual harassment, aside from a cryptic text telling a journalist that “the accounts relayed to you are false.”

Heydon, who declined to be interviewed during the High Court’s inquiry, has stated, via his lawyers, that “any allegation of predatory behaviour or breaches of the law is categorically denied by our client.” He added that, in the case of the associates’ complaints, “if any conduct of his has caused offence, that result was inadvertent and unintended, and he apologises for any offence caused.” As for the other allegations now being detailed in the media, “our client denies emphatically any allegation of sexual harassment or any offence.” The latter is presumably a reference to a crime, rather than an emotion.

What are we to make of such a generalised denial? Ask Heydon. He spent much of his 2011 dissent dissecting Alan Stubley’s combined ethical mea culpa and criminal denial, as delivered by Mark Trowell to the jurors:

Dr Stubley will admit that he was sexually intimate with four of these women… but he says that his sexual intimacy on each occasion was consensual; that is, with the consent of each one of those females, that there was no force or coercion or intimidation or manipulation of any one of those females, and maybe he accepts that he may be morally and ethically wrong for what he did; he’s not guilty of the criminal allegations that have been brought against him and will explain the circumstances in which the sexual intimacy took place.

“A common forensic tactic,” Heydon wrote, “seeks to prevent damning evidence being called, or to water down the evidence which is called, by narrowing the issues in the case.”

Rejecting the majority’s view that Trowell has admitted the various “acts of intimacy” Stubley had been accused of, Heydon pointed out how Trowell “declined to pin his concessions about acts of sexual intimacy to the periods or occasions identified by the complainants.” Indeed, Stubley went on to cast doubt on a number of the specific acts the complainants described, saying that allegations such as sex with a heavily pregnant woman “was not the sort of thing I tend to do” and “not specifically” recalling many specific sexual acts he was charged with. The broad problem, wrote Heydon, is that “it is very difficult to fillet out the details of the relevant events which go only to sexual intercourse from those which are relevant to consent as well.”

There is similarly no way to tell whether Heydon, through his lawyers, is denying that the acts alleged against him happened at all, or is suggesting that they were consensual. In Stubley’s trial, Trowell blamed the passage of time for his client’s refusal to be pinned to specifics:

Can I say this: after thirty to thirty-five years he’s not able to tick a box like a questionnaire to relate to each particular act. I mean, who could? Who could after thirty to thirty-five years? Who could accurately describe in detail things that happened so long ago? Apparently, the complainants can. Let’s see about that.

Heydon thought that “unfortunately phrased”: “perhaps the reason the ‘females’ could accurately describe what happened long ago, while the accused could not, was that the events complained of were unique in their experience, but merely quotidian and banal in his.”

If Trowell winced at that back then, so might Heydon’s lawyers today. But in 2011, Heydon was unsympathetic to the plight of an alleged predator:

It may be thought harsh in the case of offences which allegedly took place as long ago as the offences charged in this case that the desire of an accused to make an admission should be thwarted because he is unable to be specific in consequence of the lapse of time. In some ways it is harsh; in other ways not. The lapse of time brought advantages and disadvantages to the accused. One of the advantages was that it would be easier for the jury to have a reasonable doubt about the evidence of the complainants. One of the disadvantages was that it made it harder for him to make an admission…

He quoted the greatest of modern evidence scholars, Henry Wigmore, who complained that “a colourless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence; furthermore, a judicial admission may be cleverly made with grudging limitations or evasions or insinuations (especially in criminal cases).” Better, Heydon said, “to let the jury hear the whole unbowdlerised story.”

The High Court’s judgement in Stubley’s case revealed two possible futures to any women at the time contemplating going public with their stories of alleged professional predation. In one future, each woman’s account would be read only for its deviation from their alleged assailant’s mea culpa, and potentially on its own. In the other, decision-makers would see the “whole unbowdlerised story” of the alleged perpetrator’s pattern of behaviour. Those thinking of exposing Heydon’s own alleged harassment and crimes would have found more encouragement in his dissenting words than those of the four justices in the majority, including the current chief justice. The lesson of #metoo is how we can find our enemies in surprising places. Likewise our allies.

Assuming we find them at all. After allowing Stubley’s appeal, the High Court nevertheless ordered his retrial, observing that the psychiatrist faced allegations of “serious offences” and the two complainants’ evidence “was in each case capable of establishing the prosecution case.” Justice Johnson had previously sentenced him to ten years in prison, telling him: “It is unfortunate that no one paid attention to the complaints of these women. You would not have been able to continue your work until retirement.” He had served two years of that sentence when the majority’s judgement freed him.

Two months after their words were published, the eighty-three-year-old suffered a blood clot and underwent surgery. The onset of mild dementia prompted a consultant psychiatrist to find that Stubley would be unable to follow his retrial or the prosecution case, or to defend himself. Western Australia’s Supreme Court ruled that the former psychiatrist was unfit to stand trial and ordered his release into a nursing home, finding that he posed no further danger to the community. As far as I can tell, Alan Stubley died last year, aged ninety. It was not a good end for the retired psychiatrist, but likely better than the one chosen by Dyson Heydon. •

The post The enemy within appeared first on Inside Story.

Patrick Mullins is the recent winner of the NSW Premier’s Douglas Stewart prize for his previous book, Tiberius with a Telephone: The Life and Stories of William McMahon (Scribe, 2018). His new book takes us on a fascinating journey through the final years of Australia’s literary censorship system, deftly telling the story of the many obscenity trials prompted by sales of Roth’s controversial novel in this country.

Australia’s censorship regime was a complex one, involving federal and state mechanisms designed to prevent offending books from being published, sold and circulated. Dating back to the late nineteenth century when the novels of Émile Zola, Honoré de Balzac and Guy Maupassant were considered too racy and radical for the Australian reading public, the multilayered system grew especially fierce through the interwar period. As Nicole Moore shows in her 2012 book, The Censor’s Library, the system brought together the customs system, postal regulation and various other legal mechanisms. The federal government had also added a Literature Censorship Board, on which a mix of scholars and bureaucrats determined the fate of books.

Many books had been banned from importation from the 1930s to the 1960s. They included Radcliffe Hall’s The Well of Loneliness (1928), D.H. Lawrence’s Lady Chatterley’s Lover (1929), Aldous Huxley’s Brave New World (1932), George Orwell’s Down and Out in Paris and London (1933), Kathleen Winsor’s Forever Amber (1945), J.D. Salinger’s The Catcher in the Rye (1953), Grace Metalious’s Peyton Place (1959), and James Baldwin’s Another Country (1962). Locally, Norman Lindsay’s Redheap (1930) was among the books placed on the prohibited list.

Sex was the main objection — especially anything suggestive of “deviant” sexuality, which at the time was considered to include homosexuality, masturbation, obscene language, pornographic scenes and sex without consequences. But radical politics was also suspect, as was contempt for religion. Proponents of censorship believed that people needed protection from the corrupting and depraving effects of such material. Scholars have shown how the system created a culture that was conservative, timid and quarantined from intellectual and cultural influences flourishing abroad. As Dymphna Cusack concluded when her own book (written with Florence James) Come In Spinner (1951) could only be published with severe cuts, Australians were basically wowsers.

By the time Portnoy’s Complaint came along, resistance to censorship was growing. Occasional challenges had been launched and voices raised in opposition since the 1930s. By the 1950s, many books had been removed from the banned list on the basis of their literary merit. But the 1960s was the decade that really saw a concerted effort to overturn the system. The student and radical alternative press — which included magazines such as Oz — aimed to provoke reaction by testing its boundaries. Plays like Alex Buzo’s Norm and Ahmed (1968) began making use of offensive language. But the real test came with the Australian publication of a controversial novel by an American writer.

Portnoy’s Complaint is written from the point of view of Alexander Portnoy, a sexually frustrated young man narrating his erotic experiences to his psychoanalyst. There are a great many descriptive scenes of masturbation in the novel; a memorable one (often cited by the prosecutors in the trials) involved Portnoy masturbating into a piece of liver that his mother then serves for dinner. Roth also made use of a litany of obscene words to punctuate his text, including such profanities as “fuck,” “cunt” and “prick.” The book was a sensation, and the US critics praised its originality and creativity of language.

But was Australia ready for such a book? The Literature Censorship Board, divided as to whether Portnoy could be allowed into Australia on the basis of literary merit, decided to ban it. Outraged, many Australians, including publishers and the literary community, resolved to have the decision overturned.

The censorship regime was already wobbling. Politicians were divided over its effectiveness, especially given emerging differences between federal and various state views. The appointment of a relatively young MP, Don Chipp, as customs minister seemed to offer the possibility of a more liberal approach. But although Chipp was sympathetic to critics of censorship, many in the community still supported the system. Portnoy was going to remain banned.

And so began Penguin’s campaign. With great speed and secrecy, Portnoy was printed and distributed across the nation. Once it went on sale (usually from behind the counter rather than openly displayed), it sold out almost immediately. Enforcing the ban was in the hands of state governments, though, and this is where things started to go wrong for the censors. South Australia, under Labor premier Don Dunstan, declined to prosecute as long as the book wasn’t on view, a decision that revealed a lack of unity among the states from the start. But other states raided bookshops and proceeded to take booksellers to trial.

A significant part of Mullins’s book is devoted to describing the trials, and they make for entertaining reading. Prosecutors did what they could to demonstrate the offensive nature of Portnoy: in the Victorian trial, for example, they contended that sexual references and four-letter words appeared, respectively, on 28.1 per cent and 17.5 per cent of the book’s pages. In the NSW trial, prosecutors tried desperately to prove that the book was being sold to schoolgirls, yet they couldn’t produce proof it had actually happened.

Witnesses for the defence made up a who’s who of Australian literary and academic circles: Patrick White, Stephen Murray-Smith, Nancy Keesing, T.A.G. Hungerford, Alec Chisholm and Dorothy Hewett were just some of them. All testified to the literary merit of Portnoy. Patrick White commented on the stand that he had no problem with “fuck,” “cunt” or “prick” as he used such words himself, daily. After his cross-examination at the second NSW trial, he wrote to publisher and writer Geoffrey Dutton: “the prosecutor [P.J. ‘Jack’ Kenny, QC] I can only describe as a cunt.”

The trials would ultimately have mixed results. In Western Australia, the book was found to be obscene but also to have literary merit, and so it could be sold. In Victoria, the verdict went against Penguin, but an appeal was lodged. In New South Wales, the courtroom drama dragged on: two trials were held, but no verdict was reached. Shortly after NSW authorities decided on 28 May 1972 not to go to a third trial, Chipp took Portnoy off the banned list. In December, Gough Whitlam and Labor won office and the old censorship regime was swept away in favour of a classification system. Literary works would not be in the firing line again, at least not because of sex and four-letter words.

Mullins’s compelling account of these last days of the old censorship regime skilfully draws on a rich range of sources, including interviews with many of the key figures involved. He gives an insight not just into how the system operated and the politics involved, but also into a significant cultural moment in Australia.

Australian publishers were beginning to flourish in this period. While the case centred on an American novel, Penguin was establishing itself in Australia as a publisher of both imported and homegrown literature. A more diverse Australian cultural and literary scene would result from the work of such publishers as well as the lifting of stultifying censorship.

The Trials of Portnoy is a very welcome contribution to the small but significant literature about the history of censorship in Australia. While Mullins chooses, perhaps wisely, not to weigh in with any reflections on current, all too complex, questions raised by “cancel culture,” no-platforming and other limits on freedom of speech, this book provides some much-needed context for thinking about the issues raised by controversial and offensive material.

While we will likely never see this kind of literary censorship again in Australia, we should not assume that our creative and intellectual freedoms will always be protected. Nuanced discussions about the meanings of such freedoms are vital — as is thinking about how best to balance them against the damaging impact of discriminatory language, hate speech and other expression that might offend some members of the community. •

The post Literary censorship’s last gasp appeared first on Inside Story.

It was 1986 and I was working in Canberra as foreign affairs and defence correspondent for the Age. Turnbull, who had dabbled briefly in journalism before realising there was a bigger future and a lot more money in media law, was a cocky young lawyer about to secure an outsized international profile. The publicity would launch him towards his lifelong ambition of becoming prime minister.

On the morning in early November I picked up my home phone to find Turnbull on the line. I had landed a minor scoop that had appeared on the front page of the Age. On the basis of a cabinet leak, I reported that the Hawke government had resolved to join a case in the NSW Supreme Court in support of the British government’s bid to block publication of Spycatcher.

Former MI5 agent Peter Wright, then living in retirement in Tasmania, had spent much of his twenty-five-year career with the British spy agency hunting Russian moles — a busy enterprise during the era in which top agents Kim Philby, Guy Burgess and Donald Maclean were revealed as traitors. Wright had investigated Roger Hollis, head of MI5 from 1956 to 1965, and his book set out his case that Hollis was another double agent and should not have been cleared. The Thatcher government had obtained a preliminary injunction to stop the book’s publication in Britain and now wanted to stop its release in Australia.

The revelation that Hawke’s Labor government was getting into bed with Britain’s Tories to silence a whistleblower was significant news, although ultimately its support would have little impact on the outcome of the case.

The morning phone conversation began cordially enough, with Turnbull complimenting me on a “great story” before requesting that I tell him who my source was. When I gently pointed out that, as a former journalist, he should understand that revealing sources was the equivalent of breaching the seal of the confessional, the caller exploded, describing me in terms that might make even sophisticated Inside Story readers blush. Before slamming down the phone, he declared, “Don’t ever expect anything from me.”

It had never occurred to me that I might expect anything from Malcolm Turnbull, and in the years since he left with a dial tone I was relieved never to find myself in a situation of needing anything from him — beyond, perhaps, the republic he was supposed to deliver and some serious action by his faction-riven government on global warming.

A few days after the morning call, I was seated in courtroom 8B of the Supreme Court in Sydney for the commencement of the Spycatcher hearing. While I’ve forgotten most of what happened over subsequent days, two indelible memories remain.

The first was the brash and theatrical style with which the thirty-two-year-old Turnbull conducted himself, and how much his antics were indulged by Justice Philip Powell, who seemed almost in awe of the young Rumpole. The other was the starkly contrasting presence of the urbane Sir Robert Armstrong, cabinet secretary and head of the British civil service, who had been sent by Thatcher as her government’s principal witness.

In an immortal moment, Turnbull was questioning Armstrong about Andrew Boyle’s 1979 book The Climate of Treason, which effectively outed Anthony Blunt as the fourth member of the Cambridge ring of Russian spies. Turnbull was seeking to demonstrate that the British authorities had turned a blind eye to the disclosure of official secrets in Boyle’s book and shouldn’t be treating Spycatcher differently.

Turnbull had established that the British government was well aware of the Boyle book before its publication and had, indeed, obtained a copy, yet Armstrong had written to the publisher asking whether Thatcher could be provided a copy to enable her to be fully informed should she need to make a public statement. Turnbull pressed Armstrong as to whether the letter was calculated to mislead. Armstrong conceded the point but insisted that creating a misleading impression did not amount to lying.

Turnbull: What is the difference between a misleading impression and a lie?

Armstrong: A lie is a straight untruth.

Turnbull: What is a misleading impression — a sort of bent untruth?

Armstrong: As one person said, it is perhaps being economical with the truth.

The delicious phrase might have danced straight out of a script for Yes Minister, the classic TV series at the height of its popularity at the time. And while it may have originated with Edmund Burke’s expression of “an economy of truth,” it was propelled into the lexicon of global political commentary by Sir Robert Armstrong in an austere Sydney courtroom in November 1986.

These memories have been stirred with the arrival of Malcolm Turnbull’s memoir A Bigger Picture. And big it certainly is — a 700-page, densely typeset tome landing, fortuitously for its author, in the time of national home detention when surely no one has anything better to do than relive the career of our most recently superannuated statesman. (And should any reader bridle at the size of the task, be thankful the author only lodged at The Lodge for just under three years.)

Turnbull had already gained prominence working in the early 1980s as general counsel for media mogul Kerry Packer and successfully running his defence against scurrilous allegations raised in the Costigan royal commission into union corruption and tax evasion. But the Spycatcher trial would take his brand to another level.

As Turnbull writes, he was approached to run the case by a London solicitor representing the book’s publisher, Heinemann. The pitch was hardly enticing for an ambitious lawyer who had only started in private practice a few months earlier. He was advised that Heinemann was depressed about the British injunction, was ready to throw in the towel and would only proceed if it could be done cheaply.

In the end, Turnbull agreed to do it for a flat fee of $20,000. It would turn out to be the best low-budget commission of his fabulously well-remunerated career as a commercial lawyer and, later, merchant banker.

Thanks largely to the admissions he extracted from the hapless Sir Robert, Turnbull won the case. Justice Powell ruled that having failed to take action to prevent the publication of Their Trade Is Treachery and other books with similar content to Spycatcher’s, the British government had “surrendered any claim to the confidentiality of that information.” When the case went to the NSW Court of Appeal later in 1987, Turnbull won again.

Obstinate to the end, the British then took the case to the High Court, where in early 1988 their repudiation was complete — the judges voted seven–nil in favour of Spycatcher. The road to greater fame and fortune now unfolding before him, Malcolm Turnbull found no need to be economical with the truth.

“I’d taken on the UK government and its army of top lawyers, fought the case through a trial and two appeals and won,” he writes. “What appalled many of my former colleagues at the Bar was that not only was I absurdly young, at thirty-two, but that I hadn’t appeared as a barrister, but unrobed as a solicitor. Surreally, the case was much bigger news in London than in Australia. I was being encouraged to capitalise on my international notoriety — move to the Bar in London or New York; head spinning really.” •

The post “Don’t ever expect anything from me” appeared first on Inside Story.

How the national court would finish the case was another matter. It could have ended with a whimper, with Pell’s name appearing in an online list of special leave applications with the word “dismissed” next to it. Or it could have ended with a bang, with Australia’s top judges deciding the case for themselves. At 10am last Tuesday, the latter happened, when seven justices swept away earlier decisions by twelve jurors and three judges.

When news of Pell’s guilty verdict broke fourteen months ago, many observers studiously ignored the High Court’s looming role. His critics relished calling Australia’s top Catholic a “convicted paedophile.” Victoria’s premier chastised a former prime minister for visiting him in prison. But Pell’s accuser always knew better: “Everything is overshadowed by the forthcoming appeal.”

Something of the reverse happened last Tuesday, when the High Court revealed what most who attended its Canberra hearing last month already knew: Australia’s cardinal would again be the nation’s biggest story. As Pell was driven from his locked-down prison into a locked-down city, his supporters declared he had been found “innocent.” “Let us #PrayTogether today,” tweeted the Pope for Lent, before garbling a prayer “for all those persons who suffer due to an unjust sentence because of someone had it in for them.” The premier refused to “comment” on the decision, telling “every” victim, “I believe you.”

But Pell’s guilt or innocence on the charges against him has never changed and never will. He did not become less guilty last Tuesday. Nor did he become less innocent on that other Tuesday in 2018. He has been either guilty or innocent of the rape of two children for the past twenty-three years and will remain so forever. No court ruling — or punditry, or politics — can alter what actually happened in St Patrick’s Cathedral during six short — or agonisingly long — minutes after a Sunday mass in mid December 1996.

The proceedings against Pell have always been about how the courts — and the rest of us — respond to the claim made against him. For the courts, the sole issue is whether Pell’s prosecutors were able to prove beyond reasonable doubt what happened in 1996. In 2018, the jury unanimously decided that the prosecution had proved what happened, which is why Pell spent most of 2019 in Barwon Prison. Last Tuesday, the High Court unanimously decided that it hadn’t, which is why Pell will spend most of 2020 in Sydney.

The High Court’s key ruling — that there is a “significant possibility” that Pell is innocent of the charges against him — isn’t a conclusion that he is innocent; it is a conclusion that the prosecution failed to prove that he isn’t. That finding, when made by a jury or a final court of appeal, ends the prosecution and restores to him the presumption of innocence in future court cases about those allegations, such as civil proceedings or — importantly for commentators — defamation actions. But that’s all that it does.

Outside the courts, the High Court’s ruling is only important to the question of Pell’s true guilt or innocence to the extent that it persuades people one way or the other. People aren’t bound by the presumption of innocence, or the rules of evidence, or respect for the courts, or even by fairness, unless they want to be. Those who are so inclined can believe that the jury’s take on proof reflected the truth, or that the High Court’s did, or they can believe all complaints of sexual abuse, or all ones about Pell, or none of them. Or they can look at the evidence for themselves and reason about it however they want. At least they could, if most of it was publicly available.

The criminal justice system’s finding that Pell was guilty of child sexual abuse lasted 482¾ days, a fact that prompts many questions. Why didn’t the jury’s verdict stand? What does his acquittal mean for his accuser? And what of the earlier decisions in this case? The High Court’s reasons leave the most important question about his case unanswered.

To understand why George Pell is now free, start with the day before his jury was sent out to deliberate. On that Wednesday seventeen months ago, Ruth Shann, one of Pell’s two barristers, asked permission to play a nineteen-minute animation during the defence’s closing address. Derisively known as the “pac-man video,” it showed the floorplan of St Patrick’s Cathedral and used coloured dots to represent various church officials’ movements after mass. Accompanying each dot, Shann explained, were excerpts of the testimony of the case’s twenty-three “opportunity witnesses” — every person who was known to be at the church that day and testified at the trial — to support the claimed location of each official as time passed.

Like virtually all of the public, I haven’t seen that video. Nor did any of Pell’s jurors see it. Or any of the High Court’s justices. That’s because, after the prosecution objected, the County Court’s chief judge, Peter Kidd, barred Shann from showing it. Pell raised Kidd’s ruling at his initial appeal, but all three judges rejected his complaint, including justice Mark Weinberg, Pell’s lone judicial backer until last Tuesday, who excoriated the video as “tendentious in the extreme.”

But we know what the video claimed about events in 1996 from Weinberg’s description. He complained that it showed a scenario that no one thought actually happened: Pell and his master of ceremonies on the cathedral’s main steps, while the two boys alleged to be Pell’s victims were in the sacristy at the opposite end of the building alongside “a large number of concelebrant priests.” Showing the jurors this “visual representation,” the Court of Appeal ruled, risked “misleading, or at least confusing” them.

Pell didn’t bring up the video again at the High Court, but what the dots represented was at the heart of his last-chance appeal and the national court’s decision to acquit him. Most of the court’s reasons are a painstaking appraisal of the testimony of those twenty-three opportunity witnesses. Remarkably, the seven justices said that Weinberg’s colleagues in the Court of Appeal, Victoria’s two most senior judges, were themselves misled or confused about part of those witnesses’ evidence. The pair’s factual error may have added an unnecessary eight months to Pell’s time in prison.

The claimed error by chief justice Anne Ferguson and Court of Appeal president Chris Maxwell was about timing, which was crucial to the case against Pell. When police put the allegations to the cardinal at a hotel near Rome’s airport in late 2016, he described the assertion that his crimes occurred in a sacristy after Sunday mass as “good for me.” “The most rudimentary interview of staff and those who were choirboys,” he told the police, would reveal that his accuser’s account was “fundamentally improbable” because “the sacristy after mass is generally a hive of activity.” At the trial, the prosecution called the opportunity witnesses out of ethical duty. They testified as Pell promised: after mass, a dozen or more officials — the sacristan, his assistant, the priests and the altar servers — filed in and out of the sacristy to store sacred items and remove their vestments.

To prove Pell’s guilt, the prosecution had to show beyond reasonable doubt that there was a long enough gap when none of those officials (except Pell) was present while the alleged crimes occurred. The complainant estimated that the choirboys’ time in the sacristy — finding and drinking the altar wine, being discovered by the archbishop, his raping and abusing them, and their dressing and leaving in tears — lasted five to six minutes. The two Victorian judges ruled that the opportunity witnesses’ accounts left just enough time for these events, because the sacristan, Max Potter, had a practice of delaying the removal of sacred items to allow parishioners some private prayer time, a hiatus that witnesses estimated lasted five to six minutes.

But the chief justice and president’s solution didn’t work, the High Court said. The problem is that the private prayer hiatus and the alleged crimes started at different times. The hiatus commenced when mass ended, while Pell and the choirboys were processing out of the opposite end of the cathedral. On the complainant’s account, the boys must have taken over three minutes to reach the sacristy, at which point the hiatus would have been mostly over.

On top of that stark factual mistake, the High Court ruled that Ferguson and Maxwell made legal errors in dealing with a set of further problems raised by the opportunity evidence, including Pell’s practice of spending up to thirty minutes on the church steps speaking with exiting parishioners, the longstanding protocol that the master of ceremonies stayed with the archbishop until he left the cathedral grounds, and evidence that a dozen or so concelebrant priests change their outfits in the sacristy during the hiatus.

The High Court held that the chief justice and president’s answer to this evidence — that, given the passage of time, the opportunity witnesses could have been thinking of later-arising practices or have forgotten ad hoc exceptions to them at one of the two masses where the crimes must have occurred — was not only unconvincing (as those masses were especially memorable ones) but also legally forbidden. The prosecution either didn’t ask the witnesses about those particular scenarios or didn’t challenge their denials if they did. Also, Victorian law forbids judges from relying on the delay between alleged crimes and the trial — something that jurors are told leaves defendants at a disadvantage — to improve the prosecution’s case.

The Victorian judges’ errors didn’t mean that Pell had to be freed. That depended on what the Court of Appeal ought to have decided if those errors hadn’t been made. Victoria’s director of public prosecutions, Kerri Judd, clearly sensing disaster last month, said that the appeal should be sent back to Victoria, because the seven justices had only read parts of the 1600-page trial transcript. But the High Court thought that was “specious.” The seven justices had read everything both sides asked them to read, they said, so they could decide the appeal themselves. And then they did.

The justices’ particular words — that there was “a significant possibility that an innocent person was convicted” — were the same ones coined thirty-six years ago by Justice William Deane to explain why he would have freed Lindy Chamberlain at her High Court appeal. But the Pell and Chamberlain proceedings differ in more than just their outcomes. Every aspect of the Chamberlain case, from the aftermath of Azaria’s disappearance to the statements of all witnesses, the course of the trial and even the jury’s deliberations, was contemporaneously reported by dozens of journalists and onlookers. Its later twists and turns — the narrow loss in the High Court, the fresh inquiries and the Chamberlains’ belated acquittal — were received by a public deeply familiar with the evidence for and against them.

By contrast, the alleged crimes in St Patrick’s preceded news of the investigation by decades, and almost no one has seen the complainant’s account of them, or ever will. Pell’s trials and their outcomes were kept secret from the public as they happened, meaning only a handful saw all of the opportunity witnesses testify. Journalists could only report on each party’s case after the public learnt which side won. None of those who watched noticed — or at least reported on — the timing error made by Ferguson and Maxwell. It is not clear whether any journalists have access to the trial transcripts Pell and his prosecutor asked the High Court to review.

And that leaves readers of this particular High Court judgement at a disadvantage. The justices’ reasons are clear and convincingly written, but those who would like to check for themselves — to see whether Victoria’s top two judges really misread some key evidence before them, and whether there really is a significant possibility that Pell is innocent — need to find a way to read the transcripts themselves, or to hope that some journalists do so and reliably fact-check. Otherwise, we must decide whether to take the High Court’s painstaking analysis of that evidence — and its findings about it — at face value.

Pell’s accuser says he does. “I respect the decision of the High Court. I accept the outcome.” These are his first — and quite possibly among his last — public words following the court’s ruling. He added that he “understood their view that there was not enough evidence to satisfy the court beyond all reasonable doubt that the offending occurred” and that “the High Court is saying that the prosecution did not make out the case.”

The accuser’s acceptance of the High Court’s judgement puts a lie to the notion that the national court found Pell innocent or his accuser a liar. The justices’ finding of a significant possibility of Pell’s innocence must mean they thought that there was a significant possibility that his accuser was either lying or wrong for some other reason. But it doesn’t mean that they found, or even thought, that he was actually wrong, much less a liar. Indeed, when Justice Deane made the exact same pronouncement about Lindy Chamberlain’s innocence, he expressly said that he still thought that she was the more likely culprit in Azaria’s death than the dingo she accused.

The High Court’s judgement on Pell is much shorter and narrower than its judgement in the Chamberlain case. The seven justices’ reasons for acquitting Pell have none of the anger or agony of the two dissenting judgements on Lindy Chamberlain. Instead, they chastised all three of Pell’s Victorian judges for opining on the honesty of Pell’s accuser, adding that the Court of Appeals’s split on that issue shows how “subjective” such assessments are. In the case’s sole major pronouncement of law, they held that questions about demeanour or candour or memory are exclusively for jurors to thrash out as a group. Appeal judges should proceed on the obvious assumption — that the jurors found every crucial prosecution witness to be credible and reliable — and then look to the transcripts for reasonable doubt.

But what do those transcripts mean for Pell’s accuser? The seven justices said that they contain no independent support for his account. They disagreed with Ferguson and Maxwell’s finding that his accurate description of the interior and use of the priest’s sacristy from that period corroborated his claims of abuse rather than just his presence in the sacristy at some point. To the contrary, they found that the transcripts leave no room for his account to be correct, because there was no time for what he described to occur when and where he said it did. Does that mean that his account must be wrong? And therefore that he was lying or deluded? It could.

But there are at least two other possibilities. One is that Pell’s accuser was seriously mistaken about when and where the claimed abuse occurred. People can and do get significant things wrong when they recount distant events, even when describing horrible moments in their lives. Plenty of prosecutors have gone to jurors on the basis that their key witness was honest and correct in describing the wrongs done to them even though they got many surrounding details totally incorrect. While that makes such trials challenging for everyone, many convictions have been achieved that way and upheld on appeal.

The other possibility is that the opportunity witnesses were seriously mistaken about the practices, protocols and rituals that applied in St Patrick’s Cathedral in 1996. Although the High Court observed that rigidity is a key part of religious life, that doesn’t exclude the possibility that the details can be described erroneously, or worse. Nor does it rule out overconfidence about the predictability of the practices or understatements about exceptions — such as ones that could have allowed for a much longer hiatus, or afforded much more privacy to a high-ranking abuser, after Sunday mass. Again, plenty of prosecutors have gone to jurors on the basis that seemingly honest defence witnesses were totally wrong for whatever reason, and achieved safe convictions as a result.

Crucially, neither of these scenarios was put to the witnesses at Pell’s trial. And that means they couldn’t be put to his jurors. And that in turn means that they couldn’t be considered by the High Court. So, the seven justices’ finding of a significant risk that Pell was innocent turned on the evidence and argument at his trial. It is possible that different evidence and argument at his trial would have produced a different finding on appeal. But they may also have yielded a different jury verdict.

There are obvious reasons why Pell’s prosecutors would hesitate to argue that either his accuser or two dozen witnesses got key details about the crime or the crime scene wrong. The witnesses may have convincingly rejected such claims. And, even if they hadn’t, there’s still a clear chance that Pell’s jurors would have baulked at finding him guilty of child abuse based on such arguments. Although they hit a wall at the High Court, the Crown’s strategic decisions in 2018 go some way to explaining why a very difficult prosecution went as far as it did. It’s understandable that Pell’s accuser thanked the police and prosecutors.

But should we? The former choirboy isn’t Pell’s only accuser. The High Court’s ruling has potential implications for his official ones: the police, the prosecutors, the jurors and the appeal judges. If the national court is right that Pell’s guilt was never proved beyond reasonable doubt, then doesn’t that mean that some — indeed all — of these other decision-makers got the case wrong? And, indeed, as Pell asserts, caused him a “serious injustice” that was only remedied last Tuesday? Maybe.

Disagreement between official decision-makers is a regular occurrence in the justice system. It’s why we have so many decision-makers on questions of proof of serious crimes. The history of miscarriages of justice — not just in Australia but everywhere — explains why all criminal defendants are given multiple opportunities to argue that there isn’t sufficient proof of their guilt. That’s what Pell did before the police, before two juries and before two courts. He only succeeded before the High Court, but that was enough.

On the other hand, the timing issue could have been picked up by any of those earlier decision-makers. That question of whether they should have picked it up shouldn’t be left to Pell’s defenders and antagonists. The various champions and detractors of juries and High Courts who have sprung up in the past year and week deserve every scepticism. I’ve little doubt that nearly all of them would have been arguing the exact opposite with equal dudgeon had either the jury’s verdict or the High Court’s gone the other way.

The criminal justice system is usually too busy, stretched and adversarial to engage in comprehensive reviews of possible failures to detect a problem early enough. But soul-searching and independent reviews are normal in high-profile cases where an error is picked up in a spectacular way. Pell’s case should be no exception. Given the unfortunate secrecy surrounding the original trials, a comprehensive inquiry is perhaps the only way to overcome the understandable public perception that, at one point or another, justice was not done in this case.

In that vein, I think it is worth setting out why it is possible that none of the official parts of the criminal justice system failed — or at least seriously failed — on the timing issue raised by the High Court. (For those wondering about my priors on these systemic arguments, I have written a book championing juries and many pieces — including a doctoral thesis — criticising the High Court’s work on unsafe verdicts, including in sexual abuse cases. Like most criminal law academics, I fret a lot about the roles of many people in miscarriages of justice but see lots of problems in most other ways of doing criminal justice.)

While police make many crucial decisions when they investigate crimes — and those decisions merit close scrutiny — it is not usually their role to make judgements about proof. Their role is to gather evidence for prosecutors, which they must do despite having no power to make most people talk with them. A gap in time between alleged crimes and an investigation — which jurors are rightly told greatly disadvantages defendants — also obviously hampers police. In Pell’s case, where every likely witness is someone who worked for Pell in 1996 and some — notably the sacristan, Max Potter — are now infirm, those disadvantages could account for the police’s failure to recognise the timing problem.

Nevertheless, the police did make a decision about whether there was proof that Pell was guilty when they charged him in 2017, possibly after disagreement with lawyers from Victoria’s independent prosecutors’ office. That charging decision was ultimately shared with Victoria’s then director of public prosecutions, John Champion (now a Supreme Court judge), and his successor, Kerri Judd, who could have stopped the prosecution if they disagreed with the police’s call.

But the bar for decisions to commence a prosecution is lower than those later in the criminal justice system. Public prosecutors can bring charges whenever there are reasonable prospects of a conviction and proceeding is in the public interest. This test was plausibly satisfied in Pell’s case. As Judd rightly pointed out in the High Court, testimony about events lasting mere minutes recalled from decades ago ought to be taken with a grain of salt. She lost the argument on appeal because — the court said — the trial witnesses weren’t challenged on their timing claims, including the possibility of a much longer private prayer hiatus. But prosecutors wouldn’t have known that before the trial.

It is at the trial where it is harder to understand why a critical timing issue didn’t bring proceedings to a halt. It’s worth noting that trial judges — magistrate Belinda Wallington at Pell’s committal hearing and chief judge Kidd at the County Court trial — only test whether the evidence the prosecution supports (here the accuser’s account) could prove guilt. The question of whether other evidence (such as from the opportunity witnesses) created too much doubt is one for prosecutors, jurors and appeal judges, who notably all reach their decision in groups. (The risks that flow from giving too much decision-making power to individual judges is why we should look askance at suggestions that single judges should replace jurors in trials of serious charges.) No one argues that Pell’s magistrate or judge made any major errors on things in their remit, such as courtroom procedures, rulings on the evidence or directing the jury.

But why didn’t Pell’s prosecutors stop the trial because of the timing issue? And why didn’t his jurors — the hold-outs in his first trial and all twelve in his second — acquit because of it? If the High Court is right about the timing evidence, then those things should have happened in one or both of Pell’s trials in 2018. The best defence I can offer is speculative and uncomfortable: the prosecutors and jurors quite possibly didn’t notice the issue. There is some compelling evidence behind this guess: two senior judges seemingly didn’t notice it either and nor did any of the journalists who watched and described Pell’s trials.

Even my generous take may seem quite damning of Pell’s prosecutors and jurors (and others), but the true culprit could be the whole idea of resolving complex questions at a single “trial.” Trials — and, especially, questioning dozens of witnesses in sequence and then summarising their evidence orally days later — are poorly suited to identifying crucial issues out of a mass of arguments, including fine issues of timing.

That’s why Shann wanted to show Pell’s jurors her animation. She argued that illustrating the timing issues this way suits contemporary approaches to presenting information, which jurors would be familiar with from their own devices. Without it, she prophetically suggested, “it was possible that they might not understand the full force, cumulatively, of the defence argument in relation to opportunity.” Weinberg’s retort — that there is more risk of confusion from presenting such “material in this highly questionable form” — ought to be reconsidered now, as should trial prosecutor Mark Gibson’s decision to object to the video in this case.

But trials’ deficits in complex cases go well beyond their low-tech approach. Trials require a dozen or so people to work — and, to an extent, fight — in a single room, while a dozen others are required to sit for weeks and absorb silently, before being locked away and asked to reach a consensus with strangers on what might be the most important decision of their (and others’) lives. The key question of proof, and the details it turns on, must vie for attention with concerns about fairness, interest, distress, comfort, time, money and personalities. The trial’s strengths — the atmosphere, the rhetoric, the high stakes, the group work — are also its weaknesses.

All of this may sound like a call to do away with trials, but it isn’t. Rather, it’s a call for the system we have, the one where anyone who is found guilty can ask one or more appeal courts to robustly review that trial finding at leisure and from a distance. The High Court held that one reason the Court of Appeal may have gone wrong in this case is that its judges acted too much like jurors, watching much of the trial via video recordings and focusing on which of the witnesses was believable. That may explain why, as the seven justices put it, Victoria’s two most senior judges “failed to engage” with whether the opportunity witnesses’ testimony left a reasonable possibility that a credible accuser was nevertheless wrong. The same may also be said of Pell’s prosecutors and jurors.

But maybe not. The above is just a possible account of what happened, the kindest I can think of. There are less benign explanations, not to mention rival conspiracy theories. Those theories are one of many reasons why the High Court’s acquittal of Pell ought to prompt an independent review of all the decision-making in this case. Without that (and anyway), we will each have to somehow find our own response to what has happened.

“I would like to reassure child sexual abuse survivors that most people recognise the truth when they hear it,” Pell’s accuser said in his statement at the end of the day on which the High Court acquitted his alleged abuser. “They know the truth when they look it in the face. I am content with that.” Hours into the freedom the High Court granted him, Pell said, “I hold no ill will toward my accuser, I do not want my acquittal to add to the hurt and bitterness so many feel.” I have no idea if either of these statements is sincere, but it doesn’t matter much. They both put to shame the cynicism of public commentators for and against Pell, and provide a path forward for the less cynical.

But the future is not the most important thing in this case. The past is far more important. It may be that one of these two well-spoken men is genuinely deluded in his recollection of what happened all those years ago. If not, then one of them is a liar who put the other one through a living hell. If that’s the case, then both of them know which man that is. The rest of us can believe what we want, but we will never know, unless that man confesses. Most likely, both will carry this shared knowledge to their graves. And after that, if the beliefs they were raised with — and may, against all reason, still hold — prove to be truth, they will go their separate ways. •

The post Pell in purgatory appeared first on Inside Story.

Last week the Federal Court, sitting as the Court of Disputed Returns, issued its judgement on what exactly happened when the Strauszes left Hungary. The Australian court’s unlikely interest in events seven decades ago and 16,000 kilometres away was focused on what five-year-old Erica took with her across the border.

We know that two decades later she would give birth to a son, Joshua, in Melbourne. The court’s concern was whether she brought her birth citizenship, first to Austria, then to Australia, and finally into labour. If she was a dual Australian–Hungarian citizen on 17 July 1971, then so is Josh Frydenberg right now. That would leave the federal treasurer ineligible to sit in Australia’s parliament and cabinet during the greatest crisis in most Australians’ lifetimes.

The case of Staindl v Frydenberg is a coda to a minor crisis from simpler days. In the eight months from October 2017 to May 2018, fifteen members of the federal parliament were unseated — six of them permanently — because they were considered dual citizens under section 44 of Australia’s constitution.

At the debacle’s centre was the High Court’s October 2017 ruling that five parliamentarians, including the deputy prime minister, were never elected at all, simply because they were dual citizens. Although politicians had fallen foul of that ban before, this was the first time it was applied to Australians with no adult connection to a foreign country, including two who had no childhood connection either. Fiona Nash, for instance, was disqualified for her British nationality despite being long estranged from her Scottish father and never having been to Britain.

Alas, the national court made its ruling more in anger than sorrow. The seven justices declared that:

while it may be said that it is harsh to apply section 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question… It is necessary to bear in mind that the reference by a house of Parliament of a question of disqualification can arise only where the facts which establish the disqualification have been brought forward in Parliament. In the nature of things, those facts must always have been knowable.

These are perhaps the least wise words the seven have ever written.

Frydenberg’s fate in the Court of Disputed Returns was determined by three facts: what Hungarian officials did before the Strauszes crossed the border; what documents the family carried while they crossed; and the fine details of Hungary’s citizenship law at the time. Last week’s decision revealed that neither Frydenberg nor any other Australian ever knew — or even can know — any of these things. The relevant records of Hungary’s secret police were lost in 1956 during the nation’s failed uprising against the Soviets. The Strauszes were either too young — the daughters were eight, five and one — or too old — the adults would have been 108 and 112 today — to testify as to what documents they carried. Most remarkably, Australia’s attorney-general bluntly told the Court of Disputed Returns that “the relevant content of Hungarian law in 1949 is unknowable.”

After they crossed the Iron Curtain, the Strausz family spent two weeks in Vienna, but ended up living at 11 Rue de Deux Gares in Paris’s tenth arrondissement. They were literally and metaphorically between stations. While they already held a landing permit that would allow them to stay in Australia for two years, they needed a Titre d’Identité et de Voyage that allowed them to travel internationally without a passport. Nearly a year passed before they travelled to Genoa to board the SS Surriento, bound for Fremantle and Sydney. They reached their new home on the second-last day of 1950.

Did they bring anything from their old home? The Strauszes described themselves as stateless, but a Sydney boarding officer wrote “Hungarian” as their “nationality” in a letter to immigration officials. His interest in the family’s homeland probably wasn’t idle. Australia in 1950 was awash with fears of communist infiltration via immigrants, seemingly even ones with every reason to flee Europe.

Similar irrational fears underlie section 44 of the constitution. The High Court has repeatedly identified the purpose of the ban on electing dual citizens as being “to ensure that members of the Parliament do not have split allegiance” with a foreign country.

It was the other thing the boarding officer noted in his letter — that the family were “in possession of Valid Passport” — that was especially dangerous for Josh Frydenberg. If Erica Strausz held a valid Hungarian passport in 1950, then everyone agreed that her son was ineligible to be elected in 2019. The law of Hungary, like that of so many overseas countries, bestows citizenship by descent, even to children whose parents had left their home country, took up another country’s citizenship and married a non-citizen. It is this combination of foreign countries’ generosity in bestowing citizenship and Australian constitutional law’s suspicion of the recipients of such gifts that caused last term’s debacle.

Before the election, I predicted that a perfect storm — widespread dual citizenship in Australia, the High Court’s strict ruling, the murkiness of the constitutional text and new constraints on late electoral cases — would lead to a rush of challenges immediately after Labor’s expected tight victory. But the rush (like the Labor win) never came. Instead, Frydenberg will very likely be the lone challenged member of the current parliament. His challenger, climate activist Michael Staindl, was motivated not by Frydenberg’s foreign allegiances, but rather by his political ones, and specifically his party’s climate policy.

Staindl’s challenge could proceed, despite the unknowability of what transpired seventy years ago, because any Australian politician can be unseated by uncertain facts. All that Staindl had to prove was that it was more likely than not that Erica Strausz was still a citizen of Hungary when Frydenberg was born. Because the Court of Disputed Returns isn’t bound by the rules of evidence, Staindl could rely on the border officer’s letter. But the letter wasn’t his main argument.

Instead, he argued that Erica Strausz’s continuing Hungarian citizenship was much more likely than not, because the Strauszes had no reason to renounce their citizenship and every reason not to. Staindl found a Hungarian lawyer who explained that renouncing citizenship in 1949 would have required permission from (or denunciation by) the secret police. Given that an ordinary passport (albeit probably obtained unlawfully) was needed to cross the border, telling the Hungarian police that they wanted out would be the last thing the Strauszes would have done. Nor, he added, was there any reason for them to contact the Hungarian authorities for favours after they left (oblivious as the Strauszes, like nearly everyone else, were about section 44 of their new homeland’s constitution).

Staindl’s case crawled until late last year, when the High Court of Australia sent it to the next court down in the hierarchy, over the objections of the treasurer and the attorney-general. In the Federal Court, Frydenberg produced a report from an Australian historian who had studied postwar immigration. She wrote that Australian border officials in the 1950s were more interested in new arrivals’ ethnicity than their citizenship and that “Valid Passport” was simply their shorthand for any legal travelling document, including a Titre d’Identité et de Voyage. Frydenberg’s Hungarian lawyers produced a book by Péter Bencsik, a historian specialising in mid-century central European travel documents, who wrote that the communist secret police in the late 1940s could and did issue “one-way” passports to emigrants who wanted to quit Hungary for good.

In short, the sole surviving records proved nothing either way. Staindl conceded that the Strauszes probably left Hungary with the secret police’s permission on one-way passports. But that didn’t resolve the real question: whether or not they left their citizenship behind. Instead, Frydenberg’s fate was resolved by the Federal Court contemplating what actually counts as “law” in a totalitarian state.

“I just want to say something about Josh Frydenberg”, said then prime minister Malcolm Turnbull, a week after the High Court’s 2017 decision. “Josh Frydenberg’s mother Erica Strauss was born in 1943 in the Budapest ghetto. That’s where the fascists had pushed all of the Jews in together as a prelude to sending them to the gas chamber. She wasn’t a Hungarian citizen when she was born and neither were her parents. You know why? The Hungarian fascist government, allied with Hitler, stripped the Jews of all of their rights. The right to citizenship and the right to life.”

But the Federal Court did not so hold. Indeed, no one asked them to.

The court’s judgement charts the grim facts of Jewish life and death in Hungary after the break-up of the Austro-Hungarian empire. First came the pogroms of the White Terror that installed an ex-admiral in power. Then, as Hungary allied with the Germans and Japanese in the second world war, came three anti-Jewish laws, imposing quotas on Jewish professionals, barring Jewish public service and criminalising sex or marriage with non-Jews. Finally, Nazi occupation brought Hitler’s Final Solution to Hungary, sending nearly half a million to Auschwitz. The Jewish population of Budapest, once almost a million, had shrunk to just 100,000 by the time the Hungarian government surrendered to the Soviets.

But Hungary had no equivalent of Hitler’s Nuremberg laws, which stripped Jews of their citizenship. And, unlike many countries (including Australia), Hungary’s various citizenship laws didn’t automatically convert into aliens people who transgressed in specified ways (by joining the enemy, for example) or took up another country’s citizenship. Rather, the communists’ laws gave Hungary exclusive control over each citizen’s citizenship. If you wanted to stop being Hungarian, you needed to ask for and get permission from the police. The government could “divest” you of your citizenship involuntarily, but only if it published that decision (and it didn’t in relation to any of the Strauszes.)

These grim facts of life in Hungary in the 1940s also cast a shadow over Frydenberg’s eligibility to be elected in Australia in the 2010s. If the Strauszes couldn’t rid themselves of their birth citizenships without Hungary’s permission, then nor could Frydenberg.

What saved the treasurer’s job was communism. Frydenberg’s Hungarian lawyers pointed to Hungary’s communist constitution, which came into force just weeks before the Strauszes departed. Cribbing heavily from Stalin’s 1936 Soviet constitution, it reinvented Hungary as a nation of “working people,” whose fundamental duties were to protect the property of the people, increase Hungary’s economic power, raise workers’ standard of living and so forth. By leaving Hungary, the lawyers posited, the Strauszes shifted from being working people to what the constitution called “enemies of the working people,” who were expressly denied the right to vote.

The very nature of the law under Communism provided Frydenberg with his best argument. Bencsik told the Federal Court that socialist legal theory has always recognised that the bureaucracy doesn’t just apply the law, it can also make the law through its own actions. This was especially so in Hungary in the 1940s and 50s, when “the published laws concerning passports and emigration, including the First and Second Citizenship Laws, were not applied consistently if at all.” The real law was what Benscik termed “pseudo law,” the practices of the secret police, Hungary’s real rulers. The “one-way” passport likely given to the Strauszes was a pseudo law, Benscik explained, legally barring them from returning to their homeland without permission.

Faced with this (literally) left-field argument, Staindl blinked again. He conceded that the Strauszes’ lack of any right of return to Hungary meant that all of the family, once they became Australian citizens and reached adulthood, were eligible to be elected to the Australian parliament. That included Erica, when she turned 18 in 1961 and when she gave birth to Josh Frydenberg in 1971. But Staindl argued that everything changed just as Frydenberg himself was turning eighteen.

That was the year, 1989, when communist governments fell across the Soviet bloc and the Iron Curtain vanished. That change also washed away the pillars of socialist law, including pseudo laws like the bar on re-entry by Hungarian emigrants. At that point, Staindl argued, the empty “shell” of Hungarian citizenship carried over the border by Erica and passed on to her son became full again, which was enough to make him a dual citizen for Australian constitutional purposes from then on.

Staindl’s argument didn’t fly. The Federal Court deemed it “imaginative” and (maybe) “appropriate in some legal contexts.” But not here. “These are not matters,” the court declared, “to be addressed using fine distinctions, metaphors or other constructs having little, or no, regard to the facts established on the evidence before us.” Staindl’s problem was that he never had the opportunity to put his “shell” theory to any expert in Hungarian law.

The Federal Court didn’t relish the prospect of having to watch sleepy witnesses testifying from Budapest via Skype, translated back and forward between Hungarian and English, and debating the niceties of socialist legal theory. Obliged by the electoral act to “be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities,” the three judges declared that written reports, including a joint one by the various Hungarian lawyers hammered together on their own in Budapest, would suffice. By the time pseudo law emerged as the most likely answer, it was too late to explore Staindl’s new theory or to try to find a footing for it in the (sometimes cryptic) reports.

In short, the court had sufficient evidence that socialist pseudo law had removed Erica Strausz’s Hungarian citizenship:

The niceties of proof of the production or issue of documents by the political police in a totalitarian state, possibly lost or destroyed in revolution (in 1956 in Hungary) or in travel (by the Strausz family in Hungary, or on the way to Vienna, to Paris, to Genoa, to Fremantle, and eventually to Sydney) can be put aside when one recognises the realities of 1949.

and no evidence that the end of that system had restored it.

“I see my journey to this place in the continuum of my family’s story,” Josh Frydenberg told parliament in his maiden speech in October 2010. He described how his father’s parents arrived from Poland “while Europe was plunging into darkness” and how his mother’s family’s “experience was different.” “Interned in the Budapest ghetto by the Hungarian fascists,” he explained, “they survived and eventually made their way through displaced persons camps to Australia.” The Strauszes ended up a “family of five crammed into a one-bedroom Bondi apartment.”

The welcome, opportunities and freedom they enjoyed, said the future treasurer, “is for me the essence of what makes Australia great.” While Samuel “punch[ed] holes in belts to eke out a living,” his middle daughter grew up to be a psychologist and marry a surgeon, and the couple eventually “settled in Kew, right in the heart of the Kooyong electorate. Never would they have dared dream that decades later, one of their own family members would represent Kooyong in the federal parliament. But in Australia anything is possible. We are only limited by our imagination.”

The future treasurer’s imagination surely never hinted that his family’s story would one day threaten to overturn the choices of Kooyong’s voters.

Frydenberg’s speech proudly noted the other luminaries who had been elected by Kooyong’s voters, including a future chief justice (John Latham, who famously dissented when the High Court struck down the law banning the Communist Party in 1951, just months after the Strauszes arrived in Sydney) and a prime minister (Robert Menzies, who famously owed his government’s 1961 re-election to Communist Party preferences — which makes Frydenberg Kooyong’s second MP to have his place in Australia’s government inadvertently saved by communists).

“I am proud of my Australian story,” Frydenberg concluded. “Decades ago in the gathering darkness of Europe, my family could never have imagined this day. But because this country is truly a land of opportunity I have been given this chance.” But he could continue sitting only because a Hungarian historian born the same year as Frydenberg was able to reveal an otherwise unknowable part of the law of that dark period to the Federal Court.

Is that all that kept Australia from losing its treasurer in the midst of this crisis? I don’t think so. Times have changed since 2017, and the High Court itself has become more creative in reading the constitution in ways that include, rather than exclude, Australians within our polity. But there are limits to what a court can do.

The only real solution to Australia’s exclusion of its many dual citizens from its parliament is to change its constitution, something that will require the support of all of the nation’s leaders. “I want to see an Australia where the only relevant consideration is the content of a person’s character,” Frydenberg told parliament in in 2010, before the “stop the boats” election but also long before Hungary’s decision — on the same day the Federal Court dismissed Staindl’s petition — to close its border with Austria for the first time since the fall of communism. •

The post Game of shells appeared first on Inside Story.

Presenting the report to parliament yesterday, prime minister Scott Morrison described it as a “stark and sobering” tale of “hope, frustration and disappointment.” He said something very similar last year, calling out the failure of the current approach and the hubris of those who had created it.

Yet the past year has not only seen problems go unresolved, it has also seen considerable progress in some areas — and enough of each to generate both scepticism and optimism.

The basis of the optimism is the December 2018 commitment by the Council of Australian Governments, or COAG, to partner with Indigenous people in refreshing the Closing the Gap framework and creating a forum for ongoing engagement. The formal partnership agreement between COAG and the National Coalition of Aboriginal and Torres Strait Islander Peak Organisations (Coalition of Peaks) came into effect in March last year.

Since then, a series of community consultations has considered how this new partnership might work. In January, the Coalition of Peaks released its Community Engagement Snapshots report, which found strong support for the three reform priorities it had proposed: developing formal partnerships between government and Aboriginal and Torres Strait Islander people to close the gap, boosting community-controlled services, and improving mainstream service delivery. A fourth reform priority — local data projects led by local communities and organisations — will be sent to COAG.

The Indigenous leaders engaged in this process are feeling optimistic that a full partnership approach can show the way forward. But their view is offset by the prime minister’s refusal to commit to an Indigenous recognition referendum until “there is consensus,” a position at odds with his commitment to the beginning of a “new era.” It will be hard for Indigenous people to trust the government to deliver a new approach when it consistently sidelines the work of the Referendum Council and the central importance of the Uluru Statement from the Heart.

How can Closing the Gap be improved? Fully recognising that their validity is limited by my non-Indigenous status and a lack of formal consultation, these are a few thoughts.

In policy terms, the focus must be on the key underlying causes of disadvantage.

First, racism. The lack of progress on this key determinant of the physical and mental health of Indigenous Australians may explain part of the unremitting gap in health and socioeconomic outcomes. Tackling and reducing racism, including ensuring that healthcare is culturally safe and respectful, should be an integral part of policies and interventions aimed at improving Indigenous health, especially that of children.

Second, very high rates of Indigenous incarceration are, in the words of a recent PwC report, “unfair, unsafe and unaffordable.” Inappropriate imprisonment and the failure to ensure needed post-release services lead to loss of culture, identity and connection to the land, aggravating the cycle of disadvantage and poverty. A new justice target is part of the refresh of the Closing the Gap framework, but if it is to be effective then the courts, police, corrections services and social services will all need to adopt its principles.

Third, safe and secure housing is key to the health, wellbeing, safety and dignity of Indigenous Australians. A new report from the Australian Institute of Health and Welfare found that in 2016, 29 per cent of Indigenous Australians were living in a dwelling with major structural problems, with 15 per cent of households lacking at least one basic facility (a functioning kitchen, bathroom, laundry or toilet). The proportions are higher in remote areas.

In focusing on these three areas, the government must commit to a real and enduring partnership with Aboriginal and Torres Strait Islander communities and organisations. Despite the rhetoric, the Morrison government’s commitment to consultation has generally been deficient.

Not long after the last election, the prime minister announced a new National Indigenous Australians Agency within his own department. Indigenous affairs minister Ken Wyatt described it as a “new era of co-design and partnership,” but the decision was made without consulting Indigenous groups. Meanwhile, the National Congress of Australia’s First Peoples lost its funding and the government persisted with its expansion of the cashless welfare card in Indigenous communities.

The decision to double down on the cashless card came despite growing evidence that it is adversely affecting many lives, has failed to get users into jobs, and is opposed in many communities. Many people subject to the card feel they have been punished by a loss of control over their own finances. This blanket imposition of a political ideology backed by very little evidence is completely counter to a partnership approach.

Another consultation-free act was the axing of funding for the secretariat that oversees the thirteen-member National Family Violence Prevention and Legal Services Forum. This annual $244,000, a tiny outlay for government, was justified by reference to an independent evaluation that, on the contrary, recommended increased resourcing.

And on the day Scott Morrison was promising a new approach to Closing the Gap, it was rumoured that the government had taken a unilateral decision to end funding of Indigenous housing — a dismayingly plausible possibility that highlights how little attention is paid to the social determinants of health.

These various government decisions also highlight the lack of coordination across departments and agencies. When prime minister Tony Abbott moved responsibility for the majority of Indigenous programs to the prime minister’s department in 2014, under the rubric of the Indigenous Advancement Strategy, the shocking news that he also cut more than $500 million from the programs hid the fact that the move might facilitate a whole-of-government approach to tackling Indigenous problems.

That has never come to pass — and it still doesn’t happen even within portfolios. Hearing loss, trachoma and rheumatic heart disease, for instance, all involve a similar healthcare approach (cleanliness) for prevention, yet these conditions continue to be tackled under a series of separate programs. Their high incidence in Indigenous communities won’t be reduced without a coordinated effort to improve housing.

“Every minister in my government is a minister for Indigenous Australians,” the prime minister declared yesterday. Given the known occasions on which the real Indigenous affairs minister, Ken Wyatt, has been sidelined (the referendum, for instance), Indigenous communities will need some convincing on this point.

They will also be looking for evidence that programs are introduced — and evaluated — where they are needed. Here, the signs haven’t been good. A June 2019 report from the Australian National Audit Office identified delays in evaluating the five-year-old Indigenous Advancement Strategy. The prime minister’s department had not met guidelines, the report said, and nor had the department kept records of key decisions or set targets for all programs and projects.

In October 2019, the new National Indigenous Australians Agency released an equally, if not more, damning report on the past ten years of Closing the Gap. (Oddly, the date on the report is March 2018, more than a year before the agency was established.) Among its findings were three fundamental criticisms. Cultural determinants are not captured in the policy framework, which makes collaborating with Indigenous Australians difficult. The evidence base to support many programs is lacking or weak, and programs are rarely evaluated. And the effort to close the gap has been hampered by inconsistent political leadership, constantly changing policies, insufficient resources, and workforce and funding cuts.

Finally, the funding maze needs to be streamlined and made more transparent. Organisations and communities deal with a level of complexity and “red tape” that would never be tolerated by the general business community, with the evidence suggesting that some Aboriginal health services are juggling forty or more funding sources with separate application and reporting requirements. Too often communities are unaware of services for which they are eligible.

A 2016 study identified 1082 separate Indigenous-specific programs. Less than one in ten had been evaluated, and most have produced little evidence of effectiveness. Multiple service providers often compete in the same communities (assuming there are providers), and duplication and waste are rife.

The impact of funding conditions on the governance and performance of Indigenous organisations is under-researched. Evidence suggests that the public financing of Indigenous organisations is successful when the focus is on the organisation rather than the program. Funded organisations should always be required to be accountable to their constituents; performance indicators should be negotiated rather than imposed; achievements should be rewarded.

Encouragingly, the health department will introduce a new funding model for the Indigenous Australians’ Health Program’s primary healthcare program in July this year. Three-year funding agreements, annually indexed, will become the norm, and the administrative burden will be reduced.

Recent efforts by the Productivity Commission have gone some way to tackling the lack of transparency. Preparing an analysis for Oxfam in 2017, I found it very difficult to track spending on Indigenous programs on the basis of publicly available data. But I did find every indication that the government is increasingly looking to mainstream services and programs to meet Indigenous people’s needs, especially in non-remote areas. While 55 per cent of the programs funded under the Indigenous Advancement Strategy were run by Aboriginal and Torres Strait Islander organisations, 81 per cent of direct Indigenous expenditure went towards mainstream services.

Pat Turner, lead convenor of the Coalition of Peaks, has described the gap between Indigenous and non-Indigenous Australians as “a gaping wound on the soul of our nation.” This wound won’t be healed without the best efforts of all Australians. The prime minister is right to say that the Closing the Gap strategy has reinforced “the language of failing and falling short” and neglected to “celebrate the strengths, achievements and aspirations of Indigenous people.”

Refreshing the program must involve building on the expertise and wisdom of Indigenous individuals and communities and the abundant success stories that have largely been unrecognised and uncelebrated. The Oxfam report In Good Hands: The People and Communities Behind Aboriginal-led Solutions is just one of the many excellent places to start. •

The post Gap year appeared first on Inside Story.

To be precise, Justice Peter Riordan of the Victorian Supreme Court agreed with the party’s defence team that the constitution of a political party is not enforceable by a court. Unless a party’s constitution declares that it is contractually binding — something they rarely do — it has no more status than the rules of an informal social club drawn up over a few wines and pinned on a noticeboard.

In making this ruling, the judge bypassed more than twenty-five years of precedent set by other courts in Australia. Those courts have held that political parties are not mere “voluntary associations” flying beneath the radar of the ordinary laws of the land.

Setka may appeal. Aware of this, the judge went on to look at the substance of his claims “in case I am wrong” and party rules are enforceable. On the substance, Setka won easily. The national executive is not a dictatorship and can only expel members for a limited set of offences under the party’s state rules.

So Setka has plenty of incentive to appeal, and could yet win his battle to remain a member. But if the bulk of the Labor membership and leadership disavow him, he’ll still be a pariah in the party.

He claims his position as head secretary of the Victoria–Tasmania branch of the Construction Forestry Maritime Mining and Energy Union depends on remaining a Labor Party member. But for the most part, this is a case about face and symbolic power — about opposition leader Albanese versus a controversial union leader.

Regardless of what happens on appeal, either side could then approach the High Court for its view. The court is likely to take the case. Not because the public is interested in the Albanese-versus-Setka show, but because it is in the public interest to resolve how the law conceives of political parties.

The nature of parties and the freedom of association they should enjoy have long been the subject of debate, here and abroad. The nineteenth-century view was that parties were mere factions of ideologically or personally compatible MPs and wannabe MPs. Even as their membership bases grew in the first half of the twentieth century, parties within the Westminster tradition remained (in most instances) unincorporated associations.

In the famous decision of Cameron v Hogan in 1934, the High Court held that party rules were not generally enforceable by the courts. This case also involved Labor, but it was not a mere locking of horns over whether one prominent figure was sullying the party’s reputation. It concerned Ned Hogan, Labor leader and former premier of Victoria, who had been summarily expelled by the party’s executive over his support for the austere, Depression-era Premiers’ Plan. According to the court, the judicial system could only intervene in party affairs to resolve disputes about ownership of property.

That decision was widely criticised in ensuing decades. (Recent critiques appear in works by political scientists like Anika Gauja and lawyers like me.) If even the most senior member of a party could be expelled, potentially in flagrant breach of the party’s own rules, what hope is there that the rule of law will prevail over brute force within these organisations?

In any event, parties are not organised to amass property but to channel or sway political opinion and win elections. They are central to our system of electoral politics and government. Besides these profoundly public functions, parties are also publicly funded. Since the 1980s, they invariably register with the Australian Electoral Commission to receive close to $2.80 for every first-preference vote garnered at national elections. In Victoria, the state division Setka is fighting, they also receive up to $6 per vote plus annual funding to cover administrative costs.

To cynics, such funding shows that parties — who, via their MPs, make the very statute law governing parties — are caught in a circular and self-serving trap. From this position “above” the law, they have been adept at avoiding imposing on themselves the kind of internal democracy they have imposed on, say, trade unions. But cynicism can be taken too far. We have a competitive party system and a critical media, so there is some political accountability for legislation dealing with parties.

Champions of freedom of association caution against undue legal interference with parties’ internal rules or processes. Given they benefit from public funding, the quid pro quo should be that parties are subject to a high level of financial transparency and probity, not a one-size-fits-all set of internal rules.

But Setka’s case, like Cameron v Hogan, doesn’t involve the law meddling with parties’ internal rules. In these disputes, members aren’t asking the courts to treat parties like public bodies that must be run according to a Rolls Royce standard of internal democracy and fair process. A party like the original Palmer United Party can still have a constitution that centralises and entrenches power in its founder and his family. If you don’t like it, join a party with greater internal democracy. In our competitive landscape, you have no fewer than fifty-three different parties to choose from at the national level alone.

Instead, the question here is simply whether members can ask the courts to resolve a dispute about the meaning and application of the party’s own, self-chosen rules. If those rules have not been abided by, why not? The remedies don’t involve monetary compensation. Instead, a court can declare the legal position to guide the party, or give an injunction to do justice between the party and the members concerned, at its discretion and depending on the time pressures and mutual behaviour involved.

In a watershed case in 1993, a Queensland Supreme Court judge decided just that. Party rules were to be enforceable in court and the approach in Cameron v Hogan was to be avoided. (This case concerned the Liberal Party breaching its own rules for vetting candidates for preselection.) Statutory developments like registration and public funding, he said, brought parties within the legal radar. They could no longer be treated as informal social clubs.

In a series of cases since then, Supreme Courts in various states have accepted and refined this approach. Party rules that are vague or deal with ideology, public policy or minor matters are not enforceable. Non-members cannot sue to enforce the rules, allowing parties to robustly repel hostile takeovers. When parties have internal dispute-resolution processes, members should exhaust them first, unless the matter is urgent.

By and large, parties came to accept this degree of judicial oversight. After all, it’s hardly bad practice for parties to abide by their own rules. Today’s dominant faction may be tomorrow’s dissidents. And declining social trust in parties is unlikely to repair if we retreat to a world where parties are not bound by their own rules.

Of course parties don’t like dirty linen being washed in open court, or having maverick members waste resources on speculative litigation. But sometimes internal disputes need to be definitively resolved, as a case this year over the Greens’ NSW Senate ticket demonstrated. Sometimes the party leadership doesn’t even have a dog in the fight and is happy for an independent court to resolve it. And often the party’s powerbrokers have friendly lawyers who will argue their case at mates rates. Not every member is so lucky.

This level of acceptance of court oversight has, until now, been reflected in how parties have responded to litigation. But the spectre of Setka, apparently, has triggered the Labor Party to use the nuclear option, to blast the law back to 1934. The party may be ashamed of Setka, but it will be a real shame for the law if this decision catches on. •

The post If Setka is shaming Labor, is Labor shaming the law? appeared first on Inside Story.

Last week’s announcement by Victoria’s chief justice, Anne Ferguson, that George Pell had lost his appeal against his conviction for child sexual abuse was accompanied by her observation that “it is fair to say that his case has divided the community.” She was probably referring to the very public divide between those who believe that Pell — like so many other priests before and since — is a child sex abuser and those who believe that the former archbishop is an innocent victim of lies and injustice. But there is a different, less discussed community division: between those who are sure either way about Pell and those who aren’t. It’s the latter schism that split Victoria’s Court of Appeal on Wednesday.

In his dissenting judgement, Justice Mark Weinberg writes that “there is, to my mind, a ‘significant possibility’ that [Pell] may not have committed these offences.” This is the eightieth time he has ruled on whether a jury’s verdict was unsafe — and the sixteenth verdict he has voted to overturn in a decade — but the first time even one judge has disagreed with his call. On Wednesday, the state’s two most senior judges did. After discussing the difference between judges and jurors, chief justice Ferguson and Court of Appeal president Chris Maxwell state, in parenthesis: “We do not ‘experience a doubt’ about the truth of A’s [Pell’s accuser’s] account or the Cardinal’s guilt.”

I have my doubts about Flynn’s sermon. Being in doubt is a good deal lonelier than being certain. People who are sure that Pell is either monster or martyr know exactly how to react to each development in his case. But those in doubt are left adrift. Is it right to be in doubt on such matters? Why, as Weinberg openly asks, don’t others share that uncertainty? Most of all, there’s the question Flynn posed, with its many possible answers, none satisfactory.

Aloysius: What happened in the rectory?

Flynn: Happened? Nothing happened. I had a talk with the boy.

Aloysius: What about?

Flynn: It was a private matter.

Aloysius: He’s twelve years old. What could be private?

Flynn: I’ll say it again, Sister. I object to your tone.

Aloysius: This is not about my tone or your tone, Father Flynn. It’s about arriving at the truth.

Flynn: Of what?

Aloysius: You know what I’m talking about. Don’t you? You’re controlling the expression on your face right now.

On learning his fate, “Pell slumped into his chair, looking frail. He appeared to grab onto the dock for support.” At least, that’s what Benjamin Ansell saw. Eliza Rugg saw his head bowed, “destroyed,” his “poker face gone.” But, according to David Marr, “Pell displayed once more his Olympian detachment. Don’t believe reports that he flinched. His lips pursed a little as he stared at the judges. That’s all.” These three were in the same room looking at the same man at the same time.

The 325 pages of the Court of Appeal’s two judgements are replete with moments like that. “Throughout his evidence,” the majority writes of the man who says Pell sexually abused him and another boy in 1996, “A came across as someone who was telling the truth. He did not seek to embellish his evidence or tailor it in a manner favourable to the prosecution.” Not so, according to Weinberg. “On occasion, he seemed almost to ‘clutch at straws’ in an attempt to minimise, or overcome, the obvious inconsistencies between what he had said on earlier occasions, and what the objective evidence clearly showed.” The judges watched the same video of Pell’s accuser, the very one both juries saw, but it divided them nearly every time.

Consider one of Weinberg’s “obvious inconsistencies.” When he first spoke to the police in 2015, the thirty-two-year-old complainant didn’t say where he and the other boy were when they “nicked off” from the choir ahead of their abuse (and the police seemingly never thought to ask, even during a walk-through of St Patrick’s). At Pell’s committal in 2018, the complainant told prosecutor Mark Gibson that his “first specific memory” was being in the sacristy after “poking around in the corridors.” But, at that same hearing, he gave Pell’s barrister, Robert Richter, a detailed account. He and the other boy left when the choir was in a “procession” outside the church, entered the building through a south side entrance and went through some double doors before stumbling across the sacristy, which he’d never seen before. “That is understandable and consistent with human experience,” write the chief justice and the president.

Likewise for what the majority labels “undisputed facts” that “the jury were entitled to view” as “independent confirmation of A’s account,” specifically the man’s largely accurate description of the priests’ sacristy (which Pell was using at the time because his personal sacristy was being renovated). Weinberg saw no independent confirmation of anything, just some conveniently selective memory:

Mr Richter: You were taken, were you not, on a tour of the Cathedral when you joined the choir?

Complainant: I would have, yes.

Mr Richter: And you were shown the sacristies?

Complainant: I have no recollection of that, no.

Mr Richter: Do you dispute it?

Complainant: Um, no

But Ferguson and Maxwell think that “the jury were entitled, in our view, to discount” this exchange.

The different takes extend to what the lawyers told the three judges this year as they prepared for the appeal. The majority states that “the defence’s primary submission was that we should not watch any of the evidence” in the videos of Pell’s second trial. But Weinberg writes that Pell’s lawyers “initially objected” only to the court’s “desire to view the recording of the complainant’s evidence, as well as the recordings of several other key witnesses,” insisting that the judges watch a dozen more witnesses.

The three did end up spending “days” watching footage nominated by both sides, while expressing mixed views about doing so. Majority and minority cite, respectively, a High Court ruling and empirical evidence warning against reading much into how witnesses look or act in a courtroom. But the three also fret that — with the notable exception of the complainant’s testimony — Pell’s jury got to see the same witnesses in three dimensions, “collectively” and in an “unbroken sequence.” The latter differences seem to especially concern Ferguson and Maxwell. Noting that the judges’ own viewings were “for the most part, done individually,” they opted to mimic the jury’s experience when it came to Pell’s accuser. Unlike Weinberg, they seemingly watched his testimony cold (with a later reading of transcript “reinforcing the impression we had gained from watching these recordings”) and twice, as Pell’s jurors did, before and while they deliberated.

The viewings didn’t unite them. The prosecution’s appeal barrister, Chris Boyce, urged the judges to watch the complainant’s reaction after Richter asked him why he never spoke with the other boy about their abuse. Wednesday’s judgements reveal his response: “We couldn’t fathom what had happened to us.” On the majority’s computer, these words had a “ring of truth” and showed a “complete absence of any indication of contrivance in the emotion which A conveyed.” On his, Weinberg saw only that Richter’s question “seemed to cause the complainant a good deal of distress,” but that — possibly due to restrictions on cross-examination, both social and legal — its cause “was never made precisely clear.”

Aloysius: There was alcohol on his breath. (He turns.) When he finished meeting with you. (He comes back and sits down. He rubs his eyes.)

Flynn: Alcohol.

James [another nun]: I did smell it on his breath.

Aloysius: Well?

Flynn: Can’t you let this alone?

Aloysius: No.

Flynn: I see there’s no way out of this.

None of this is new. “I have in purely subjective terms a feeling of anxiety and discomfort,” declared NSW appeal court judge Brian Sully in 1993, “about the verdicts of guilty that were returned against the present appellant.” But he nevertheless upheld the jury’s finding that the defendant had sexually abused his thirteen-year-old daughter, explaining: “I am not persuaded that a reasonable jury, instructed as carefully and as fully as was done in the present case, must have been left with a reasonable doubt as to the guilt of the accused.” The judge’s two colleagues on the Court of Appeal didn’t share his concerns. A year later, though, the High Court ruled that Sully should have gone with his gut: “a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.”

The High Court’s decision to give Australian appeal judges a powerful role in reviewing jury verdicts followed its experience in a high-profile case a decade earlier. In 1984, the national court split three judges to two when it upheld the unanimous jury verdict that convicted Lindy and Michael Chamberlain for the murder of their daughter Azaria at Uluru. Just two years later, a chance discovery of Azaria’s missing matinee jacket — which the prosecution had doubted she was wearing — led to a speedy revisiting of all the evidence in the case and the belated quashing of the convictions. The reasons of the majority judges in the High Court — who together headed the nation’s judiciary for the entire 1980s and 90s — are painful to read today. By contrast, Lionel Murphy’s fiery dissent, literally on the eve of the corruption scandal that would close out his career and life, is feted for its foresight.

Justice Weinberg’s dissent in Pell’s appeal draws heavily on this history, but especially the lesser-known judgement of William Deane. Deane is probably Australia’s favourite governor-general, remembered especially for his compassion during national tragedies. Once a commercial law barrister, his dissent in the Chamberlain case was nothing like Murphy’s. He — alone among the dozen judges to judge the Chamberlains — openly admitted that he found their case “a difficult one.” Like most Australians at the time, he thought that the defence theory that a dingo killed Azaria was “far-fetched,” and was troubled by the Chamberlains’ own behaviour the night she vanished. But, he wrote, the prosecution case — with its ultra-tight timelines, multiple witnesses to be discounted and insistence on an inexplicable, heinous, public, spontaneous crime against a child — “strikes me as being, in its own less spectacular way, almost as unlikely as is the story of the dingo.” Almost! And yet, he would have freed Lindy Chamberlain years before the national consensus shifted in her favour. I nominated Deane’s anguished judgement for a recent book on Great Australian Dissents.

Weinberg’s finding that there is a “significant possibility” that Pell is innocent is a direct quote from Deane’s own conclusion about the Chamberlains. And his dissent follows Deane’s route to doubting a jury’s verdict. “I cannot conclude that the complainant invented these allegations, at least in respect of the first incident, and do not do so,” he writes, noting that, “sadly, as we have come to appreciate, there is nothing wholly improbable about allegations of that kind being true.” However, “the devil is in the detail” — specifically “a substantial body of evidence” on the improbability, not impossibility, of Pell being in the sacristy unaccompanied  — that  “left open at least a ‘reasonable possibility’ that the complainant’s allegations fell short of the standard of proof required.”

Weinberg devotes the last two pages of his reasons to setting out Deane’s position on the dangers of treating jury verdicts as “unchallengeable,” a stance, Deane wrote, that could “sap and undermine the institution of trial by jury” and risk making jurors “a potential instrument of entrenched injustice.” Deane’s warning was endorsed by New Zealand’s top court a decade ago, but Weinberg’s dissent is the first time it has been repeated by an Australian judge.

“I find myself in a position quite similar to that which confronted Deane,” Weinberg writes, and he can’t help pointing out that Deane’s dissent “was ultimately, though for other reasons, proved correct.” In 1984, no one would have predicted that the Chamberlains would be exonerated in a few short years. However, continuing developments in forensics and the slim chance that Azaria’s body might be discovered meant that everyone, including the High Court’s judges, knew that one day the case’s mysteries might be solved. There is no prospect of that happening in Pell’s case. The only things we can ever know about what happened at St Patrick’s in 1996 are inside a few people’s heads.

James: Take your time, Father. Would you like some more tea?

Flynn: You should have left it alone.

Aloysius: Not possible.

Flynn: Donald Muller served as altar boy last Tuesday morning. After Mass, Mr McGinn caught him in the sacristy drinking altar wine. When I found out, I sent for him. There were tears. He begged not to be removed from the altar boys. And I took pity on him. I told him if no one else found out, I would let him stay on.

(Sister James is overjoyed. Sister Aloysius is unmoved.)

History repeats, even in the High Court. In 1994, the seven judges of the national court not only ruled that appeal judges should generally give effect to their own doubts when judging jury verdicts, but also judged a jury verdict themselves. The court ruled that the jury’s finding of guilt in a child sexual abuse case was unsafe. The majority judges (including William Deane) explained that a teenager’s account of being raped by her father was rendered improbable by the squeaky bed on which she said the crime occurred and was contradicted by medical evidence (of her “intact hymen”), the television guide and her father’s denials. Tellingly, the decision was four votes to three. In my view, the decision has aged badly.

I’m not alone in thinking that. Ferguson and Maxwell’s judgement dismissing Pell’s appeal relies heavily on one of the dissenting judges in the 1994 case. Unlike Dr Ferguson and Rhodes scholar Maxwell, Michael McHugh left school at fifteen for a variety of blue-collar and later white-collar jobs, before working his way to a legal qualification. He was soon recognised as a formidable trial and appeal advocate. One of his last cases before becoming a judge was to represent the Chamberlains in their (unsuccessful) court appeals.

But McHugh’s sharp dissent from the High Court’s later ruling on child sexual abuse verdicts championed the jury system. “The collective experience of the jury is more likely to fit them for the task of evaluating the evidence,” he wrote, noting that judges assessing the conduct of a thirteen-year-old complainant must rely on views “derived from their own past contact with teenagers [that] may well be out of date.” (Pell’s accuser was born during Ferguson’s last year as a law student, Maxwell’s first as a barrister, and the first year of Weinberg’s stint as head of my law school.) In their own judgement, Ferguson and Maxwell write that Pell’s jurors “had the advantage not only of a far wider range of life experience than that of three judges but of being able to draw on each other’s experiences in the course of their deliberations.”

I spent much of my doctorate on proof in rape trials championing McHugh’s approach to deciding whether to believe a sexual abuse complainant. In 1994, McHugh had no access to videos of the complainant. Instead, he pored over the transcript, to conclude that “there was much in the detail of her account that made her central allegations ring true,” citing passages like this one:

Q: What did you understand at that point that he was talking about?

A: Then I understood that he meant had I had sex with Mark. So I said, “Dad, we didn’t go all the way” or something like that. And Dad just went, “Right.” Then he got on top of me and he started to push his penis into my vagina, and he kept saying, ‘Lift your hips up and it won’t hurt as much.’”

Ferguson and Maxwell likewise found multiple “rings of truth” in the evidence of Pell’s accuser, while also quoting McHugh at length on the insignificance of more peripheral details. On the often-shifting dates the complainant nominated for when the sexual abuse occurred — a point Weinberg dwelt on in his dissent — the majority judges simply observe that “This is the kind of detail about which honest witnesses make mistakes, as McHugh J said.”

I think the majority of the High Court in 1994 overcompensated in response to their court’s failure in the Chamberlain case a decade earlier. The case before them had several features that make it a much stronger prosecution case than many child sexual abuse trials, including Pell’s. Unlike many abuse victims, including the boys in Pell’s case, the teenager told multiple people about what her father was doing to her: first her best friend, then her sister, then a school counsellor. And, although her father denied all and even testified in his defence, he didn’t come across well. “I would suggest,” he told the police, “that our first priority would be to find out whether in fact K [his thirteen-year-old daughter] is still a virgin.” McHugh thought that those words revealed far too much knowledge about his daughter’s hymen. His words simply frighten me. (I dedicated my doctorate to the unnamed complainant.)

The reason I find Father Flynn’s question about uncertainty so difficult is that there are enormous dangers both in making too much of doubts and in making too little. Too much doubt is why the courts (among others) have allowed far more than one monster to prey on children. While Ferguson and Maxwell refuse to mention the elephant in the room in their judgement, Weinberg states that the royal commission’s findings on that topic “represented a shocking indictment of clerical abuse in this country.” But Weinberg also raises the case of Carl Beech, who was sentenced in late July this year — while the three judges deliberated on Pell — to eighteen years in an English prison for inventing claims that he and others were the victims of half a dozen monsters, many well-known figures.

Beech’s story was exposed because he made claims that could be tested decades later, specifically that the villains had repeatedly broken his bones. Were it not for that detail, it might not have been him who was imprisoned last month. Long before X-rays proved him a liar, the investigation’s head publicly declared Beech’s story “credible and true.” Those words frighten me too.

When I read the Court of Appeal’s judgements on Pell, I see signs of both the majority and the dissent overstepping their respective marks. Weinberg’s stated willingness to believe the complainant’s account of an archbishop raping two choirboys in the St Patrick’s sacristy (but for the “devils in the details”) did not extend to the same witness’s account of Pell striding into a group of choirboys and briefly grabbing his genitals. “I would have thought that any prosecutor,” writes the former director of public prosecutions, “would be wary of bringing a charge of this gravity against anyone, based upon the implausible notion that a sexual assault of this kind would take place in public.” But to the majority (and me), “a fleeting physical encounter of the kind described by A can be readily imagined” and “it seems to us to be quite possible that this brief encounter was not noticed” except by abuser and abused.

But the majority goes further than I would. “What does seem improbable to us,” they write, “is that A would have thought to invent a second incident if his true purpose was to advance false allegations against Cardinal Pell,” noting that more incidents mean more risks of the story unravelling. I find this claim not only dubious — because the same things that make the second incident harder to notice also make it harder to disprove — but dangerous. The majority reasons this way throughout their judgement, asserting that the problems of the complainant’s account — his errors, his uncertainties, some of its improbabilities — are not merely explicable but positively “supportive” of his credibility, on the basis that a liar would have told a more believable story. At the end of that path of reasoning waits Carl Beech.

James: Well. What a relief! He cleared it all up.

Aloysius: You believe him?

James: Of course.

Aloysius: Isn’t it more that it’s easier to believe him?

James: But we can corroborate his story with Mr McGinn!

Aloysius: Yes. These types of people are clever. They’re not so easily undone.

James: Well, I’m convinced.

Aloysius: You’re not. You just want things to be resolved so you can have your simplicity back.

Shanley’s screenplay won a Tony and a Pulitzer, and was also nominated for an Oscar when adapted for film in 2008. The three-hander’s A-list cast — Meryl Streep (playing Sister Aloysius, twenty years after she played Lindy Chamberlain on screen), Philip Seymour Hoffman and Amy Adams — improbably received four acting nominations, with Viola Davis nominated for a stunning ten-minute scene as Donald’s mother, which I won’t spoil here. I saw Doubt on stage in 2006. Later productions in Newcastle and Melbourne in 2015 and Sydney in 2017 overlapped with the royal commission. I’m not sure it’ll be staged here again.

Much has been made of Mark Weinberg’s criminal law experience. It’s true that he has an extensive career in criminal justice and has heard eighty unsafe verdict appeals compared with Anne Ferguson’s five. But Chris Maxwell, the Court of Appeal’s president, has heard eighty-five. I’ve previously noted that none of these judges overturns jury verdicts as often as their colleagues. Ferguson’s limited experience explains why she is yet to overturn a jury verdict, while Maxwell’s rate of one in eight is lower than Weinberg’s one in five. Pell’s case is the first unsafe verdict appeal in which Mark Weinberg was at odds with his colleagues (including Chris Maxwell, whom he’s sat with in such cases twenty times to date), but it’s the sixth time Maxwell has differed from either or both of the other judges on his panel. Each time, the Court of Appeal’s president voted to uphold the jury’s verdict.

And yet, Maxwell used to allow such appeals as often as his colleagues. He did so eleven times in his first fifty unsafe verdict cases, the same rate as Weinberg’s. But his last such ruling was in 2013. Pell’s appeal is his thirty-sixth consecutive rejection of an unsafe verdict argument (a six-year period where Weinberg allowed such appeals seven times as part of unanimous benches and Maxwell dismissed five as part of divided benches). It’s as if, at some point in the last six years, Maxwell simply stopped doubting.

At the end of Doubt, Father Flynn leaves the parish after a single conversation alone with Sister Aloysius, where each confesses to (unspecified) mortal sins. Shanley lets the audience, with Sisters Aloysius and James as their surrogates, decide whether Flynn is a monster. Fifteen years after its debut, the play perfectly catches the tenor of the times, with the exception of its very last spoken line.

Aloysius: In the pursuit of wrongdoing, one steps away from God. Of course, there’s a price.

James: I see. So, now he’s in another school.

Aloysius: Yes. Oh, Sister James!

James: What is it, Sister?

Aloysius: I have doubts! I have such doubts!

(Sister Aloysius is bent with emotion. Sister James comforts her. Light fades.) •

The post A judge’s doubts appeared first on Inside Story.

Since his appointment to the bench in 2015, Salvatore Vasta has resolved well over 1000 cases as well as holding key administrative positions on the FCC. But his tenure has been dogged by controversy, prompting some to ask whether he might be “Australia’s worst judge.” He has been criticised not only for making basic errors of fact and law, but also for rudeness, taking over cross-examinations, impermissibly jailing people appearing before him, and making orders that plaintiffs neither initiated nor supported.

Three cases have sparked particular attention and fuelled criticism.

First, Vasta fined an underpaying employer $85,000 and sentenced him to a maximum of twelve months’ imprisonment for contempt of court. The Full Federal Court overturned the decision in a scathing judgement that described his behaviour as “egregious,” “openly hostile,” “disparaging” and “sarcastic.” The appeal court also lambasted his interventions as “aggressive and, at times, unfair” and said his questions “frequently cut Mr Jorgensen off while he was endeavouring to explain critical aspects of his case” and were “in an unfair or inadmissible form and would have been objectionable if asked by counsel.”

In the second case, Vasta sentenced another man to twelve months’ imprisonment for contempt — this time a father of two young children who had failed to disclose financial documents during a property dispute with his estranged wife. The order was so serious that his wife opposed it, telling the court, “We have kids together that I have to think about as well, that this affects the kids for the rest of their lives.” Despite this, the man spent six days in maximum security prison, reportedly on suicide watch, before being released pending his appeal. In February the Full Court of the Family Court upheld that appeal, labelling Vasta’s orders no less than “an affront to justice.”

Then came Vasta’s order that the child of a same-sex couple “be baptised as a Catholic if it is in the view of a priest that it is appropriate for the baptism to occur,” even though no such order had been sought by the parties. This order was also overturned by the Full Court of the Family Court, with the three appeal judges adding that Vasta’s threat to jail one of the child’s parents for five years “might be seen as hyperbole, deployed in an attempt to bully…”

According to the Australian Financial Review, Vasta’s response to being overturned on appeal was to say, “It’s those Labor Party judges. They’re out to get me.” The newspaper’s legal affairs editor, Michael Pelly, was prompted to ask whether Vasta was “Australia’s worst judge.” The Law Council of Australia lodged a complaint with chief judge Will Alstergren and has threatened to refer the matter to federal parliament.

Is the removal of Salvatore Vasta from the bench a realistic or appropriate prospect? Let’s begin with some perhaps-uncomfortable truths. Judges are human. They make mistakes. They face demanding workloads in a high-pressure environment and they feel the inevitable effects. In an FCC memo reflecting on the pressures facing the court, Vasta said that “it would be understandable if we just gave into despair.”

The role of a judge is to interpret and apply the law to resolve disputes, but neither the law nor the facts of these disputes are necessarily clear. There is room for disagreement. Decisions may be appealed and appeal judges may favour different interpretations of the law and the facts. Judicial decisions may spark the ire of the parties, the public and even governments. It can be difficult to determine when judges are incompetent and when their behaviour in the courtroom — cultivated in a strongly adversarial world — crosses the line into misconduct.

No one understands these pressures better than judges themselves. This is why the comments of appeal courts carry particular weight in the Vasta controversy. Such direct criticism of a judge is rare. Repeated criticisms are cause for serious concern.

Shaping the whole area of judicial conduct and complaint management is that all-important constitutional principle: the separation of powers. It is vital that the judiciary maintains the basic independence and integrity that enable it to administer justice and uphold the rule of law.

The judiciary is kept at arm’s length from the government partly by laws that make it very difficult for the government to fire or even sanction judges, especially for their judicial work. For federal judges like Vasta, this protection is entrenched in section 72 of the Constitution, which provides that the governor-general in council may only remove a judge from office “on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.” Similar protections exist in the states and territories.

The only time that the section 72 removal process came close to being deployed was during the attempted removal of High Court justice Lionel Murphy for allegedly attempting to pervert the course of justice to help his friend, solicitor Morgan Ryan. After multiple Senate inquiries and criminal trials, the removal process came to a halt when Murphy announced he had terminal cancer.

The removal of Vasta’s father from the Queensland Supreme Court likewise did not concern his judicial work. Angelo Vasta was implicated in the Fitzgerald inquiry into police corruption, which sparked a commission of inquiry consisting of three prominent retired judges. The commission reported that Vasta’s behaviour — which included giving false evidence in court and falsifying transactions and deductions for tax purposes — warranted his removal from office. In light of these findings the Queensland parliament sought, and the governor ordered, his removal from office.

What is the likelihood that Salvatore Vasta will be removed from office for his conduct on the FCC?

Neither Angelo Vasta nor Lionel Murphy was implicated for his judicial decisions and courtroom behaviour, and the removal of a judge on these grounds would be unprecedented and difficult. Parliament should, and would, take this step only in limited circumstances, applying high thresholds for misbehaviour and incapacity. The alleged misbehaviours of Angelo Vasta and Murphy were breaches of the law, and they faced legal consequences beyond removal. Salvatore Vasta’s conduct is more complicated.

And then comes the issue of proof. The Constitution requires “proved” misbehaviour or incapacity but does not elaborate on the methods or standards of proof.

In all, the removal of Vasta is not an imminent prospect, and it would take the federal parliament into uncharted and uncertain constitutional terrain.

Short of engaging constitutional removal processes, complaints against judges are traditionally handled within the court by the chief judge, who has a range of “soft powers” at his or her disposal. A recent FCC statement noted that these include “counselling, mentoring and in exceptional circumstances, the judge in question may be temporarily removed from sitting.”

Internal complaints management preserves judicial independence by limiting the government’s involvement in judicial business. It also preserves the integrity of the court by providing a flexible, discreet and potentially effective means to tackle the issues and account for the stresses and pressures that might underpin the problem.

In response to the complaints against Vasta, the FCC statement cited his “extremely heavy workload” and said that he had been asked to step down from some of his administrative roles, including as the court’s national list manager. Vasta was also receiving mentoring “in appropriate areas to fully assist and support the judge to fulfil his duties.”

Leaving complaint management to the chief judge has its weaknesses. One became clear during the brief and tumultuous tenure of Tim Carmody as chief justice of Queensland: if the chief judge handles complaints, then who handles complaints against the chief?

A further weakness lies in the apparent chasm between constitutional removal and soft censure. In light of the severity and consistency of the complaints against Vasta, the chief judge’s response risks the appearance of being too little too late and may not save the court’s reputation.

So how can the integrity of the court be maintained when discreet internal processes don’t seem to be enough, but a joint sitting of parliament is a step too far?

A positive trend has been gradually making its way across Australia. Independent judicial commissions have been introduced in New South Wales, South Australia, Victoria and the Australian Capital Territory. One of the primary roles of these bodies is to handle complaints against judges using a relatively clear and open process that allows both the complainant and the judge a chance to be heard. Importantly, commissions are at arm’s length from government, and the decision-making process can be tailored to the complaint (to avoid a judge resolving a complaint against himself or herself, for example, or other situations that could suggest bias).

These commissions fulfil a further, constitutional, role. They can find that the judge meets the requirements for removal from office and make a recommendation to parliament to that effect. Thus the commission can simplify the process from initial complaint to eventual removal, and address the sticky issue of “proving” that the grounds for removal are met.

At the moment the Northern Territory, Queensland, Western Australia and the Commonwealth lack independent bodies to handle complaints against judges. The introduction of independent judicial commissions in these jurisdictions would be a significant step in the right direction for judicial independence and integrity. It would complement and address weaknesses in the traditional internal complaints process. A clear, open and independent process would benefit the public and could even lessen the need for the scathing commentary and public critique of judges that can, awkwardly, risk judicial integrity by trying to improve it.

There is, though, an elephant in the room when judicial misbehaviour and incompetence are discussed. The appointment of federal judges is an opaque process that effectively rests in the hands of the attorney-general. This secretive and highly discretionary approach can, and has, resulted in political appointments to key decision-making positions. It risks putting judges on the bench who simply aren’t up to the job, which obviously has an impact on the lawyers and parties who appear before them.

This appointment system also has a broader systemic impact. Colleagues of struggling judges may be under increased stress as they pick up the slack. The number and complexity of appeals may increase. And there are time and cost ramifications for the parties and for the justice system as a whole. The reputation and integrity of a court rest in large part on the merit of its judges, and the importance of judicial appointments cannot be overstated.

In many jurisdictions independent commissions play an important role in judicial appointments. A new commission to handle complaints against federal judges could be just half the story in dealing with threats to judicial integrity by misbehaviour or incapacity. The other part of that story is the introduction of an independent body and more open process to assist the attorney-general in selecting judges.

Meanwhile, it’s been a tough year for Salvatore Vasta, who has been relieved of administrative duties while he takes part in mentoring sessions. A lot is riding on whether these strategies bring about some radical improvements in his courtroom behaviour. If not, chief judge Alstergren may have to take up his option of last resort and temporarily remove his most prolific judge from judicial duties.

Continued criticism and controversy may also compel the Law Council to follow through with its threat to refer Vasta to the federal parliament and seek his permanent removal from judicial office. But that would be an extreme step and could fall flat if Vasta’s conduct fails to meet the untested and uncertain constitutional requirements for removal. •

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The prisoner is a man who preyed upon the young, the vulnerable, the impressionable, the child needing a friend or a father figure and the child seeking approval from an adult. And for what? For his own sexual gratification, without thought or concern for the feelings or the sexual development of his victims. How can a man, who showed a kind and friendly face to adults, but who sexually abused so many young boys in so many ways over such a long period of time, be considered to be a good man? I accept that to some people there is good in everyone, but I cannot see any good in the prisoner.

Two decades ago, NSW District Court judge John Nield addressed these words to one of Australia’s worst sex offenders, who had abused dozens of children in his congregation. The priest was already serving a six-year term — the same sentence George Pell is now serving — for twenty of those offences. Nield’s task was to increase that sentence after three new victims came forward and the priest himself confessed to dozens of other crimes. He gave the priest a further sixteen years.

But in 2001 the High Court ruled that the judge had mistakenly refused to take account of the eight witnesses who had described how good the priest was at his job. Fellow clerics spoke of the marriages the priest saved, the bereaved he comforted, the sick he tended and the charity he gave to all, in the same years that he raped children. The district’s vicar-general told Nield that so many had benefited from the priest’s ministry that it “would be tragic if the good he has done were lost sight of in the situation that he is in at present.” Parishioners whom the priest had comforted in their darkest hours told of visiting him in Long Bay prison, but Nield dismissed their evidence tersely: “Whatever he had done and achieved, he is not a good man.”

Should we sentence people for what they did or who they are? When Victoria’s County Court chief judge Peter Kidd sentenced George Pell last week, he was at pains to say that he was not sentencing him for all the bad deeds in his life. “You are to be punished only for the particular wrongdoing you have been convicted of on this indictment, of sexually abusing two boys in the 1990s, and only of that wrongdoing.” Not for Pell’s alleged abuse of other children, on which charges had been dropped. Nor his alleged failures to stop other priests’ abuse, on which charges have never been brought. And also not for Pell’s many bad but legal acts as one of Australia’s most reviled religious leaders: against his opponents in the Church, against the faithful who differed with his doctrinal views, against victims seeking compensation, against humility, even against art. Just for what he was found to have done to two boys in 1996.

But the law’s laser focus doesn’t hold for the other side of the personal ledger — not since the High Court weighed in over what Nield said to his prisoner. “Reading Judge Nield’s remarks on sentence,” observed Justice Michael Kirby, “reminded me of nothing so much as the judge’s remarks to Oscar Wilde.” He was referring to events a century earlier, when judge Alfred Wills told the playwright, whom a jury had just convicted of gross indecency, “It is no use for me to address you. People who can do these things must be dead to all sense of shame, and one cannot hope to produce any effect upon them.” Kirby joined a majority of the High Court in ruling that Nield’s words to his prisoner lacked “the detachment that his role required” and wrongly offered a “one-dimensional” take on the priest’s character. Holding that the priest “was entitled to some leniency for his otherwise good character,” they ordered a re-sentencing that shaved a year off the priest’s sentence.

We don’t know exactly by how much George Pell’s sentence was reduced because of the evidence of his ten character witnesses, including former prime minister John Howard, who described Pell as a “lively conversationalist” who “frequently displayed much courage and held to his values and beliefs, irrespective of the prevailing wisdom of the time.” The chief judge didn’t mention Howard, but noted how people who knew Pell “for many years in various professional and personal capacities” had written that he “dedicated his life to service, in particular to vulnerable members of the community.” Kidd observed that the prosecution left unchallenged claims that Pell was a “compassionate and generous person, especially to those experiencing difficulties in their lives,” and assertions about his commitment to “social justice” and youth education. Ruling that his offending was “isolated,” he told Pell: “I make substantial allowance for your good character and otherwise blameless life.”

Remarkably, almost everyone was able to hear all of Kidd’s words at the same time Pell did. The chief judge explained his decision to let the ABC broadcast his sentencing remarks as “simply a clear demonstration of transparent and open justice and an accessible communication of the work of the court to the community of a case of interest.” It’s surely no coincidence that he had recently seen for himself how dangerous it can be to leave the communication of Pell’s fate to courtroom journalists. Two weeks earlier, the reporting of Pell’s sentencing hearing — where lawyers and judge debated the ground rules for punishing him — was largely botched. Journalists’ live-tweeting of single sentences or phrases without any context led some to think that Pell’s counsel had admitted his client’s guilt and others to attack him outside the courtroom.

By contrast, last week’s rare instance of very modern open justice sits well with studies that suggest that frustration about sentences switches to satisfaction when members of the public hear the judge’s reasons directly, rather than from the media. In Pell’s case, the immediate benefits were exemplified by Waleed Aly’s celebrated take the next morning. “A judgement is not an act of advocacy,” Aly explained. “It is not an essay arguing a single point relentlessly until its inevitable conclusion, but the balancing of competing interests and principles.” Much the same could be said for Aly’s own essay, which puts the one-sided advocacy that has largely dominated media reporting of Pell’s case to shame.

The discussion of Pell’s sentence and Kidd’s reasons for it may bring another, much more fraught, public benefit. Freed of the usual tropes about whether or not the judge “got it right,” Australians are now well placed to debate whether or not the sentencing law Kidd applied is fit for purpose. Sarah Krasnostein, the author of a recent critical report on how Victorian judges sentence child sexual abuse, thinks not. “I cannot agree,” she writes in the Saturday Paper, “that ‘good character’ should be mitigating when that same good character facilitated the commission of the offence.”

She isn’t alone in questioning the High Court’s 2001 ruling. The two dissents in the case argued that “there must come a point where the ‘bad’ outweighs the ‘good’ in the sentencing process.” Seven years later, the NSW parliament barred sentencing judges from taking account of a child sex offender’s good character or lack of prior convictions if they were “of assistance to the offender in the commission of the offence.” On the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse, Victoria adopted the same rule in 2018, in time to cover Pell’s trials.

But Pell’s prosecutor, Mark Gibson, told Kidd that the new rule didn’t apply to Pell. Neither Gibson nor Kidd explained why, but it is clear that the rule is a tricky one. How can we tell if a religious leader’s abuse was “assisted” by his lack of criminal charges? Does the rule apply if the offender’s “good character” reflects things like ministering to childless adults? Or if, as in Pell’s case, his character witnesses speak to his compassion or advocacy in the decades after the abuse?

The real questions go deeper. Why should we give criminals lower sentences just because they did good at some other point in their life? Should it matter if an offender was a good worker? Or a bad or indifferent one? Was loved or respected by many? Or a friendless loner? Pulled a child from a fire? Or tried and failed? Or didn’t try? If such things do matter — say to the offender’s prospects for rehabilitation or reoffending — then why should we ignore them if they also facilitated the offender’s crime?

Australian sentencing law is full of difficult questions like these that Australian judges often strive to avoid answering. Justice Michael Kirby is a notable exception.

Back in 2001, in discussing Nield’s sentence of the priest, he asked a lot of very difficult questions. Was Judge Nield right to emphasise that the priest before him had not only sexually abused children but, in doing so, breached his vow of celibacy, sinned against his religion’s teachings and failed to fulfil his ministry? Kirby, somewhat ahead of his time, asked about the culpability of the Church itself, which — as in so many other cases — learnt of the priest’s offending at an early stage but simply shuffled him from congregation to congregation. But Kirby’s startling point was that the Church’s failings may reduce the priest’s culpability: “If, in 1975, his case had been handled more effectively, one might say, then it may be that all these later victims might have been spared and he might have, in a sense, been spared.” He even asked, as some now do, whether the demands the Church makes of all of its priests are also a factor: “in a sense, people in this position are, in part, victims themselves; that they are denied any sexual life and they are in a situation where they are in a position of temptation and it is all coming from the one source.”

To say the least, Australia was not ready for such a discussion. The priest’s various prosecutors and lawyers — three of whom are now judges, including Roy Ellis, who recently cleared Bishop Wilson of his conviction for failing to report child abuse — all declined to pursue Kirby’s points in the High Court. After Kirby and Ian Callinan nevertheless canvassed them in their judgements, they were criticised by two other justices for needlessly entering dangerous waters. The following year, Kirby found himself the victim of false claims of sexual misconduct read into the parliamentary record by senator Bill Heffernan, bolstered by selective quotes from Kirby’s ruminations about how to sentence priests.

Despite questioning whether Kirby’s thoughts could fit with either traditional legal principles or current community standards, Justice Michael McHugh agreed that the hard issue of how to sentence priests is of “great importance.” “Sooner or later,” he wrote, “it will have to be addressed by this Court.”

As everyone learnt simultaneously at 11.08am last Wednesday, Peter Kidd sentenced George Pell to imprisonment until mid February 2025. While the four-year term Kidd gave Pell for “sexually penetrating” J, the surviving choirboy, was unsurprising, the chief judge was less harsh than I expected on the other four charges of “indecent acts,” which carried the same maximum sentence. Despite their involving equally damaging (albeit different) abuse, two different victims and two separate incidents, Pell’s other four crimes added just two more years to his sentence and less than that to his non-parole period.

As Kidd explained, though, Pell’s sentence was lowered because of what he would experience in prison, not only because of notoriety — which he shares with Carl Williams and, more recently, Tony Mokbel — but also because of prisoners’ hatred of child sex offenders. To manage this, Pell would be kept in isolation and, Kidd feared, could die there. Instead, the chief judge’s mercy almost guarantees that Pell will be out on parole in late 2022 when he is eighty.

Chances are, Pell will be out earlier. His appeal against conviction will be heard in early June, although, if the High Court gets involved, his final fate may not be determined before next year. Pell may also seek (and perhaps get) bail pending his appeal. And, if all else fails, he may appeal against Kidd’s sentence. While I don’t think Pell can plausibly challenge his six-year sentence as excessive, he has one good argument to make at a sentencing appeal.

In what is rightly the most celebrated part of his remarks, Kidd rejected Pell’s argument that he should be sentenced as if he simply abused two boys he didn’t know. While the chief judge conceded that Pell had never actually met the two choirboys and was neither their priest nor “master,” he held that it wasn’t sheer chance that placed the three of them together in the sacristy that day:

Adults working at institutions no longer stand as mere strangers in relation to children who attend those institutions. This is because the institutional setting affords these adults with an opportunity to interact with children within that setting, an opportunity they would not have as a mere stranger.

Working without clear precedents, Kidd held that this institutional setting heightened Pell’s crime because it breached the trust the boys’ parents placed in the Church. In any case, he told Pell, the boys themselves trusted the Church and “you breached that trust and abused your position to facilitate this offending.”

Kidd’s analysis of the reality of the relationship between choirboys and church officials in St Patrick’s Cathedral in 1996 is, I believe, impeccable. But it is also legally vulnerable, because Kidd (who prosecuted for decades before he became chief judge of Victoria’s busiest trial court) may have overstepped the line that separates prosecutor and judge. The problem is that Pell’s prosecutor, Mark Gibson, made some important — and controversial — choices when he charged Pell with “sexual penetration of a child under sixteen,” which in 1996 carried a maximum penalty of ten years in prison. Based on J’s account, Gibson could have brought much more serious charges against Pell.

As Kidd acknowledged in his sentencing remarks, Gibson could have charged Pell with raping J, an offence that (then and now) has a maximum penalty of twenty-five years in prison. Obviously, J didn’t (and indeed couldn’t) consent to Pell placing his penis in his mouth. But Gibson chose not to bring that charge. And that means, as Kidd acknowledged, he couldn’t punish Pell for rape. Instead, Kidd followed a landmark sentencing ruling from Australia’s High Court in 1981 that required Kidd to pretend that there was no rape, even though there clearly was. In an awkward footnote that wasn’t read out on TV, Kidd explained that he would pretend that Pell was somehow unaware that J didn’t consent.

But Kidd failed to address another option that Gibson didn’t take: charging Pell with sexual penetration of a child who is under his “care, supervision or authority,” an offence that in 1996 carried a maximum penalty of fifteen years’ imprisonment. Gibson’s choice meant that Kidd was required to ignore any evidence that the two choirboys were under Pell’s “authority.” And that is difficult to square with Kidd’s statements to Pell that “the full weight of your authority and position of power must have been very obvious to your victims, and to you”; that “the brazenness of your conduct is indicative of your sense of authority and power in relation to the victims”; and that “the authority you carried within the Cathedral setting in relation to the choir boys, carried with it a significant responsibility of trust, not to do anything to the detriment of the boys.”

I can only assume that Kidd was unaware of this limit on his sentencing discretion. If he had been aware, he surely would have been at pains to distinguish his remarks about abuse of trust and position from the question of whether J was under Pell’s “care, supervision or authority.” Instead, he made it clear that this issue was a key factor in Pell’s sentence:

Your obvious status as Archbishop cast a powerful shadow over this offending. Not only do I consider that you offended in breach of your relationship of trust, and in abuse of your power and authority, I would characterise these breaches and abuses as grave. You were the Archbishop of St Patrick’s Cathedral — no less — and you sexually abused two choir boys within that Cathedral. This connection and the depth of the breaches and abuses is self-evident.

In short, Kidd punished Pell, not only as a priest — the approach Kirby questioned decades earlier — but also as an archbishop.

I think these events ought to prompt more public debate. Why didn’t Victoria’s public prosecutor charge Pell with sexually abusing a child under his authority, or with rape, exposing him to the much higher penalties Victoria’s parliament specifies for such crimes? And, if a prosecutor failed to bring charges that fit Pell’s crimes, is it right, as the High Court ruled four decades ago, that his sentencing judge should be forced to pretend that the facts of the offence are something other than he believes them to be? As well, should an offender benefit at a sentencing appeal if both prosecutor and sentencing judge fail to fulfil their respective roles? Like most sentencing questions, these are very difficult ones to answer.

For reasons I’ve argued elsewhere, I don’t think any of these questions is likely to be resolved in Pell’s case. Rather, chances are he will be acquitted altogether by Victoria’s Court of Appeal sometime this year. It would be a pity, though, if that outcome prevents full debate about the many difficult questions Pell’s case raises, questions about how to sentence priests, lowly or high, that the High Court dodged in 2001 and is yet to return to. •

The post How to sentence a priest appeared first on Inside Story.

“The way I see it at the moment,” Kidd told Pell’s counsel Robert Richter, “is that some of this publicity was designed to put improper pressure upon me.” No kidding. While the Australian media didn’t dare say anything about Pell, they desperately wanted to say something about Kidd: that the chief judge’s suppression order was ill-conceived. And they were right.

In mid 2018, Kidd banned anyone anywhere from publishing “any report of the whole or any part of” any of Pell’s child sexual abuse trials. This publication ban included what Kidd called “electronic communications,” better known as the internet. His order listed some examples of things that no one was allowed to mention: how many complaints or charges Pell was facing; what they were about; the fact that he was to face more than one trial. But the order’s actual terms covered so much more.

The media couldn’t mention any of the evidence the prosecution or defence presented at Pell’s trials, the arguments made by either side’s lawyers, any incidents in the courtroom, any decisions made by Kidd, any appeals from those decisions, any questions from the jury, any actions by court staff. Every single thing that happened in one of the most important trials in Australian history had to be top secret. Most dramatically, the entire country couldn’t be told about — or talk about — what the Daily Telegraph rightly called “THE NATION’S BIGGEST STORY”: the jury’s guilty verdict. Not until this week.

Peter Kidd has been the head of Victoria’s County Court — the Jan Brady of the state’s court system, hearing the matters that are too big for the magistrates but too small for the Supremes, especially sexual-offence cases — since 2015. Before then he had spent twenty-five years prosecuting and… prosecuting: Tony Mokbel, police killers, schoolgirl killers, war criminals. Maybe he could prosecute again? He mused about doing a “summary-type procedure” to bring Australia’s journalists to justice, allowing that he was “a little uncomfortable” acting as the media’s prosecutor, judge and jailer. “Your Honour, my preference would be for you to leave this to me,” was the diplomatic response of Victoria’s director of public prosecutions, Kerri Judd.

That was not the first or last time the chief judge has battled the press. Before Pell’s retrial, he wrote to the Age complaining that a harrowing account of a very different long-delayed sexual-assault prosecution had mentioned decisions by two judges “without any examination of their reasoning.” After journalist Richard Baker defended his report (correctly, in my view) as “factual and not critical of the judges,” Kidd complained that the Age’s subsequent apology “should have been issued following my letter to the editor.” A fortnight ago, Kidd attacked the Herald Sun for complaining (unusually) that a recent sentence had been too harsh. Having pointed out some mild errors in the details, the chief judge then went further, declaring that reporting “that omits highly relevant information, draws inappropriate comparisons and provides false information, has no benefit to the community.”

These views aren’t surprising from a judge who prosecuted during the years when Victorian courts became world leaders in suppression orders. On his appointment as chief judge, he promised he would be “a fierce advocate for judges of this court.” He kept that promise, but also a second one: “I intend to conduct trials.” As chief judge, he can decide who runs any trial, including Pell’s. He chose himself as the right judge to preside over the most high-profile trial in Victorian history.

Judge Kidd’s order was not designed, as some conspiracy theorists would have it, to protect Pell from embarrassment. Nor was it to protect the person who accused him of child sexual abuse at St Patrick’s, though his name remains suppressed and no one apart from Kidd, Pell, the lawyers and the jurors heard his testimony. Rather, his goal was to keep Pell’s first trial secret from twelve or so people: the jury in his planned second trial on totally different child sexual abuse charges.

There’s nothing unusual about an order of this kind. People are generally tried for what they are charged with doing on one occasion, not for what they may have done at other times in their lives. Ordinarily, stopping the local paper or TV station from covering the verdict in one trial until all the trials are done and dusted is an effective and unexceptionable way of keeping the trials separate. But Pell’s case is anything but ordinary.

Usually — as Kidd is wont to complain — the media, and indeed the public, has little interest in what goes on in a criminal trial. The only real story is whether or not the alleged villain is going to jail and for how long. But when famous people or crimes are prosecuted, the opposite is true. When Lindy Chamberlain, O.J. Simpson and Oscar Pistorius were tried, everyone wanted to know every detail of the evidence and events, and the media filled that public demand with blanket coverage. These cases (and their aftermaths) were also occasions for wider and very important discussions about how well the courts do their jobs and about how we should understand and talk about criminal prosecutions, all drawing on the earlier detail.

High-profile cases put the justice system itself on trial, and rightly so. How do the courts treat powerful people? Or people who complain about them? How good — or fair — are our prosecutors? Our defence lawyers? Our chief judges? Pell’s case is one of the highest-profile opportunities to debate one of the law’s toughest questions: do courts respond fairly to claims of sexual abuse? And aren’t people interested not only in whether Pell is going to jail but also in whether Australia’s highest-ranking Catholic is also its highest-ranking paedophile? Was the complaint against him believable? Was the defence compelling? Was there doubt? Or not?

This week, we are finally reading attempts to debate these issues across the media. But everything we read is written in hindsight and without the benefit of earlier public discussion. Even the longest articles compress the many weeks of Pell’s trial and retrial into just a handful of pages or paragraphs. As readers, we are wholly dependent on whatever caught the attention of the dozen or so journalists (and their editors) who sat through both trials in silence. And all the details — from Pell’s shirty responses to the police’s questions to the minutiae of his priestly robes to the arguments of famed defence lawyer Robert Richter — will be swept away in a day or two by the next story to dominate the press. Open justice delayed isn’t open justice denied, but it is open justice diminished.

Moreover, Peter Kidd’s goal in making his order, while worthy, was impossible to achieve. There is far too much interest in Pell’s case for its secrets to remain remotely secret. Yes, Australian media could be expected to obey Kidd’s order (until they didn’t), but international media are another matter altogether. As for social media, plenty of people were willing to breach Kidd’s order, out of ignorance or otherwise. I found out about Pell’s conviction hours after it happened the way many did: because his name trended on Twitter.

All the chief judge could really achieve was to keep Pell’s verdict out of the mainstream local media. In the past, that might have been enough. But today the many breaches of Kidd’s order meant that the real story was always just a web search or an overheard conversation away. Yes, the order would have assisted in finding twelve jurors willing to say that they knew nothing about the first trial or verdict. Many of them might even have been telling the truth. And some of them might somehow have refrained from googling Pell or mentioning the trial to a spouse or neighbour until the verdict was in. But what are the odds that any of them, let alone all of them, would remain spoiler-free by the trial’s end? And yet, that goal was the sole point of Kidd’s order.

We now know that, even in an imaginary world where a County Court judge could truly silence the internet, the order would still have been totally pointless. This week, all remaining charges against Pell were dropped. (If it hadn’t been for Kidd’s order, that would have been the nation’s biggest story this week.) Kidd himself ruled last week that the prosecution could not try to prove charges that Pell molested kids at a Ballarat swimming pool by relying on a separate, uncharged alleged incident at a lake. Apparently, that ruling was enough for prosecutor Fran Dalziel to drop the case altogether.

Kidd’s ruling on the evidence could have been made weeks ago. Indeed, DPP Kerri Judd asked the chief judge to do so at the very hearing where he slammed the media. His response? “No, it’s just impossible. I’m not here for a period in January and nothing will change that,” noting that Pell’s retrial (after his first jury hung) had thrown out his schedule. No doubt the judge deserved a break, but his delay (and his seeming refusal to let another judge hear the next trial) meant that his suppression order continued for weeks longer than necessary. In theory, he could have made his ruling on the evidence before Pell’s first trial began, which would have allowed it to be fully reported.

The chief judge did have room in his schedule to explain what crimes he thought Australia’s journalists might have committed. The first was that he thinks the journalists’ vague coverage may have breached his suppression order. The media, he said, “seem to be operating on a misinformed basis that it’s okay to print everything and anything apart from” Pell’s name. Kidd’s view is that you can breach his order simply by stating, as the Age (among others) did, that “a very high-profile figure was convicted on Tuesday of a serious crime.” In addition, Kidd’s view is that there is a “serious question” that journalists were committing contempt of court, “namely bringing inappropriate and improper pressure upon me to vary or revoke my suppression order application.”

These claims are adventurous ones that (once again) push at the boundaries of Victorian contempt and suppression law. Kidd was also willing to opine that “a number of very important people in the media are facing, if found guilty, the prospect of imprisonment and indeed substantial imprisonment,” words he ordered should be distributed to the media immediately. When the local media read the transcript, which included Judd musing on the possibilities of extraditing journalists, bizarrely mirroring earlier discussions about Pell himself, they all pulled their stories. Meanwhile, baffled overseas papers one by one opted to report the truth.

Now that the suppression order is gone, the media is free to report that dozens of them have received “show cause” letters from Judd, the first step in the deliberately unsettling process often used to prosecute journalists. The journalists’ lawyer claims that the letters were even sent to people who were not at work when the stories ran. I don’t blame the DPP for going over the top. Judge Kidd’s comments put her in an invidious position.

If the past is any guide, the media will apologise and the prosecutions will end without jail sentences. But I have a slim hope of a different result. Last Monday, lawyers learnt of the death of one of Victoria’s leading criminal law judges (and scourges of many a criminal), Phil Cummins. This led me to re-read one of his most celebrated judgements from two decades ago. In a literary classic of the courtroom that it is very much worth reading, Cummins narrates how a solicitor engaged a bulldozer to destroy the boundary line between his property and another that was auctioned that day. When the vendors and police arrived at the solicitor’s home with an injunction from Supreme Court Justice Barry Beach, the solicitor declared, “Justice Beach has got his hand on his dick.” Informed by the vendor’s solicitor, the Supreme Court’s chief clerk initiated a hearing on contempt of court.

Fatefully, the judge who was assigned to hear the charge was Phil Cummins. While Cummins made his contempt of the solicitor very clear, his judgement in the case was a model of wisdom. He observed that the solicitor “interrupted but did not prevent oral service upon him of the Court process. He then complied with it.” Cummins famously opined, “It may be offensive, but it is not contempt of court, for a person to describe a judge as a wanker.”

Cummins is right. Everyone has to obey the law but absolutely no one has to like it. And no one should ever be punished for saying exactly that, using whatever words he or she considers best. •

The post Pell’s freeze is over appeared first on Inside Story.

One of Mokbel’s team of barristers must have felt a little conflicted by these arguments. Ten days earlier, she had herself signed on as a police informant and was already giving her handlers information about Mokbel and his associates. “If this gets out,” she told them at the time, “say nice things at my eulogy, because I will be gone — and enjoy the royal commission.” She must have been heartened when the Supreme Court largely rejected Mokbel’s arguments. Over the next three years, she went on to meet her handlers daily, keeping them apprised of Mokbel’s planned tactics during the trial (while formally defending him) and his later plans to avoid extradition from Greece (when he thought she was providing him with free legal advice).

Lately, Ashton, who is now the chief commissioner, has had much less success making similar arguments. Since his 2015 promotion, he has spent his entire term trying to suppress a report by the state’s anti-corruption commission into the police’s use of the barrister, whom the media had dubbed Lawyer X. Last month, his final defeat was dispensed by Australia’s top court, clearing the way for Victoria’s top prosecutor to send the report to some twenty affected criminals, including Mokbel. True to Lawyer X’s prediction thirteen years earlier, this disclosure swiftly prompted a royal commission. Thankfully, there have been no eulogies for her to date, but the professional days of those who approved the barrister’s role as an informant, including Ashton himself, are clearly numbered.

The stakes are much higher than the careers of Victoria’s senior police or even the lives of the barrister and her two young children. For starters, it is certain that some of the state’s most significant criminal convictions, including Mokbel’s, will be re-examined and, most likely, overturned. Still more seriously, the royal commission will surely need to grapple with the question of how both the Bar and, especially, Victoria Police went so dramatically awry in this case (and perhaps others). The fact that both Ashton and former commissioner Simon Overland, who reportedly championed the informer’s role, both came to Victoria from the Australian Federal Police may draw the latter’s integrity into question. Both police forces are long overdue for the sort of root-and-branch inquiries into governance and culture that occurred in Queensland in the late 1980s and New South Wales in the mid 1990s.

If it were up to me, the recriminations wouldn’t stop there. I’m with Ashton, who told the media last week that he “hoped that the context in which these events occurred is not forgotten.” He had in mind Melbourne’s “gangland wars” early last decade, which he labelled a “desperate and dangerous time” where “a genuine sense of urgency was enveloping the criminal justice system, including police.” His reference to the wider “system” is key. While there is no reason to think that the courts or parliament knew of the police’s use of Lawyer X until this decade, they both played an ignoble part in allowing the Victorian public’s understandable “sense of urgency” in the mid 2000s to develop into something far more dangerous.

The High Court’s judgement on Lawyer X is a slim affair. Procedurally, it merely signalled the seven judges’ belief — reversing an earlier decision by two of them — that the fight between Victoria’s police and prosecutors was worth the court’s time. But the judgement makes up for brevity in vehemence. The justices dish out verbal blows to Lawyer X herself (questioning not only her “appalling” ethics but even her care for her children) and Victoria Police (“reprehensible,” “atrocious” and unfaithful!). Their sharpest line has a broader target: “the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system.” Corrupted! Debased! These carefully chosen words signal that the hard-fought drug trafficking convictions of Mokbel and his associates are already as good as gone.

The court’s anger had been clear a few weeks earlier, during another high-profile case, when five judges took the extraordinary step of permanently ending four prosecutions arising from Australia’s worst bribery scandal. Victorian courts had found that, in their eagerness to prove the allegation that executives of a Reserve Bank subsidiary had bribed foreign officials into adopting the bank’s plastic currency, Australia’s two top investigative agencies had hopelessly blurred their distinct roles. In particular, the Australian Crime Commission illegally lent its most powerful tool — its Star Chamber powers allowing anyone to be forced to confess all on pain of criminal punishment — to the Australian Federal Police and wrongly allowed prosecutors to reap the rewards. The High Court overruled Victoria’s Court of Appeal, which refused to stay the prosecution, declaring that investigators must not be allowed to think that they can violate both the law and suspects’ rights “confident in the knowledge that this court would wave through the results.”

Alas, the High Court’s approach differed in the past. In the “desperate and dangerous times” of the early 2000s, Victorian police detectives, frustrated with criminal suspects’ refusal to talk to them, devised a complex scam in which they pretended to be fellow criminals running a lucrative gang that required a full confession as the price for joining (much like the legal profession Lawyer X joined). When that alone didn’t prompt admissions of serious crimes, the police added new twists to the scenario: real officers would offer fake evidence of the suspect’s guilt, which the pretend criminals would then offer to make go away through their corrupt contacts in the force. Not one of the scheme’s targets expressed the slightest surprise that Victorian police officers would either fit them up or corruptly clear them.

Neither prosecutors nor courts stopped the police’s scheme. As the gangland war heated up, Victoria’s Supreme Court judges repeatedly allowed prosecutors to present admissions gathered from the sting, while holding their noses at some of the details. Later, halfway through Lawyer X’s double dealings, the High Court waved the confessions through, holding that “no corruption of the legal system took place” and that excluding the confessions would reward criminals for trusting gangsters and corrupt police. Their sole “cautionary note” was that such operations carry the risk of “seduction of the officers.” Just one Australian judge dissented. Justice Michael Kirby wrote:

The state is a great teacher in society. If it sets debased standards for itself, there is a risk that such standards will proliferate and result in a lowering of confidence in the state and its officials and of respect for the rule of law.

Again, the word “debased” was no accident, and neither was Kirby’s reference to the role of the state. In prohibition-era America, Justice Louis Brandeis, dissenting while the US Supreme Court waved through evidence federal agents had found using illegal wiretaps, famously called the government “the potent, the omnipresent teacher.” (Four decades later, the same court reversed its earlier ruling.)

What lessons have Australia’s top courts taught this past decade? Is it okay for police to trick a young suspect into confessing by deliberately leaving out the second half of the official caution (“anything you say may be given in evidence”)? Sure, said chief justice Murray Gleeson and justice Dyson Heydon, because “every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute.” Is it okay for police to supply a young suspect with a hand-picked “youth liaison officer” who was willing to pass on anything he said to his investigators? Sure, said justice Virginia Bell, because that’s no different to someone confessing all to his or her mother. Is it okay for Australian police to gather admissions from a man while he was being held and tortured in Pakistan? No, Victorian judges (eventually) ruled, but the Commonwealth director of public prosecutions could still prosecute him by using an ABC interview he gave shortly after an earlier judge allowed the prosecution to use his Pakistan admissions to convict him.

The courts’ rulings sometimes vary. Late in 2011, the High Court stopped the prosecution of the Solomon Islands attorney-general for alleged child sex offences because Australian officials connived in his illegal deportation. A few weeks earlier, Victoria’s Court of Appeal permitted the state’s trial judges to toss out evidence because of Victoria Police’s widespread practice of obtaining search warrants without actually swearing (that is, orally declaring) the truth of the affidavits they presented to magistrates. But when Tony Mokbel responded by seeking to withdraw his guilty pleas to drug offences because the evidence against him was founded on illegal warrants obtained by anti-drug and anti-gangland taskforce officers, Victoria’s parliament hurriedly stepped in. Within hours of a Supreme Court ruling on Mokbel’s application — which justice Simon Whelan said that he would have rejected anyway — parliament rushed through retrospective legislation validating over a decade’s worth of invalid search warrants.

Attorney-general Robert Clark said parliament wasn’t excusing the police’s failings, only remedying all their “grave” consequences. Victoria Police could scarcely have missed the lesson: the courts or, failing them, parliament could be counted on to make good any and all of their mistakes and misdeeds on the way to ending the gangland war. It was during this period that Victoria Police first acknowledged that its handling of Lawyer X may have been an error.

Although rumours of Lawyer X’s double dealings eventually spread throughout the police, legal, media and criminal communities, the wider public knew almost nothing about them until last week. Victorians should be well used to this situation. For half a decade or more, court orders barred local media from reporting on the gangland war or its legal aftermath, with the aim of ensuring that dozens of individual jury trials could be held with each jury supposedly oblivious of the rest. The nadir of this “don’t mention the war” phase was when the courts banished the first season of Underbelly from Victorian screens, rejecting even the airing of its first three episodes (which were confined to the 1990s), despite Mokbel being unnamed and even actor Robert Mammone’s face being pixelated.

More recently, it has been the war between police and prosecutors over Lawyer X that no one could mention. For the past two years, the courts insisted that the chief commissioner be called AB and the director of public prosecutions CD, while Lawyer X was EF. When the case reached the High Court, the registrar omitted it altogether from the court’s official monthly bulletin and took the (probably) unprecedented step of holding a full hearing before all seven judges in total secrecy, omitting even the alphabet soup from its court list. The court’s dramatic judgement was itself kept hidden for nearly a month, postponing the resulting controversy from three weeks before Victoria’s state election to one week after. Lawyer X’s name remains unspeakable until at least next year, and the more detailed lower-court judgements in the case keep appearing and disappearing from internet repositories without explanation.

Given its courts’ reputation for suppressing anything and everything, the fact that all of this has happened in Victoria is no surprise. No one questions the importance of the orders’ purpose — fair hearings for alleged criminals and protecting the lives of Lawyer X and her kids — but their effects are another matter. Only the courts seem to believe that their lengthy ban on discussing the gangland war somehow caused Victorian juries to forget the war’s events and the criminal records of its participants. Indeed, the ban on Underbelly guaranteed widespread interest in the show, which was estimated to have reached a quarter of the population in the form of unpixellated bootlegs of the DVDs. Likewise, thanks to what is said (and never denied) to be the leaking of Lawyer X’s identity to the media in 2014 — simultaneously the greatest scandal of the Lawyer X story and the main reason we know about it — her informing has been widely known to her clients for years.

The courts reveal the pointlessness of their own orders whenever they are asked to consider the consequences of their own failure to suppress any secrets. When he ruled on yet another attempt by Mokbel to avoid prosecution in 2009, justice Stephen Kaye decided that the showing of Underbelly came at no great cost to Mokbel because the series portrayed everyone — including his alleged murder victim, Lewis Moran, and the anonymous chief prosecution witness in his trial — in a negative light. Anyway, he opined, media coverage rarely stays focused on anything and much of the publicity Mokbel received was due to his flight from justice three years earlier. More recently, Victoria’s courts were likewise sceptical of the risks of publishing Lawyer X’s identity to criminals who everyone agreed already knew about it. The judges were rightly dubious about claims by Victoria Police that gangland criminals would be loath to execute an alleged double agent until officials confirmed her role. Indeed, why would Mokbel and others try to kill her at all, given that she is now their latest and best chance for freedom?

While suppression orders are often ineffective at achieving their stated goal of keeping dangerous secrets from jurors or criminals, they are effective at keeping them off newspapers’ front pages. And that means that police officers contemplating improper deeds can rest assured that any significant consequences — in the form of the detailed media investigations of their role that prompt governments to order official inquiries — will be many years, perhaps decades down the track. By that time, the police can claim, as Ashton did last week, that the problems revealed are from a past era about which the proper lessons have been learnt. Never mind that Ashton himself was at the centre of those past scandals and was promoted in 2015, without his role being known, to a position that allowed him to fight to keep it secret.

Very occasionally, the courts reflect on their own role in the debasing of society. Justice Kaye, while hearing evidence from Mokbel’s lawyers about the publicity in his case, was shocked to learn that the Supreme Court itself was displaying an article detailing the defendant’s background outside its ceremonial courtroom, as part of an exhibition titled “Ned Kelly to Underbelly.” Kaye reflected that “it is appropriate that I note that the lapse from the high standards, by which our society has traditionally protected the presumption of innocence, has become so endemic, that an instance of it occurred in the building in which this court seeks to uphold the fundamental rights of the citizen.” But like so many of his fellow Victorian judges, Kaye drew precisely the wrong lesson from these events. In performing their role as “the great teacher,” Victoria’s courts have never been consistent, much less effective. Rather than being potent and omnipresent, their lessons have been too little, too late and, all too often, mixed. If even judges fail to learn the right lessons, then more scandals will be inevitable. •

The post Don’t mention the law appeared first on Inside Story.

Having pulled up, he opened the door to get out. At that moment, someone walked around from the back of the car and shot him in the head through the open door. A second or two later, the assailant shot him again. Many detectives regarded this second shot — the “double tap” — as a clear sign of a professional hit (though some of the same detectives later insisted that it was the sign of an amateur). No one saw the murderer, or could provide any evidence of how he arrived, where he hid, or how he departed.

Thus began a six-year investigation of the death of the most senior police officer ever to be murdered in Australia — an investigation that the government promised would be unsparing of resources and determination. It would be six years before a suspect was put before an ACT Supreme Court jury. After a six-month trial rendered farcical by the defendant’s refusal to cooperate, persistent sacking of counsel and failure to participate or cross-examine, that man was convicted of the crime. The judge, and the prosecution counsel, plainly believed that the defendant’s shenanigans were a put-on, designed to cause the trial to abort, rather than evidence of mental illness. Still insisting on his innocence, he was sentenced to life imprisonment in late 1994.

It was not until 2014, after a sequence of virtually nonstop litigation up and down the judicial system, that the accused — a public servant named David Eastman, who was said to bear a grudge against Winchester over his refusal to intervene in an assault prosecution — was released after an independent inquiry found the trial to have significantly miscarried. In particular, the inquiry found, the defence had not been shown important evidence that tended to undercut significant prosecution evidence, and especially the findings of international forensic experts. A second trial, which ended last week, acquitted Eastman of the charge nearly three decades after the murder.

Much of the key scientific evidence at the first trial — not least the evidence linking gunshot residue found at the death scene with residue found in David Eastman’s car — was comprehensively discredited, as was the witness presenting it. That witness had massively overstated his qualifications, had displayed a marked tendency to play the advocate rather than the detached expert, had failed to follow scientific protocols, and simply could not have done some of the tests he had claimed. Nor had the jury been told that he had been dismissed from the Victoria Police Forensic Science Unit for misconduct.

I remember the night of the murder well. I already knew virtually all of those who were to become players in the case (apart from the civilian witnesses), including the lawyers. I was then deputy editor of the Canberra Times, but sitting in the chair because the editor, Crispin Hull, was on leave. I had presided over the paper’s daily news conference and then returned for dinner with my family. At about 9.15pm, Peter Mayoh, a journalist given to casual monitoring of the police radio, rang to alert me to an incredible hubbub on the air and the likelihood that something big had happened in Deakin, a prosperous suburb in Canberra’s inner south. A few minutes later, he rang again to say that a cop had been shot, and it looked as if it was Col Winchester.

I decided immediately to go back to work and, by whim, drove in via Deakin, where I saw police beginning to erect barricades. By 9.45pm I was at the paper, where we hurriedly decided to undo four pages, the first of which, under the new production schedule, would contain an obituary of the murdered man. Since I had known Winchester for more than twenty years — and indeed had interviewed him only a few weeks before while sitting in for Pru Goward on the local ABC Radio morning program — that was a task I took on myself. As I began ringing senior police I knew, in those days before mobile phones and texting systems, I discovered I was well ahead of the Australian Federal Police communications network: for a number of high-ranking AFP officers, the first news of the event came from me.

Winchester, born in Captains Flat in the NSW Southern Tablelands, had started out in the Australian Capital Territory Police, where he had become a detective and later the organiser of detective training. The ACT Police, and particularly its criminal investigation division, was a tightknit group without a lot of serious crime to investigate or prevent. By 1989, it had expanded with Canberra itself, which had grown from a large country town to a city of about 250,000. Ten years earlier, the federal government had amalgamated the ACT Police with the Commonwealth Police — the force that dealt with national crimes against Commonwealth laws, such as welfare and tax fraud, and guarded Commonwealth buildings — and the criminal investigation units of the Customs Service.

The creation of the new AFP had not been popular with the local police, many of whom thought Commonwealth Police were not real cops — primarily because they had not started off on the beat or enforced the ordinary law of the land, from murder to traffic control. They called the Commonwealth Police “plastics,” and for years the tribal division and mutual resentments of the two forces poisoned effective police operations as well as personal relations at all levels within the new force. Journalists who associated with one tribe or another received generous tips about the incompetence, mismanagement and blunders of the other. I myself benefited from a good many tips about the Greek social security conspiracy case in the early 1980s.

Tribal loyalties are one thing — and Winchester never lost those — but for a smart and ambitious officer the new force provided professional opportunities, not least because the AFP aspired (as it still does) to become an elite national crime-fighting force along the lines of America’s Federal Bureau of Investigation. Winchester was only one of a number of ACT officers who grasped the opportunity, and within a few years he was directing the AFP’s national crime operations, particularly those targeting drug offences. It was not without its challenges. The AFP had undoubted jurisdiction over illegal drug importations, but its role and powers in domestic drug matters — say the growing of large-scale cannabis crops in New South Wales or Victoria — were more ambiguous. So the force tended to mount combined operations with other forces, often with a very suspicious eye, given the evidence that many state police had been corrupted by the drug lords and were sometimes tipping off about impending raids, checking the credentials of people who were in fact undercover officers, or otherwise not doing their duty.

Winchester oversaw most of these operations, and in one case became directly involved himself after being approached by a Calabrian man of dubious reputation who offered him $20,000 for turning a blind eye to a planned cannabis crop near Bungendore, not far from Canberra. Winchester pretended interest, took the money, and recorded the conversations. But he was being the clever cop, not the bent one, and the money and the recordings went into a police safe. For a while, Winchester was the liaison point between his contact and ten relatively senior players in the ’Ndrangheta organised crime outfit, in an operation disclosed to, and to an extent shared with, the NSW Police.

But he soon passed on the monitoring of what was going on to other AFP officers (all former ACT officers now in national operations). Alas, the operation never quite lived up to its promise, partly because strangers (to the ’Ndrangheta at least) stripped some of the crops, and partly because Victoria Police carried out some premature arrests once product was sent to (and intercepted in) Victoria. Eventually, the AFP and NSW Police moved in and arrested the eleven principals, including the person who believed he had successfully bribed Winchester.

That man and the other ten accused, all of whom believed that the cops had been squared at the highest levels, were pretty angry. Their case was due to start in Queanbeyan Court about a month after Winchester was shot, but it never did proceed, if only because the intermediary, who appeared to have been playing both sides against the middle, welshed on his promise to give evidence, believing that Winchester had been executed for doublecrossing the venturers. As it happened, the prosecution had not been planning to put Winchester forward as a witness in that case, but Winchester had been subpoenaed by some adventurous defence counsel in the hope that they could suggest that his leading the men on amounted to some sort of illegal entrapment.

In due course Winchester, now at assistant commissioner level, was announced as the new head of the AFP’s ordinary policing in the ACT. It was the equivalent of being commissioner of the force from which he had come, and was perhaps the more exciting because the ACT, which had been governed by federal ministers, was soon to get self-government. It would be a part of Winchester’s functions to settle the terms on which the AFP would “subcontract” AFP functions to the new territory government, how it would be paid for, and how powers and responsibilities would be split.

It was like old times week: a good many former ACT Police, including many detectives, had never shifted out of ACT functions, though most new recruits were getting their initial training in ACT matters before being transferred out to national operations. Not many established AFP officers without an ACT Police background were transferring in: the ACT part of the force was becoming more inbred and, because it was losing its best and most ambitious officers, was to a considerable degree dumbing down. But many top managers were reluctant to intervene because they feared the impact on morale among ACT officers, who were regarded as poor cousins. This tension would have a major effect on the Winchester murder investigation, and inhibit intervention against its management even when it seemed clear that things were going awry.

Within an hour of the assassination, most of the old ACT detectives had arrived on the scene. All were deeply upset by the loss of their boss, a man who had long been their mate. No one was doing much detecting or taking charge, and scene-of-crime officers, trying to clear the area so as to preserve any evidence, were told rudely to piss off. Outside lighting was ordered, but from the water police rather than the scientific squad. Some of those present were drunk. A number opened the car door and leaned over the dead body; the Victorian scientific expert plonked his fingerprints on the roof beside the door. The two most senior officers at the scene, commander Lloyd Worthy and superintendent Ric Ninness, both Winchester protégés from the early 1970s, presided over the grief and the emotion and drama from beside the car door and near the body. Someone who was there told me that when, much later, he saw the wake scene in the American TV series The Wire, it all came back to mind.

Strictly, the murder was an offence against ACT, not Commonwealth, law and therefore sat within the jurisdiction of the ACT branch of the AFP. For comity, as much as anything else, they were left in charge, even if the senior commissioner decided that there would be two separate taskforces: one to investigate any evidence suggesting that the murder was the work of organised crime, and the other, under ACT detectives with ultimate authority over the national investigation, to look at local motives and suspects.

As it happened, detectives decided within an hour of the murder to look at the movements of a former detective who had left the ACT force in an orgy of recrimination against his old friends and colleagues, and violence against his wife. This man, now an alcoholic and sometime taxi driver, was soon located, and had an excellent alibi. He was subsequently to be a very good source on some of the dirty secrets of ACT policing.

In the immediate aftermath of the death, it was widely assumed to be a hit by an organised crime organisation, and probably the ’Ndrangheta. But other theories were being discussed, including the possibility that it could have been the work of a cop, whether of the AFP or elsewhere. On the day of the funeral, I saw most of the AFP’s ACT detectives peel off and stand in a circle outside the side door of St Christopher’s Cathedral. I walked down there myself, as did the former detective with a grudge against his mates. Most were lost in thought, but one grunted at me and asked what I thought. If I were investigating, I said, I wouldn’t neglect to consider the possibility that it was one of the people in the ring in front of me. A couple of the detectives nodded, and they knew I was not referring to the black sheep. (I no longer believe the rogue cop theory.)

Soon after, one of the most senior officers present was to become the subject of allegations on Four Corners. Though he was cleared, he was removed from the investigation. For me, the extraordinary thing about the program was not what was said about his personal behaviour — the nub of the report — but the disclosure that the detective had unwisely and unprofessionally removed Winchester’s keys from his suit in the immediate aftermath of the murder and travelled alone to police HQ to search Winchester’s office looking for possible clues.

That was to be only one of many irregularities in the case. Few arose from malice or from any intention to frame an innocent suspect; a good many arose from ignorance and arrogance, and some from a bullying mentality and a pronounced aversion to any form of accountability. And others arose from tunnel vision or confirmation bias: the tendency to seize on any evidence which tends to support one’s theory, while ignoring or discounting anything that didn’t.

It’s important to remember that investigating murders has never been the AFP’s long suit. As a general rule, it only gets a chance at these investigations in the ACT, because murder elsewhere falls within the province of state or territorial forces. The ACT division of the AFP has many unsolved murders on its books. The national division’s remit — whether against terrorism or drug importations, internet paedophilia or fraud on the taxpayer or the tax office — means it has little experience of common or garden crimes of violence, up to and including the taking of human life. That the ACT is generally a fairly sleepy jurisdiction, without a big underclass and with fairly low violence rates, might help explain why AFP investigations into murder so often come a cropper. It might also explain the quality of the detecting.

There would be at least five more people alive today if the AFP had been up to the task in the 1980s, the decade that culminated in Winchester’s death, the investigation of which was cocked up by some of his closest friends. In late December 1981, for example, a car ran off the Monaro Highway and into a tree, just inside the ACT. As the driver, only slightly burnt and injured, told it later, he had been blinded by the headlights of an oncoming car and had hit the tree at about seventy kilometres per hour. He was flung from the vehicle, but, worse, the car almost immediately caught on fire. He described the screaming of the two passengers, one his girlfriend, aged seventeen, and the other her sister, fourteen, who were incinerated to the point that initially their bodies could not be removed from the car.

There was a desultory attendance by a police doctor and detectives, but they readily accepted that it was an accident. It was the Christmas break, after all. Traffic police bought the story told by the “survivor” holus bolus, and prepared a report for the coroner. The ACT’s coroners have a habit of playing things passively, and the one who had a look at these reports had no obvious reason to go beyond the material gathered by police.

It was not until Allen Thompson, the man who had escaped with minor burns, shot dead the third of the Milosevic sisters, three years later, together with her husband and their two children, that the sharp eye of the cops, and a bit of a prod from the local media, recalled the two bodies in the car. An exhumation took place. X-rays revealed bullet holes in each of the skulls, as well as evidence of severe head injuries — so bad, in fact, that the pathologist could not be sure whether the girls had died of broken skulls, or rifle shots, or both. Some further follow-up discovered how cursory the initial investigation had been. Despite the movies, cars don’t much catch fire on impact, and this one hadn’t either. The girls had been burnt to char by the intense heat of a can of two-stroke oil and petrol, ignited after a low-speed collision with the three.

Allen Thompson is still serving six life sentences for murder, but it might have been only two had police, and doctors, done their job with the first murders. The incompetence and mismanagement of the affair was much noted — and even complained about by some detectives. But if there was any sort of internal AFP investigation into what went wrong, or punishment for the slackness and neglect of duty by those responsible, or search for lessons that might be avoided on future occasions, then the public was not let in on the secret.

A year or two after the deaths of the two girls, the naked body of a young woman was found in the table drain of a dirt road heading away from Canberra into the Brindabella Valley. For months, a determined police effort — extending to the preparation of anthropological likenesses of her head exhibited at the Canberra show — failed to identify her. To a number of people, she seemed to resemble a Canberra mother of three, Debra Bush, who had been reported missing some time before. But police were dismissive. First, pathologists’ examinations, in both Canberra and Sydney, had declared that the murder victim had never had children: Debra Bush was a mother of three. Second, Debra Bush was about eighteen centimetres taller than the unidentified body on the slab.

Finally, though, a witness was insistent enough that police checked. After it emerged that they had mismeasured her, more evidence revealed that the deceased was in fact Debra. A cop who was to be central to the second round of Thompson murder investigations, and later to the Winchester inquest, went to visit Ian Bush, Debra’s husband, who fairly quickly admitted having strangled her in a fit of rage after she had taunted him, he said, about an affair with another man. (There was no evidence of such an affair.) The detective tended to believe the man, who was convicted only of manslaughter and, partly because of the sympathy he seems to have inspired, was sentenced to only five years in jail. Ten months later, Ian Bush was free on licence.

While in jail, Bush had become friends with a woman he married shortly afterwards. Although a child was born, the relationship did not last long, and the woman went back to a relationship with a previous boyfriend. Then Ian Bush killed the boyfriend, and very nearly strangled his estranged wife to death.

I had begun my journalistic career in Canberra and — perhaps as a result of my editor’s sense of humour (he was well aware that I had frequently been arrested by ACT Police as a Vietnam-era protester) — I was assigned police rounds as my first job as a cadet. Later, I was a court reporter and saw many of the local officers in action in the courts. By the time of the Winchester case, I had known for many years most of the detectives who played key roles in the case. Most of my dealings with them were during the golden age in which journalists had fairly free access to police and to crime scenes, and were trusted, on their individual merits and senses of discretion, with insights into police thinking, or with information or material still being withheld from the public.

These days, police public relations apparatuses try to prevent contact between journalists and line officers, insisting that all information passes through their hands. Access and information is used for reward and punishment; and a major purpose of the system is to glorify and add to the political influence and public reputation of senior officers — or only the most senior officer, under some commissioners — and to market police generally as wonderful folk. This process creates distance between police and the community — a distance not helped by police access to new, impersonal tools of detection such as the bug, the phone tap, passive and active surveillance, and DNA testing.

Thirty years ago, scientific evidence was in its infancy, and catching criminals depended much more on finding witnesses and manually checking information, along with patience and shoe leather. And, of course, some intuition and luck.

The enormity of the Winchester murder and the resources made available to it suddenly saw a big jump in the amount of forensic evidence available. But most of the AFP detectives were hardly prepared for it. They had a scientific squad, of considerable competence if not size, but, as events were to show, little capacity to control a crime scene, to maintain continuity of possession of exhibits, or even to prevent cross-contamination of evidence. While it was the work of the Victorian “expert” that was eventually discredited, some of the assumptions of the AFP experts were also open to controversy.

Some neat work, for example, was able to show that two empty shells found trodden into the lawn (after the detectives’ orgy) had been fired by a particular gun. The gun, never located, had been test-fired at a quarry near Canberra, and shells found there matched those at the Winchester house. But no one made any effort to establish that this was the gun containing the bullets that killed Winchester. Indeed, many who have looked at the evidence suspect that another gun, probably a pistol, was used. It, too, has never been found.

The national inquiry soon gathered a good deal of intelligence showing unusual activity within the ’Ndrangheta before, during and immediately after the murder. There were reports of hitmen departing Italy, advice from Italian police and magistrates that it was almost certainly a ’Ndrangheta job, and an array of intercepts capturing a difficult-to-interpret Calabrian dialect referring to a traitor getting the bullet. Some of the evidence came from secret informants with extraordinary access to top crime figures, which was one of the reasons that the prosecution was able to secure a finding of Crown privilege over their reports.

During in-camera hearings over several days of the second Eastman trial, jurors were told some, but not all, of the national “case” and the sources of it. This was put by the defence in support of “an alternative hypothesis.” It was not, of course, Eastman’s job to prove that someone else in particular had done the murder. But showing evidence of an alternative possibility — something that had not happened at the first trial — undermined the argument that all of the evidence pointed in one direction only. If an alternative hypothesis was tenable, it could create a reasonable doubt.

Within a week of the murder, however, the lead local investigator had developed a strong hunch that Eastman was the murderer. The ACT investigation focused on this possibility, bugging his flat and instituting twenty-four-hour surveillance. Eastman was just one of a number of local “nutters” who had been marked as having clashed with Winchester, but he had attracted attention from the start when he was vague about his movements in an interview with detectives the day after the murder. It later emerged that a reason he might have been vague was that he had visited a prostitute that night. He had visited her perhaps an hour after the murder, but she thought his demeanour quite normal.

Eastman had come to police attention as a person with a fairly obvious mental disorder, given to becoming angry and threatening whenever those with whom he was dealing refused to go along with him. He was a brilliant man — on paper, far better educated and cleverer than any of the detectives — but, if he could be articulate and polite on a wide array of ordinary subjects, he was almost incapable of any sense of proportion or judgement where his own interests were concerned. He would become angry and emotional, would often make violent, abusive and extravagant threats (although he never carried them out, however much he might frighten the objects of his ire) and was astonishingly persistent. There were nights when he was ringing and abusing fifty different people, generally journalists and bureaucrats. His notoriety, and the fear and loathing this had excited, were to work against him. I remember writing at the conclusion of the trial in 1994 that the case against him had not been established, and that it was possible that a serious miscarriage of justice had occurred. “You could be right,” the secretary of a Commonwealth department rang me to say. “But surely you must agree with me that even if you were, it wouldn’t be the greatest miscarriage of justice that has ever occurred?”

In the years before he became a suspect, Eastman was thought by psychiatrists to have been both schizophrenic and paranoid. When he became a suspect, detectives consulted a Sydney psychiatrist, who, on the basis of statements by others and some observations from afar, thought Eastman dangerous to others but not, as such, mentally ill. He gave police tips on how to deal with him. We still do not know how much the police tactics followed that advice, and how much was of their own invention, but the detective squad then embarked on a program of making Eastman’s life miserable in every imaginable way. The theory was that if he was harassed enough he might snap, and do or say something pointing unequivocally to his guilt.

Thus, he was openly followed, usually very closely. Those following him made constant speculations about his sexuality, suggesting homosexuality with a focus on boys. He would frequently receive harassing phone calls from detectives, often when they were drunk. One of those shown to have been involved later became commissioner of another police force. Although Eastman said he was not prepared to submit to a police interview, he was often confronted and invited to come to the station. At the 2014 inquiry, Eastman’s lawyers told of drunken abuse by Ric Ninness. Other people who had befriended Eastman — in part because police harassment had been obvious — would receive police visits warning them that they were at physical risk from him.

Eastman complained, loudly and in every quarter he could. The Canberra Times frequently reported on instances of the harassment, often with photos. But judges and magistrates gave every indication of indifference, and tended to regard Eastman’s complaints as efforts to distract from the main issues at hand. As they refused to deal with his allegations, he would become more irate, and often abusive. His lawyers would counsel him to ignore the slight, and often failed to follow his formal instructions to raise it because, in their professional judgement, that would work against him. That, in turn, would create conflict between Eastman and his counsel, leading to sackings, the need to brief more obedient lawyers and, later, further conflict. These clashes, moreover, alienated jurors, judges and observers, and, I am convinced, helped cause his conviction first time around.

In jail, he was unpopular with guards and prisoners alike, and often in isolation for his own protection. The prisons commissioner in New South Wales proclaimed his detestation of Eastman, and his public relations officer frequently put out stories about Eastman ahvong refused to undertake “dirty jobs.” Later, ACT prison authorities were sometimes more kind, even if they constantly adhered to the view that Eastman was manipulative and that taking up his cause was a sign of falling under his influence. By the time Eastman was released, aged sixty-nine and after nearly twenty years of very-hard-served porridge, he was calm, in control of himself, and slow to hate his persecutors, even as he retained a very sharp feel for the facts and the arguments. The latest trial was entirely without any outbursts; he comported himself with complete dignity.

I had long agitated for a new trial. While I was doubtful that Eastman “did it,” I always allowed for the possibility that he might have. What disturbed me was that neither the inquest nor the first trial ever got to first base in proving his guilt beyond reasonable doubt. Police intuition of guilt is not a substitute for compelling evidence. Nor does it ever justify misconduct, including harassment.

An inquest had committed Eastman for trial, having earlier concluded that there was no prima facie case against him. The new evidence, and the committal, came after the Victorian scientific expert claimed — falsely, we now know — that he could link gunshot residue from the death scene to residue in Eastman’s car. That was, we now know, simply not true. The police case also involved a degree of perverse argument. A Queanbeyan gun dealer who had sold what police claimed was the murder weapon insisted that the buyer had not been Eastman. He was interviewed again and again, but did not change his evidence. Later police decided that this man did not like police or the idea of dobbing anyone in. Ergo, he was lying, and therefore it had been Eastman who had bought the gun. This theory had been arrived at before the gun dealer died, and before police “discovered” a witness who had previously sworn that he had not seen Eastman when he had visited the dealer. During a police fishing club trip, though, this man, a friend of Col Winchester’s brother, volunteered to a detective that he had seen Eastman but had been afraid to say so, for fear that Eastman might harm him or his children.

It is sometimes suggested in murder cases that detectives have some piece of evidence, unfortunately inadmissible in court, that makes guilt plain. It has been hinted by some people since Eastman’s ultimate acquittal that both prosecution and police “know” he is really guilty. But there is no such evidence, and the most that can be advanced are some extravagant Eastman statements that prove nothing. He was not on trial for being unpleasant or difficult to deal with, and if rhetorical threats to kill are evidence of having done so, or having the intention to do so, it is very surprising there are so few dead bodies around.

It is always easy enough to adopt the cause of a middle-class citizen without an enemy. The true test of a justice system is how it treats the unpopular, the mentally ill, the inarticulate, the Aboriginal, and the person who is prickly and angry, particularly in relation to the police, but perhaps also at the court itself. It is a sorry commentary, that police and justice processes entirely failed Eastman and put many of its ordinary shortcomings in clear relief.

But there’s another worry. The murder of Winchester was an outrage. The investigation was the most extensive and intensive and expensive in history. But the prosecution failed, mostly because of failures by investigators and prosecutors. If this is what happens in a show trial, where no expense has been spared, what is the citizen to think might happen in an ordinary trial?

There are several fears beyond that. Winchester’s murder took place in another time. Almost all of the police involved have long retired, and some are dead. The AFP has new targets, not least terrorism and, at least for public relations purposes, its crusade against internet grooming. Scientific aids to detection— surveillance, access to records, and the testing of materials, DNA and fingerprints — have become far more sophisticated. The creation of a mass surveillance national security state has given police new powers for the collection of evidence, and fewer protections for the citizen; given to save us from jihadists, the new tools have promptly been deployed by police in even minor criminal investigations.

But it is wrong to think that the deficiencies of the Winchester investigation could not happen now. Its DNA still runs through the AFP — amounting almost, to mix the metaphor, to the AFP original sin. If anyone wants an example, look at the incompetent and unprofessional investigation, from the top of the AFP down, when Muhamed Haneef was accused of terrorism. Until the public, the AFP, the prosecutors and the judicial system closely review what went wrong in matters like the Eastman case, we are doomed to umpteen repeats, and quite possibly a complete collapse of confidence in the supposed guardians of law and order.

But don’t hang about waiting for such an inquiry. The AFP is the only Australian police force to have avoided external inquiry over the past forty years. Its masters know how to play politics and how to avoid accountability. For nearly three decades, they have seen no need to look again at how they managed the Winchester investigation, and have no desire to do it now. It was for this reason that the second, failed, prosecution of Eastman involved no fresh evidence and no re-examination of materials based on the latest techniques rather than those of 1994. It failed, as it deserved to do, both because of its inadequacy and because of mismanagement, incompetence and misconduct.

The AFP doesn’t do retrospection. Looking back and reviewing things is often confronting, and may involve admitting errors or facing up to an injustice. The AFP has trouble enough having an open mind at any time, but once a matter is concluded, eyes are certainly shut. Its reluctance to look back invites questions about how it faces the future. •

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In Australia’s top court, it’s a different story. All four decisions made in the High Court of Australia last month were approved by every judge who sat (even if they sometimes disagreed on the reasons). This contrast between Australia and the United States is new. The nine justices of the US Supreme Court have long divided, often sharply, in around half of their cases. Canada’s top court is the same. And, just a decade ago (and two chief justices back), so was Australia’s.

In recent years, though, the High Court has become like Britain’s top court, whose judges agree roughly three-quarters of the time. Only in about fifteen cases a year in each court does a judge disagree with the rest. Close decisions, like the five–four decisions that are common in America, now only happen here about once a year.

Many people like our newly harmonious top court. Our current chief justice, Susan Kiefel, says that she thinks the High Court’s judges should think long and hard before disagreeing with the majority: “It could just be that one is wrong.” The court reaches its decisions quickly and without rancour. Australian lawyers and law students have fewer messy rulings to deal with. But some people — I, for one — dissent.

What’s not to like about judicial agreement? Nothing at all, if the judges are judging easy cases. But the top courts in Britain, the United States, Canada and Australia usually hear only the toughest, most controversial cases. If top judges constantly reach the same decision on hard cases, we’re entitled to start wondering why.

The US Supreme Court learnt that hard lesson eight decades ago. In the 1930s, four of the court’s nine judges agreed so regularly on (often novel) constitutional challenges to the New Deal legislation that the media dubbed them “the four horsemen.” This pointed label allowed an aggrieved Franklin Delano Roosevelt to tell Americans, shortly after his thumping second election victory, that “in our courts we want a government of laws and not of men.”

Detailing the four’s shared decisions (in majority and dissent), he declared “a quiet crisis” and announced his plan to appoint extra judges “who will act as Justices” and “save our national Constitution from hardening of the judicial arteries.”

No politician will ever accuse Australia’s High Court of being a “third house” of parliament (a term FDR coined long before Malcolm Turnbull used it in a different context). Our Constitution places very few restrictions on what our parliaments can do. Indeed, the High Court only makes a couple of politically important decisions a year and the bulk of its work is made up of regular court appeals. That is why Australia’s High Court has never developed political blocs like the liberal and conservative wings of the US Supreme Court.

But Australia’s High Court has had a long and proud history of internal debate about Australian law, often propelled by particular judges — known as Great Dissenters — who routinely criticise the majority’s approach. Past examples are Sir Isaac Isaacs (the first Great Dissenter), Sir Owen Dixon (often regarded as our greatest judge) and Lionel Murphy (whose radical views became the orthodoxy when Sir Anthony Mason was chief justice). More recently, Michael Kirby and Dyson Heydon have taken on the role of “appealing to the future” with particular vigour, dissenting in up to half of their cases.

But no more. Since Heydon’s departure five years ago, the High Court has no Great Dissenters — or even middling ones. The closest thing to a regular dissenter is former solicitor-general Stephen Gageler, who has disagreed in barely one out of eight cases.

And that’s how Chief Justice Kiefel likes it. In a speech late last year, she hearkened to a time in England when judicial dissent was regarded as “a serious thing” reserved for the most important cases, lest it detract from the court’s authority. She declared that it was “perfectly proper” for “senior judges” to persuade dissenting judges to tone down their language in the name of dignity and others’ feelings. Dissents, she said, aren’t courageous and may even be cowardly if majority judges opt not to “enter the fray.”

Kiefel advises law students to pay more attention to “more mundane majority judgements” and legal commentators to stop encouraging dissenters’ “self-indulgence.” (In passing, she mentions a recent book edited by UNSW’s Andrew Lynch on Great Australian Dissents, which includes a chapter by me feting the dissenters in Lindy Chamberlain’s failed High Court appeal).

She certainly practises what she preaches. Kiefel now dissents in fewer than one in forty cases, or just one a year. It’s been more than two years since her last dissent (over the meaning of a trust deed).

The “court packing scheme” FDR proposed in 1937 never eventuated. Just as the scheme was announced, the court’s two swing voters swung behind the New Deal legislation, isolating the four horsemen. Shortly after, the bloc’s oldest member, Willis Van Devanter, retired to a Maryland farm and a freshly legislated pension. The Washington Post bid the judge a cold farewell:

Justice Van Devanter might have been called “The Great Assenter,” in contradistinction to the term “The Great Dissenter,” often applied to the late Justice Oliver Wendell Holmes. His record up until the last or present term of the court shows that of the forty-one cases in which acts of Congress were held unconstitutional, Van Devanter assented forty-one times and dissented none.

His replacement, Hugo Black, had voted for every New Deal statute as a senator.

By the Washington Post’s standards, Australia’s current High Court has three Great Assenters, each of whom has dissented in fewer than one in forty cases in the past four years. In addition to Chief Justice Kiefel, there are Justices Patrick Keane and Virginia Bell. Since the start of 2014, Bell has been the court’s Greatest Assenter, with just two dissents out of 164 decisions.

What is different about these three judges? After all, the entire current bench are a very agreeable bunch. But these three stand out in how often they agree with each other. Most pairs of judges on the court agree between 80 per cent and 90 per cent of the time. But, in the past four years, both Keane and Bell have sided with the chief justice in 97 per cent of the cases where they sat with her (and about 95 per cent of the time they sat with each other). The three reach the same decision in nine out of ten cases where they are together on the bench.

On a seven-member court with no political blocs, three judges routinely agreeing is enough to allow them to determine nearly all of the court’s orders. As a past judge, Michael McHugh, candidly admitted of his time on the bench in the 2000s:

I regard [chief justice] Murray [Gleeson] and myself as irrelevant players while we were on that court together, for the reason that [Bill] Gummow and [Ken] Hayne always seemed to come together. And they usually had Mary [Gaudron]… So, as long as those three were there, it didn’t matter what they decided, they would either pick up [Ian] Callinan or pick up [Michael] Kirby.

But that court’s power trio was much less constant than the current one — Gummow and Hayne agreed with each other in 95 per cent of cases, but with Gaudron much less.

The upshot is that a trio of current Great Assenters — Susan Kiefel, Virginia Bell and Patrick Keane — have quietly become the three most powerful judges in contemporary Australia. Indeed, they are almost certainly the most constant (and arguably therefore the most powerful) bloc of judges Australia’s High Court has ever seen. And, in a uniquely Australian twist, their bloc isn’t political, either in cause or effect.

Unlike New Deal America’s four horsemen (elderly, white, conservative), these three Great Assenters have little or nothing in common: Kiefel and Keane are both Queenslanders (and formerly on the Federal Court) but Bell is from the NSW Supreme Court. Keane and Bell are both Labor appointees; Kiefel was appointed by Coalition governments, both to the bench and as chief justice. Kiefel and Bell share no relevant characteristics at all. Unlike the horsemen, their agreement isn’t limited to constitutional cases, but applies to everything the High Court decides: criminal appeals, contract disputes, administrative challenges, whatever.

Rather than shared policy goals, the trio simply seem to have remarkably similar minds on everything. Australia’s answer to America’s sombre four horsemen (who notoriously shared a car to court to plan their judgements) is a much sunnier troika (who, coincidentally — because this is determined by seniority — always sit beside each other on the bench).

Strangely, their shared dance is relatively recent. When Kiefel and Bell first joined the court, they spent some five years disagreeing with one another (and dissenting) at the same rate as the court’s other judges. But, not long after Keane joined the bench in 2013, the pair’s rate of disagreement and dissent fell to just one decision a year and has stayed there ever since. Whether the change is mere coincidence or even conscious is impossible to know.

Is a court in which three out of seven judges routinely agree a bad thing? The arrangement certainly brings benefits. The High Court has, for instance, been enmeshed recently in several national political controversies about the same-sex marriage survey and the validity of the 2016 federal election. It has settled these disputes speedily and unanimously, avoiding both political instability and controversy. The court’s harmony on these topics is almost certainly aided by, and may have been the result of, that core alliance of three judges. The same may be true for many of the three-quarters of regular cases on which the court routinely agrees, settling hard case after hard case quickly and with little rancour or lingering questions.

But speed and stability aren’t the only measures of a top court, which must deliver wise answers to hard questions. Chief Justice Kiefel’s most famous slogan is “collegiality is not compromise,” but saying that does not make it true. The court’s last Great Dissenter, Dyson Heydon, famously disagreed, publishing a thinly veiled critique of his own bench — and especially the pairing of Gummow and Hayne — as “The Enemy Within,” a threat to judicial independence. While Heydon feared that strong judicial personalities were dominating weak ones, I suspect a less extreme explanation in the current bench: that three judges — consciously or otherwise, and whether for personal reasons or institutional ones — desire consensus above all.

Whatever the benefits or threats posed by the troika of Kiefel, Bell and Keane, they are not long-term ones. In contrast to the US Supreme Court, Australian judges must retire at seventy. That means that the current trio will be broken up in three years and all but gone in four. With them may well go a number of legal doctrines they established only by a slim margin (such as the role of proportionality in constitutional law, whether state tribunals can hear interstate disputes, and how to assess the weight of disputed evidence).

But even the short-term situation has potentially significant drawbacks. One worry I have is that Australia will largely be deprived of the independent thoughts of seven of its finest judicial minds over the better part of a decade, lost to the banality of reflex consensus, sidelined diversity and discouraged dissent. But my main concern is for ordinary litigants with cases before the nation’s highest court during this period — ranging from accused drug traffickers to private hospitals to alleged killers to restaurateurs to land councils to child abuse defendants — who have reason to worry that their disputes (and in some instances, their futures) may have been decided by a court, not of laws, but of men and women. ●

The post The Great Assenters appeared first on Inside Story.

In his new autobiography, a recently retired NSW judge explains how he came to be chosen. One day, Michael Finnane was attending “a morning tea celebration” for another judge when “Reg” — District Court chief justice Reginald Blanch — “asked me if I was prepared to be a judge.” The fifty-seven-year-old barrister “thought about it for a few days and then said yes.” A “formal offer” from state attorney-general Bob Debus followed “shortly afterwards.” Every Australian judge — from lowly magistrates to High Court justices — is selected this way, behind closed doors and without explanation.

Finnane is no fan of Dutton, criticising him in his book, The Pursuit of Justice, for attacking sitting judges. But Dutton, who routinely complains about Australia’s “lily-livered judges and magistrates,” is probably a fan of Finnane. His “public reflection” proposal is surely aimed at selecting more judges like him. In the admittedly small field of judges most Australians have ever heard of, he is far and away the most popular, courtesy of the unprecedented fifty-five-year term he imposed on teen rapist Bilal Skaf in 2002.

Finnane describes how the sentence led to rare judicial fame: a hagiography in the Daily Telegraph, an interview offer from Andrew Denton, Australia-wide talkback radio fandom and a stream of mail with messages like “Thank you Sir, you are our hero and we would like to nominate you as Australian of the Year.” (To date, the only judge to collect Australia’s top prize took the more typical route by chairing Brisbane’s 1982 Commonwealth Games.)

Finnane is no fan of how Americans choose judges — “it seems common to refer to American judges, even justices of the Supreme Court of the United States, as being Republicans or Democrats” — but he never tells his readers why Reg and Bob chose him to be a judge. Those looking for clues have a long read ahead of them, for the bulk of Finnane’s book is about his life before, after and away from the bench. He describes his Rose Bay childhood (“Life in the 1950s was very much different to what it is now”), mentions where he was when he learned that JFK had been shot (cloistered in a Melbourne seminary), and devotes chapters to his service as a military lawyer (“The Army and What It Meant to Me”) and his mission of social justice (“My Contact With Aboriginal People”).

Close readers may piece together a possible origin story for this unlikely judicial superhero. When he received his morning tea appointment, Finnane had been a member of the Australian Labor Party for thirty-three years. In his early years at least, he was a very active party member, serving on the left faction steering committee and on branch, state and federal electorate councils, and even running for the NSW party presidency in the 1970s. Although he left the party on becoming a judge — “it is important that a judge have no political ties” — he rejoined on his retirement, despite regretting its “abandonment of socialist principles.” Finnane stands as a one-man rebuttal of Dutton’s repeated assertion that Labor-appointed left-leaning judges are to blame for soft sentencing.

The ex-judge disclaims any political patronage, noting that his left faction was marginalised in New South Wales and that “my involvement in the 1990s was largely only as a branch member.” But his professional life had a political slant from the very beginning, when he joined the justice department during Jack Renshaw’s premiership. After a decade of private practice during the Askin years, he received his first public role during Neville Wran’s first term as premier, when the state attorney-general offered “a most unusual brief.” Finnane’s job was to inquire into the financial affairs of the late father of the federal primary affairs minister because the attorney-general “didn’t trust” the state’s corporate regulators.

Eventually but dramatically, Finnane accused Ian Sinclair of forging his father’s signature, forcing the son’s temporary resignation from Malcolm Fraser’s cabinet. While his inquiry was beset by leaks and condemned by the prime minister, and the prosecution against the future National Party leader soon failed, Finnane relished his public role and later “had the good fortune to be involved in many royal commissions and inquiries.” During the Wran government, he was appointed to inquiries into drugs in Griffith and local terrorism in Sydney, and he represented Barrie Unsworth’s government at the royal commission into Aboriginal deaths in custody. His final executive role was in the Wood royal commission into state police corruption, set up in the last years of John Fahey’s Liberal government and continuing well into Bob Carr’s first term.

Which brings us to Finnane’s best-known case. In the month before the Sydney Olympics, several young women were cajoled from the city’s shopping centres, schools and trains with promises of drugs or a ride, only to be taken to isolated parks or buildings and raped repeatedly by large groups of men. Eighteen-year-old Bilal Skaf (whose brother was known to one of the victims) was arrested after he was identified by two victims and DNA evidence. Finnane’s appointment to the District Court came that October and the next year he was assigned to preside over the trials of Skaf and his co-accused. “On my way to court for the first Skaf trial,” he writes, “a senior judge expressed to me the view that the only judge to do this sort of trial should be someone with a lot of experience.” At that time (shortly after 9/11 and amid the Tampa federal election campaign), Finnane “had been a judge for a little over a year.”

The new judge would spend most of the next ten months in a courtroom with a bulletproof dock in the Downing Centre, presiding over three consecutive high-profile trials. Each involved claims of gang rape, multiple charges and defendants, disputed identification and confession evidence, and concerted media scrutiny. The trials were also intensely political, and not just because of widespread claims that the rapes were racially motivated.

Two months before the first Skaf trial, Premier Carr met with NSW chief justice James Spigelman to condemn six-year sentences handed down by District Court judge Megan Latham to three teens who pleaded guilty to a different gang rape from the same period. “Nothing I do or say would ever trespass on the independence of the judiciary,” the premier assured the public, “but the fact that the chief justice undertook to meet me I think says something about community concerns.” Midway through Skaf’s second trial, the Court of Criminal Appeal pronounced Latham’s sentences “manifestly inadequate” and doubled them.

Following Skaf’s third trial and conviction, Finnane sentenced the twenty-year-old to the maximum punishment of twenty years for each rape. Allowing for other offences but also some overlap in the charges, Skaf’s total sentence came to fifty-five years, with no possibility of parole until he turned sixty. The judge issued an unusual public denial of having any conversation about the case with the premier. Six months later, Carr had his best (and last) election win.

But Skaf’s hefty sentence didn’t stick. Six weeks after Carr’s resignation from parliament, a panel of three Supreme Court judges ruled that Finnane was wrong to give Skaf the maximum sentence of twenty years because that is reserved for worse rapes, such as those of the elderly, or at knifepoint, or penetration with weapons. As well, the total sentence of fifty-five years seemed aimed at isolating the twenty-year-old from the community rather than punishing him for his crimes. The now twenty-two-year-old’s sentence was ultimately reduced to thirty-seven years and he will be eligible for parole when he is fifty.

Finnane recounts visiting Goulburn jail a decade later and encountering three of Skaf’s co-defendants, then near the end of their own sentences (like Skaf’s, reduced on appeal). The trio told him that “we are innocent; we will become bitter as a result of wasting the best part of our young lives in jail,” leaving the judge to marvel at their “great preoccupation for themselves and no concern about the plight of their victims.” But, as he acknowledges in his book, the evidence against these co-accused was much weaker than the evidence against Skaf. Indeed, they largely owed their convictions to the word of a rapist, Skaf himself, who placed them at the scene when testifying that his victims consented to sex with a group of strangers.

Finnane himself has no regrets about the Skaf trials or the sentences, writing that “my sentences imposed on members of this gang were warranted.” He adds that the appeal judges’ views must “prevail,” but the Court of Criminal Appeal later accused him of refusing to respect their views. In 2008, he was expressly chastised over his management of a trial of a man who brutally raped his ex-partner. According to the court, Finnane not only made wrong rulings about the evidence and distracting, irrelevant and incorrect remarks to the jury, but also gave the offender a sentence for his attack (some twenty-seven years) that exceeded the usual punishment for murder.

Pointing out that “it is impossible to believe that his Honour was not aware of” the appeal court’s rulings in the Skaf case, the unanimous court wrote that sentencing “should not be an idiosyncratic exercise. First instance judges are required to adhere to standards set down by this Court. His Honour would have been well advised to do so in this case.” Unlike Megan Latham, the other District Court judge to sentence the Sydney gang rapists, Finnane would never be promoted to a higher court.

Finnane’s title, The Pursuit of Justice, cleverly captures two related ideas — justice as both mission and vocation. But being a judge was never Finnane’s goal nor, it seems, his passion. He describes choosing a career in the law (albeit with a failed detour to the seminary) at age eleven after seeing The Winslow Boy. The scene that moved him came when a “dominant” barrister conducted a crucial cross-examination in front of a “rather old, worn, man who was the judge.” Admitting to “pondering for most of my working life, what it is that makes judicial life so attractive to lawyers,” he lists an odd grab bag of perks: the District Court’s broad remit, the salary and pension, the “large, usually well-appointed room for the judge,” ten weeks’ break each year and not having “to deal with fractious clients or solicitors.” “Most of all,” he adds, “when you become a judge you feel that you have got to the top of the legal profession.”

So it is no surprise that his book has very little to say about his fifteen years on the bench beyond the expected (and inexplicably early) chapter devoted to Skaf. Near the book’s end, he reveals that, shortly after his “sense of honour was reinforced by the swearing-in-ceremony,” he found that he “was quite cut off from the members of my previous floor.” The floor in question was his professional home away from home, the “Ninth Floor at Selbourne Chambers,” where he “stayed for twenty-one years, most of them happy, but eventually the happiness ceased and I left.” He explains that his subsequent isolation was due to the need for judges to “use considerable discretion about where they go to socialise” and the convention that he be addressed socially as “judge.” (“The conversation at times was quite forced.”)

Finnane’s book doesn’t discuss the last occasion he attracted public attention. In 2011, a lawyer for ex-priest Brian Spillane, then awaiting sentencing by Finnane for child sexual abuse, swore an affidavit about a conversation he’d had with the judge. At (yet another) morning tea, Finnane allegedly told the lawyer and others that “all these paedophiles… should be put on an island and starved to death” and that “they’re all guilty.” The Court of Appeal generously ruled that any “fair-minded observer” would have regarded any such remarks as merely “incautious” and “flippant.” But Finnane ultimately never got to sentence Spillane. A month before he was cleared of bias, he moved from the District Court to the Dust Disease Tribunal, where he served out his time until mandatory retirement.

Was Finnane a good judge? As he explains in his book, lawyers “do not tell you how you are going.” He does recount how “a senior barrister told me in court” that he had “a reputation for rarely being reversed on a question of law.” But he doesn’t mention a newspaper’s calculation that, in 2011 and 2012, his sentences “have been challenged thirty-one times in the Court of Criminal Appeal — more often than any other District Court judge — and the appeals have been upheld nineteen times.” The newspaper quotes an unnamed judge explaining that “once a judge has a reputation for being notoriously tough, it is much more likely that there will be an appeal,” while an unnamed barrister labels him as the type of judge who doesn’t “have a pattern and can be categorised as rogue.” In his book, Finnane candidly recounts that, after his retirement, several barristers confessed to fearing him and one told his wife that he “was cranky and difficult.” He apologises for this, adding that he “did not intend to be anything but relatively relaxed and easy to get on with.”

In bemoaning the plight of American judges, Finnane celebrates how Australian ones “cannot be removed from office merely because a radio commentator or a newspaper campaigns against them.” He probably has in mind California’s Aaron Persky, an elected judge who currently faces a popular recall after giving a six-month sentence to a nineteen-year-old who raped a semi-conscious woman behind a dumpster. This aberrantly low sentence (albeit recommended by the probation service) has few defenders, but the media has found no credible claims of a pattern of low or biased sentencing by Persky, and his defenders say that his removal will force all judges into tougher sentences.

Australian judges can’t be removed for their sentences, low or high, but that doesn’t mean they are completely free of external pressures, especially if they hope for promotion to a higher court while in office or interesting appointments once they retire. Nor are they immune from internal motivations, like gratitude to those who appointed them or the desire for attention or appreciation in office or after.

The publication of Finnane’s autobiography coincides with a tough period for Australia’s many magistrates, who decide the bulk of the nation’s sentences and lack most of the perks of higher judicial office. One week after Dutton suggested exposing prospective magistrates to public reflection, he told Ray Hadley that “people are angry about sentences where there’s a maximum eight-year penalty and people are given two months or no conviction recorded for kicking the head of a police officer, as we’ve seen in Victoria in the last couple of days.” He was referring to a teen parolee who kicked a police officer’s head at Melbourne’s Highpoint Shopping Centre. Egged on by the Police Association, the media and the police minister attacked Victoria’s summary judges for their decisions to grant him bail and probation.

A month later, undaunted, magistrate Stephen Myall reportedly deferred further charges against the teen until December to allow him to finish high school. A week later, Melbourne’s legal community mourned Myall’s sudden death, aged sixty, and sought a review of magistrates’ workplace safety in the face of high workloads and a “steady stream of confronting evidence of violence and sexual abuse.” At his funeral in Kyneton, his family and colleagues spoke of Myall’s love of being a magistrate, his lack of interest in money, his endless committee work and how “the political debate on law and order did his head in.” A solicitor friend said he “wondered why then attorney-general Rob Hulls thought a crazed, part-time lumberjack rev-head who dressed like a vagrant was an ideal person to make decisions about other people’s lives,” adding that Hulls had made “a wonderful decision.”

Finnane’s own story ends with a chapter recounting his retirement work for Sri Lanka and Tuvalu and his advocacy on fair trade coffee and climate change. “Life has enabled me to engage with many wonderful people and because of my knowledge of law, to help them,” he writes. Celebrating his healthy, friendly and large family, he concludes, “Life is good.” I certainly don’t begrudge the ex-judge his contentment in retirement, nor for that matter his successful career or his recognition of the seriousness of rape in his sentencing decisions. Yet I find his evident pride at receiving “a comment about the Skaf case and my part in it just about every week” disturbing, given the awful crimes that lie behind those words and the miserable politics that thrive on such horrors. ●

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Without access to independent sources, wire services carried the Xinhua News version of events in its entirety and even “liberal” newspapers in China simply ran the official line, without adding any detail. The facts, as presented, seemed believable, and coincided with the arrest of hundreds more Chinese and Taiwanese nationals said to be involved in online and telephone fraud in Indonesia and Cambodia. Other Pacific nations quickly registered interest in having Chinese police round up shady Chinese nationals in their countries.

But Hagar Cohen’s report on this week’s episode of Radio National’s Background Briefing makes the remarkable allegation that most of those deported weren’t hardened scam artists but teenage girls “who were brought to Fiji as sex workers.” The extent of the prostitution industry in Fiji is not a matter of contention; even the thoroughly tame Fiji Times reports that “Fiji Police are aware of local operations but seem either ignorant or quiet on the issue of Asian, mainly Chinese, prostitution which happens in a much more organised manner.”

Scams of the type described in Chinese media are also real, and other raids in China and Southeast Asia carried out alongside the Fiji operation could have been entirely genuine. But a search of images used in domestic and Chinese media reveals that hoods weren’t used to disguise the identity of suspects in those cases. In Indonesia, where Taiwanese nationals were also rounded up, they were even made to wear different coloured t-shirts according to where they had been found. There are some women in the images, but not teenage girls.

The handful of images taken of the Fijian seventy-seven before they were hooded supports Background Briefing’s claims. The lack of photos taken during the operation in Fiji, in sharp contrast to the Indonesia and Cambodia round-ups, points to the efficiency of the Fijian state in controlling the media and the message (which will be the subject of next week’s Background Briefing). But one post on the ever-scurrilous Fijileaks site a few days after the arrests suggests word is leaking out:

There goes my weekly massage at HAPPY FEET, Suva. The girls there can do a lot more than online fraud. I think I’ll find RFMF [The Republic of Fiji Military Forces] giving the massage there now.

Leaving aside whether the program’s allegations turn out to be verifiable, the question remains: why is China conducting expensive, high-profile arrests in far-off lands? Police in China are absurdly underfunded, and crime researchers paint a picture of spiralling crime rates alongside systematic falsification of crime figures. In a recent interview with the Little Red Podcast, criminologist Borge Bakken argued that 97.5 per cent of crime in the city of Guangzhou is simply not reported in the official crime statistics. One of the great ironies of these show arrests is that the Chinese police were given more power in Fiji than they usually wield in China. One of the greatest problems Chinese police face is that their forces answer to local authorities and often protect local criminals — even child kidnappers — sought by law enforcement agencies from outside their bailiwick.

Given that the average cop in China has one of the worst jobs in the world — to the point that they have shorter lives than nearly everyone else in China — why is Beijing sending a hundred of them to Fiji to sit in a plane with hooded teenage girls? The answer is in plain sight. Just as you can glean what the Communist Party of China thinks by parsing the front page of the People’s Daily, so too can insights be gleaned from the text that accompanies the Fiji arrests, which no media outlet in China has deviated from. The final paragraph reads:

A Ministry of Public Security official said that in recent years there has been an increasing incidence of telecommunications network fraud. The masses have an implacable hatred for this plague on society. The public security agencies will strike hard, strengthen international law-enforcement cooperation, continue to forcefully rectify this problem and resolutely rein in the high incidence of such crime. Above all, the police will preserve the security and legitimate rights and interests of the masses.

The message: we know this is a problem, but don’t worry, we’re doing something. We will go to the ends of the earth to track down these criminals.

A similar message is carried by officially approved pop culture. Wolf Warrior 2, which has broken every Chinese box office record, has China’s muscular security forces (in the form of one man) willingly going to the ends of the earth to ensure the safety and lawfulness of Chinese citizens abroad. The film’s trailer gives a taste — it’s Top Gun without the homoerotic tension but with foreign mercenaries, dodgy locals and corrupt Chinese as villains. If you miss it, try Netflix police drama When a Snail Falls in Love, in which Myanmar provides a similar backdrop for Chinese police heroics.

Show arrests in Fiji and elsewhere serve a domestic propaganda agenda; even the nature of the crime can be fabricated. Arrests like these ones, carried out with the host nation’s media outlets and legal system sidelined, should be treated with the same scepticism we apply to show trials. China’s police forces lack the capacity to conduct investigations based on collecting forensic evidence or eyewitness testimony. The Chinese justice system continues to rely on prolonged pretrial detention. Convictions are based on confessions extracted through torture when needed, and the acquittal rate is less than 0.1 per cent, even after a concerted campaign to stamp out wrongful convictions.

Regardless of who was sitting under those hoods, this is the justice system those on the flight from Nadi to Changchun were delivered up to. This should give pause to those who think ratifying an extradition treaty with China is a smart move. •

The post Chinese policing on show appeared first on Inside Story.

Although it was never published, the letter’s content is clear from a lengthy article published in News of the World that Sunday. The article began: “The murder trial jurors who used a ouija board before reaching their verdict held the séance after a bawdy booze-up, says the colleague who blew the whistle on them.”

The tabloid’s headline — “BOOZE, DIRTY JOKES AND THEN THE OUIJA BOARD” — somehow gave an entirely sex-free case a sexy angle. Apparently, between drinks at the bar and talk of séances at dinner, the jurors told some off-colour jokes. But that was the least of their alleged sins.

The rest of the article reported the sombre words of the juror, Adrian, who had penned the letter:

I just couldn’t live with myself. To me, this was a miscarriage of justice. I thought to myself, “This is someone’s life we’re dealing with.” I was astonished that these grown-up people had played this child’s game.

Jobless Adrian, a former factory hand, was the youngest member of the jury at the trial of Stephen Young. The tabloid even published a picture of him — a nondescript young man wearing a denim jacket — superimposed on an image of hands resting on a glass tumbler surrounded by pieces of paper.

According to News of the World, Adrian spent the weeks after the verdict “lying awake at night thinking about it” and “even dreaming about Harry Fuller,” the victim supposedly contacted in the séance. After a talk with his parents, he consulted the Citizens Advice Bureau, which advised him to “see a solicitor and think it over.” But he had trouble finding a solicitor who wanted to help him, with three of them telling the former juror they couldn’t assist (perhaps because English law seemed to say that such disclosures of what jurors said was illegal).

The tale might have ended there, but by then word of the alleged events in the hotel had reached at least eighteen people: the twelve jurors, Adrian’s parents, a volunteer at the Citizens Advice Bureau, and three solicitors. In the end, a fourth solicitor “agreed to listen” to him and was left “astonished and speechless.”

Adrian’s experiences with his jury were entirely as part of the group of twelve (or fourteen, including the two bailiffs at the hotel), he told News of the World. When talk of séances came up at dinner at the hotel where they were sequestered for a single night:

I was interested to hear what they said, but found it funny. Those who had done it before were laughing about it, but those who hadn’t were quite serious. We had a curfew of 11 pm and had to be in our rooms before then. I went ten minutes early because I’d had three pints and was a bit tipsy. Another woman had a headache and went to bed early. I didn’t get a good night’s sleep, because I’d drunk too much and felt a bit rough and the bed wasn’t too comfortable. One of the jury produced two pieces of paper and started talking about the previous night. I overheard, and at first I couldn’t believe it. They had secretly gone to one of their rooms and gone through with it.

While the Old Ship Hotel probably didn’t appreciate this review of its beds, Adrian had no doubt what the real problem was that night. As the News of the World’s headline emphasised, the evening had been anything but sober:

Everyone had a few to drink and we were laughing at the girls who had too much. There was a real holiday camp atmosphere. We really needed to relax because the trial had gone on so long. There were a couple of dirty jokes told and everyone was in a good mood.

He added: “What went wrong, I think, was that a few beers came into it and mouths started talking.”

It would be naive to think that the four jurors at the Old Ship were the first or last to secretly meet up in one of their rooms after lights out. Human nature suggests that the rule is that what happens in a juror’s hotel room stays in that hotel room. Indeed, one of the hotel-room jurors would later describe how the evening’s events ended when “we retired to our rooms and agreed not to relate what we’d done to anyone.” Had that vow been kept, the story would have ended there.

But it wasn’t:

I didn’t think anything else about ouija boards until the next morning, when it was raised again halfway through breakfast. The twelve of us on the jury and the two court bailiffs were sitting round a long table.

He just came out with it and said: “We’ve done a ouija board and got in contact with Harry and Nicola.” He said he and three female jurors went to one of their rooms. They’d had a few drinks and just decided to do it.

The two bailiffs either didn’t care or (as they later told the Court of Appeal) didn’t hear:

We should add that more than one juror admitted on affidavit to having had more drink than was good for them whilst in the hotel and to feeling the worse for it the next morning. Neither of the bailiffs, according to their affidavits, seemed to have been aware of that or of the fact that four jurors had got together in one room over an ouija board.

Adrian didn’t care at first either. He “was lost for words and couldn’t stop laughing — but I could see they were all taking this\seriously.”

As a formal matter, the Court of Appeal was investigating a murder conviction. But, given Adrian’s letter, it was the jurors themselves (or at least some of them) who were under investigation. Much like criminal suspects, they would be contacted at their homes and then questioned by a senior police officer about their conduct, which was alleged to be potentially criminal.

Indeed, jurors can be prosecuted for their trial behaviour. A startling example occurred in Canada a year after Young’s appeal. Participants in an eight-month Vancouver murder trial noticed a juror, Gillian Guess, “flip[ping] her hair and look[ing] seductive” towards one defendant. After the jury acquitted all of the accused, the police pursued their suspicions by tapping Guess’s phone, eventually discovering that the pair had been sleeping together throughout the trial. Guess was convicted of attempting to pervert the course of justice and both she and the defendant were sentenced to prison, in her case for eighteen months, even though no one claimed that she reached a false verdict. British Columbia’s highest court rejected her appeal:

That the appellant well knew what she was doing in carrying on an affair with an accused was not in accord with her duties as a juror is clear from the evidence. She was secretive about the matter and in discussions with her sister and friends she acknowledged that what was occurring was wrong. She observed that she felt “conflicted.” That, of course, precisely identifies the difficulty — she was in a position of impossible conflict. Would this conduct have a tendency to pervert or obstruct the course of justice? The answer to this question is obviously in the affirmative. The juror would be privy knowingly or unknowingly to information not possessed by other jurors and because of the emotional ties between her and the accused would be hampered in properly performing the impartial functions of a judicial officer.

The four hotel-room jurors were also (briefly) “secretive about the matter” and they acknowledged (among themselves) that they “had gone too far,” were “privy… to information” (of a sort) “not possessed by other jurors” and (in some cases) became “emotional.” So, a conviction for attempting to pervert the course of justice couldn’t be ruled out, had any of them been prosecuted. The upshot is that at least some of the jurors would indeed have been well-advised to refuse to participate in the investigation, which they were entitled to do, unless they were promised immunity from prosecution.

The Lord Chief Justice ruled that his court would cross this bridge if it came to it:

Our view is that if problems arise of that kind, we will have to deal with them as and when, but for the moment we propose to direct that affidavits should be obtained from all the jurors and from the two bailiffs, and there should be investigation of the matters contained in the letter of 18 April from solicitors to the Lewes Crown Court, only so far as the matters in that letter relate to how the allegation of the irregularity arose and how it was communicated.

He also postponed the question of the jurors themselves being asked to testify:

I think what we ought to do, so far as attendance of witnesses is concerned, is to see the affidavits when they are prepared. If those can be produced to the court, then the court can indicate which witnesses ought to attend the hearing, if any, with a view possibly to being called. If a witness cannot contribute anything, there is no point in having them all come. We should like to see the fruits of the inquiry on paper in affidavit form, and then decide which witnesses ought to attend.

As it happens, none of these contingencies arose. All the jurors agreed to be interviewed and none were either called as witnesses or charged as criminals.

The decision to ask all twelve jurors what they knew about events at the hotel was risky, as an Australian example shows. In 2014, Australia’s High Court told a lower court to investigate a note that was handed to a bailiff after a jury verdict. The note said: “I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote.” The High Court glibly forecast a simple investigation:

Any doubt or ambiguity as to the true meaning of the note might be resolved relatively easily by inquiry of the juror who made the note. An inquiry may reveal, either that the “physical coercion” referred to in the note was no more than robust debate, or that whatever pressure was described, it had, in truth, no real effect upon the decision of the juror who wrote the note… [I]t cannot be assumed that the inquiry would be “wide-ranging and intrusive… into the deliberations of the jury, [involving] the interrogation of all twelve members of the jury.”

The inquiry took the better part of two years. The lower court struggled first to locate the juror who wrote the note and then to convince (and ultimately compel) him to explain it. When the juror (who turned out to be the foreperson) finally spoke, he said that he was indeed assaulted by another juror to make him change his vote. In the end, all twelve jurors testified in person before the appeal court. Their accounts varied on all manner of details, from the sequence and length of deliberations, to how and when the foreperson left the discussion, the layout of the toilets where the assault was said to have occurred, and even whether the lead prosecutor was blind.

Ultimately, the appeal court found that there was no coercion, because there was little or no support for the foreperson’s claims of hostility in the jury room or any opportunity for such an assault in the toilets. “The shadow of injustice has been dispelled,” the court declared, and “the integrity of the verdict has been put beyond question.” Not all who read the jurors’ account of the chaotic deliberations would agree.

For all its many oddities, the ouija board case did not suffer this fate. The result of the Court of Appeal’s investigation was to broadly confirm what Adrian had told the News of the World. But that certainty meant the English court had to resolve an unprecedented question: whether a criminal defendant must receive a new trial if some of his jurors used a ouija board.

The English court that heard Stephen Young’s appeal concerning his jurors’ use of a ouija board while staying overnight in a hotel was not the first to assess the talking board’s utility. A quarter of a century earlier, in 1958, Connecticut’s Supreme Court considered a will that Helen Dow Peck, a wealthy widow “of literary knowledge and artistic tastes,” had made when she was seventy-one, fourteen years before her death. After providing for her debts and gifts to two servants, she bequeathed the remainder of her $158,000 estate as follows:

Third: I give, devise and bequeath to John Gale Forbes all the rest, residue and remainder of my estate, real, personal and mixed of whatsoever name and nature and wheresoever situated.

Fourth: If the said John Gale Forbes be deceased, I direct that my estate be liquidated in part or whole as my executors may determine and the sum be reinvested and the income applied toward the investigation of telepathy among the insane for their understanding and cure. This sum is to be known as The John Gale Forbes Memorial Fund.

Alas, the executor was unable to locate Forbes and it turned out that Peck had never actually met him:

In 1919, the testatrix had purchased a ouija board which she used with her husband. She told a friend sometime after 1940 that she played with this board and “John Gale Forbes resolved out of space.” Through the board he became her correspondent, and she believed him to exist although she had never seen him.

The Supreme Court upheld the trial court’s finding that “John Gale Forbes was an imaginary person who had never existed” and “that he was the product of a mental delusion, a monomania, which obsessed the testatrix prior to and in 1941 when she executed her will.” It ruled that Peck’s entire will, including the gifts to her servants and the memorial fund, was void, allowing her surviving nieces and nephews to claim the estate.

Rejecting the possibility of life after death certainly makes it much easier to rule on the effect of a will. Oddly, though, Stephen Young’s appeal could have been much more easily resolved if the court accepted that the four jurors really did speak with the ghost of one of Young’s alleged victims, Harry Fuller. Young’s counsel argued that the hotel-room séance was a “material irregularity” in three ways:

First, it was an attempt to acquire further evidence or information beyond the evidence in the case. Secondly or alternatively, [it] was in the nature of an experiment which, as indicated above, cannot be countenanced. Thirdly, on any view of what occurred, only a third of the jury was present, so that matters relevant to the case took place when the jurors were not together as a group.

If the hotel-room jurors actually did speak with the deceased, then each of these arguments would guarantee a new trial. The legal difficulty would be the same if the four jurors had uncovered non-paranormal messages from Harry, such as finding a note he wrote before his death hidden in an exhibit in the jury room.

The main problem in each instance is that Young’s lawyers would have had no opportunity to respond to the implications of such significant information. And the trial judge would not have been able to rule on the evidence’s admissibility or direct the jury on how it could be used. And, if they weren’t present, nor could the other eight jurors properly debate the worth of the new discoveries.

A good example of such difficulties arose four years after Young’s appeal. In a Bristol trial of charges that the defendant handled three stolen tyres, his defence was that he had purchased them recently. The jury sent the trial judge the following note:

One of the jurors is a tyre specialist. The code 088 on the tyre signifies that the tyre was manufactured in the eighth week of 1998. The defendant claims to have had the tyres in his house around this period — certainly very little time for the tyres to have gone through normal purchase before being acquired by the defendant. May we take this into consideration?

While the trial judge and counsel were debating how to respond to this question, the jury returned with a guilty verdict. The Court of Appeal said that the trial judge should have instantly declared a mistrial, holding:

It was not improper for a juror who was not a lawyer and who had specialist knowledge of circumstances forming the background to a particular case to draw upon that specialised knowledge in interpreting the evidence. However, that knowledge was not to be used as evidence but as a means of considering, weighing-up and assessing the evidence before the court.

The difference between using knowledge as evidence and using it to interpret is certainly a subtle one, but there is no doubt that drawing on Harry’s words from the afterlife would fall on the wrong side of this line.

Of course, the Court of Appeal was never going to find that the hotel-room jurors actually spoke to Harry, but neither did it find that they didn’t:

It seems to us that what matters is not whether the answers were truly from the deceased, but whether the jurors believed them to be so or whether they may have been influenced by the answers received during this exercise or experiment.

At first blush, the court’s holding that it didn’t matter either way whether the four jurors spoke with Harry Fuller makes sense. The question of whether an irregularity is “material” depends on what the jurors believe, not whether those beliefs are true or even rational. But, by removing the link between the jurors’ conduct and reality, the Court of Appeal’s approach significantly broadens what can count as an “irregularity,” allowing the jurors’ mere thoughts to overturn a conviction.

On the day after Young’s appeal was allowed, law lecturer Gary Slapper described the problem in a column in the Times:

But suppose the jurors in the hotel had sought advice from their god through prayer? Would such a course of action invalidate their decision? They would, after all, be consulting something non-corporeal and something other than the evidence in the case. The divine and “superstitious” oracles both rely on the faith of the juror.

Will the Court of Appeal be able to argue, when its reasons are eventually given, that consulting a god for guidance is permissible but that consulting any other non-corporeal entity is not allowed? The court could avoid such a quandary by saying that absolutely nothing must guide jurors other than the evidence given in court. That option, however, would prevent religious people from receiving divine guidance when many must often be in great need of it. This would be an awkward decision from judges with the courts’ motto Dieu et mon droit on a shield above them.

An American court (with “In God We Trust” on its wall) was required to make exactly that awkward decision six years earlier.

In 1986, Tom DeMille became the first person in Utah to be convicted of murdering a child in his care, based on evidence of the child’s extensive injuries before he was taken to a hospital emergency room. However, a juror later swore an affidavit that another juror told the rest that she had prayed about the case. Specifically:

that while the defendant’s attorney was giving his closing argument, she prayed, “that if said attorney made eye contact with her she would know he was telling the truth, but if he did not she would know he was not telling the truth about the defendant; that he did not make eye contact with her, so she knew said attorney was not telling the truth” concerning the defendant… Said juror… was one of the leaders, during the deliberations by the jury, of the faction seeking a speedy and early determination of guilt of the defendant.

In 1988, a majority of Utah’s Supreme Court dismissed DeMille’s appeal. They held that upholding the defendant’s complaint would amount to “implicitly… holding that it is improper for a juror to rely upon prayer, or supposed responses to prayer, during deliberations,” something they said would breach Utah’s constitutional right to freedom of conscience. Only one judge would have ordered an inquiry on the ground that:

if jurors were to agree that a verdict would be based on a “divine sign,” a ouija board answer, or some fortuitous event, such a verdict, in my judgment, would constitute a denial of due process and the right to trial by jury… The majority fails to draw a critical distinction between the legitimacy of jurors’ seeking divine assistance in accurately and dispassionately weighing the evidence and the illegitimacy of jurors’ abdicating their sworn duty to decide the case on the evidence and instead relying on some supposedly divine sign.

The difficult questions raised by such cases are not limited to spiritual matters. The problem in DeMille’s case (though not the constitutional angle) would also have arisen if the juror had come up with her theory about the defence counsel’s eye contact by reading a book on pop psychology (or, for that matter, recalling a parent’s advice, or a movie scene, or a university lecture, or her own specialist experience).

The Utah Supreme Court majority argued that personal beliefs, including irrational ones, are simply part of the jury system:

The affidavit submitted in this case does not aver facts that would disqualify any juror. At most, it suggests that one juror may have been personally influenced by her own “revelation” and that she told others of her experience as one means of persuading them to her point of view. This is certainly not an illegitimate inter-juror dynamic.

Six years later, the English Court of Appeal reached the opposite conclusion:

There is, in our view, a clear distinction between the views of one juror however strongly expressed, intended to influence others, and on the other hand revelations purporting to come from outside the jury and to be invested with some external authority however specious.

But the court did not spell out what, apart from ouija boards, could be “revelations purporting to come from outside the jury and… invested with some external authority.” Prayer? Something a juror read in a book? Or saw on TV? Or was told by a friend? Or learnt from her work?

Or simply believed for whatever reason? The closest English courts have come to examining this question was a Newcastle trial in 1998, when a juror sent the trial judge a note asking for the defendant’s date of birth, for use in determining his star sign. According to a court official, after the trial judge dismissed the juror from the panel, the juror:

stood his ground and asked why. He seemed genuinely surprised he was being removed. He had been warned by the judge, as all jurors are, to try the defendants only on the evidence put before them in court.

While the trial judge was certainly right to refuse the juror’s request for evidence that was not before the court, the juror was right to question why he was being dismissed. He surely isn’t the only juror to believe in astrology (and others will often legitimately learn the defendant’s birth date as part of the evidence). The remaining jurors acquitted the (Cancerian) defendant of violent disorder.

When dealing with people who believe in the supernatural, courts often suspect manipulation by a cynical third party. On 7 March 1930 in Buffalo, sixty-six-year-old Nancy Bowen knocked at the door of Clothilde Marchand, a woman she barely knew, and beat her to death with a hammer. She later explained that her deceased husband had spoken to her via ouija board, telling her the name of his killer and directing her to:

Go to 576 Riley Street. It’s a little house in the rear. She is short. Her hair is black with grey. It is bobbed. She has some teeth out — upper teeth. She has a police dog.

The police arrested not only Bowen but also her ouija board partner, Lila Jimerson, who was having an affair with Clothilde’s husband, Henri. After a “Trial of the Century” (one of several in the United States that decade), Bowen was imprisoned for just one year and Jimerson was acquitted completely, apparently because the public came to blame Henri Marchand, a noted sculptor (who had speedily remarried, this time to his eighteen-year-old niece) for beguiling two credulous women into disposing of his wife.

The Court of Appeal never voiced the possibility that one of the four hotel-room jurors — most obviously, foreperson Ray, the only one of the quartet to claim any prior experience using ouija boards — had used the incident to manipulate more credulous members of the panel. If there was such manipulation, its goal was not murder, but rather only a murder verdict. Of course, none of the jurors admitted convicting Young on the basis of what the ouija board said. To the contrary, the court conceded that the participants all described the incident as a “joke,” hence the prosecution’s argument:

This was, says Mr Lawson, no more than a drunken game and the court ought not to consider that it could have had any practical effect on the case. Nothing that happened, it was submitted, fell outside the scope of influences which jurors can properly bring to bear on one another.

It was the Court of Appeal’s response to that claim — a factual assertion, not a legal one — that ultimately gave Stephen Young a new trial and made his jury infamous. •

This is an edited extract from The Ouija Board Jurors: Mystery, Mischief and Misery in the Jury System, published this month by Waterside Press.

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Writing about the Class A files is difficult. It is difficult because the seventy-four files — more than 1700 kilobytes of data in PDF format — are a chaotic jumble of typed memoranda, handwritten notes, correspondence, photocopies, extracts or transcripts from records of interview (often not clearly identified), and excerpts from Hansard, the National Times and Age newspapers, and Penthouse magazine. Significant information is often tucked away in strange places, and I doubt if anyone has yet unearthed it all.

It is also difficult because much of the material, whether favourable or unfavourable to Murphy, reflects adversely on other individuals, many of them (unlike Murphy) still living. This, of course, is why the release of the Class A files was deferred until now.

Above all, it is difficult because it swamps us once again in the sensationalised nightmare of “the Murphy affair,” for which a few brief words of background are needed. On 6 February 1974, ten years before the publication in Melbourne of the “Age tapes,” the US Congress authorised a committee inquiry into whether president Richard Nixon should be impeached, thus raising the curtain on the final act of the Watergate drama. Bob Woodward and Carl Bernstein had set a new standard of investigative journalism. Ten years later, a generation of younger Australian journalists were inspired by that standard. But where Woodward and Bernstein published nothing unless it had been objectively confirmed by two independent sources, the rapparees of “the Murphy affair” seized on each new allegation, however improbable, and rushed it into print without ever pausing to consider its credibility, let alone its context. To return in 2017 to what they wrought in the mid 1980s is deeply painful.

While some of the press response in the past few days has once again been “sensational,” the sensationalism this time around is likely to be short-lived, since there is little to give it oxygen. More importantly, some of the reaction has been notably more restrained. In particular, Paul Kelly’s article in the Weekend Australian of 16–17 September was admirably balanced and objective.

For those who came in late

On 22 February 1984, Justices Murphy and Deane dissented from the High Court decision upholding the conviction of Lindy Chamberlain for the murder of her daughter Azaria. Their judgements presaged the end of a shameful history of personal demonisation. But three weeks earlier, on 2 February 1984, the publication of the “Age tapes” had begun another such history with a different target.

A Senate committee established in March that year cleared Murphy of any allegations arising from the “Age tapes,” but received a fresh allegation from Clarrie Briese, the chief stipendiary magistrate for New South Wales. A second Senate committee, established in September, heard a further allegation from Judge Paul Flannery of the NSW District Court. The Briese and Flannery allegations related to the prosecution of Murphy’s solicitor friend Morgan Ryan for conspiracy in immigration matters. Both men reported conversations with Murphy that they now saw (in the context of the “Age tapes”) as possibly intended to influence the result of the Ryan prosecution — Briese because his position might have enabled him to put pressure on the magistrate hearing the committal proceedings, and Flannery because he was the presiding judge at Ryan’s trial.

On 5 July 1985, a jury acquitted Murphy of the Flannery allegation but convicted him of the Briese allegation. On 28 April 1986, a second jury acquitted him of the Briese allegation as well, and it looked as if Murphy’s troubles were over. But on 2 May an emergency meeting between chief justice Harry Gibbs and attorney-general Lionel Bowen resulted — perhaps through a misunderstanding — in the decision that a parliamentary commission of inquiry should review all possible allegations (except those from Briese and Flannery) in order to determine once and for all whether “any conduct” by Murphy might amount to the kind of “proved misbehaviour” that would trigger his removal from the bench.

On 31 July 1986, Murphy announced that he was dying of cancer. The work of the commission was immediately halted, and its constituent statute repealed. Murphy died on 21 October 1986.

It was said at the time that the commission had assembled forty-two allegations; it now appears that there were only forty-one. It was said that the team of counsel assisting the commission had identified fourteen allegations as needing investigation; it now appears that there was a fifteenth, which had only just been identified and had not been served on the judge. For most of the remaining twenty-six allegations, counsel had decided either that what was alleged could not possibly constitute “misbehaviour” or that it was unsupported by evidence. For a few of the allegations, no decision had yet been made.

All of these decisions had been taken only by counsel assisting the commission. In their final report in September 1986 the three commissioners emphasised that they themselves had made “no findings of fact,” and had “therefore formed no conclusions or opinions whether any conduct of the Judge has been such as to amount to proved misbehaviour.”

Since most of the forty-one allegations released last week are not in fact new, their release in fact adds very little to our knowledge. I have written about many of them before, especially in my chapter in the 1987 book Lionel Murphy: A Radical Judge (edited by Jocelynne Scutt) and in an entry on “The Murphy Affair” in the Oxford Companion to the High Court of Australia. In particular, my chapter in the Scutt book includes detailed analyses or deconstructions of what are now Allegation 2 (the Lewington matter, pages 236–37), Allegation 18 (the Jegorow matter, pages 231–33), Allegation 19 (the Paris Theatre matter, page 233) and Allegation 26 (the Yuen matter, pages 230–31). In addition, the reasons why no reliable conclusions can be drawn from the illegally recorded “Age tapes” — or rather, from the transcripts of the actual tapes, which in most cases had been destroyed — are summarised on pages 233–35 by reference to the fuller analysis set out in the Report of the Royal Commission of Inquiry into Alleged Telephone Interceptions, usually known as the Stewart Report.

Accordingly, I will confine myself here to reviewing some of the material relating to three of the more disreputable characters in what is now a cast of thousands. This review deals with seven of the fourteen allegations initially listed for hearing, and eleven of the twenty-six allegations not listed for hearing. Although it is far from being a comprehensive account of the material released on 14 September, it appears to me to be a representative sample.

Morgan Ryan

The “Age tapes” came into existence because NSW police were illegally tapping Morgan Ryan’s phone; the recording of his conversations with Murphy was only an unexpected by-product. At least eight of the fourteen allegations initially selected for hearing involved the relationship with Ryan, along with at least another eight of those not so selected.

Ryan had indisputably close associations with many of Sydney’s most notorious underworld figures, notably including nightclub owner and property developer Abe Saffron; and most of the recurring allegations that Ryan himself was directly involved in criminal conspiracies were probably also accurate. The mere fact that the “Age tapes” linked the names of Ryan and Murphy was therefore enough to give rise to an appearance of guilt by association.

But Murphy’s connection with Ryan had primarily been a professional working relationship between barrister and solicitor. At his first jury trial, Murphy gave evidence that although he was frequently briefed by Ryan during the 1950s, it happened less frequently thereafter; and that after having no contact for several years, they were brought together again in 1976 by the case of Sankey v Whitlam.

In that case, the Sydney solicitor Danny Sankey brought a private prosecution against Gough Whitlam and three of his ministers (Murphy, Rex Connor and Jim Cairns) on two charges arising out of “the Khemlani loans affair”: a statutory charge and a common law charge. Ryan was the solicitor for Cairns. On 9 November 1978, a High Court bench (not including Murphy or Barwick) unanimously held that the statutory charge had no basis in law; and on 16 February 1979, a magistrate found that there was “no case to answer” on the remaining common law charge. The conversations between Ryan and Murphy supposedly reproduced in the “Age tapes” took place primarily in the aftermath of that prosecution.

One of the allegations selected for hearing came directly out of that context: Allegation 20 was said to involve discussions of possible vengeance against David Rofe QC, who had acted as Sankey’s counsel. It was alleged that on 31 March 1979, and again on 7 February 1980, Murphy “did urge or encourage Morgan Ryan to cause harm to David Rofe.” Yet the Stewart Report had dismissed the conversations “as not being of any significance,” as had the Director of Public Prosecutions. Counsel assisting the parliamentary commission conceded that in fact the conversations “are vague”:

It may be that they can be construed as an attempt by the judge to instigate Ryan to bring about some misadventure to Rofe QC. The conversations can certainly be seen as “unseemly.” As they stand, however, it does not seem that they are capable of amounting to misbehaviour in and of themselves.

Three other allegations involving Ryan were also listed for hearing. Two of them involved incidents said to have happened after repeated questions in the NSW parliament about Ryan’s involvement in illegal immigration, and also in an alleged agreement with Murray Farquhar (Briese’s predecessor as chief stipendiary magistrate) for summary trial and lenient sentencing in a drug case (“the Cessna-Milner case”). Allegation 24 was that Murphy, in a conversation with Ryan’s wife, had said that Ryan should have an MP announce in the NSW parliament that he had made inquiries about Ryan and that Ryan had come up “smelling like a rose.” As to this, the commission’s counsel were sceptical: if such a suggestion was in fact made, it might have been “no more than a joke.” In any event, it “does not seem to us to be capable of amounting to misbehaviour in the relevant sense.” It was listed for hearing only because it “could conceivably be the subject of cross-examination.”

Allegation 23 was that Murphy had agreed to arrange a meeting between Ryan and an MP, Milton Morris, at which Ryan would ask Morris to intervene with the leader of the opposition, John Mason, asking Mason not to continue his attacks on Ryan. Ryan apparently hoped to put pressure on Morris by threatening him with exposure of his involvement in a tax avoidance scheme. Counsel were sceptical of this story, too: “It is plain that the judge has not aided and abetted, counselled or procured the commission of the offence of blackmail. Nor has he entered into any conspiracy with Morgan Ryan in relation to it.”

This allegation was listed for hearing primarily because Sergeant Paul Egge (one of the police responsible for tapping Ryan’s phone) had offered an explanation “which, if accepted, would implicate the judge in some form of conspiracy to commit blackmail, or at the least put him in the position of being an aider and abetter.” Yet counsel also noted that the Stewart Report had drawn “an adverse inference against the veracity of Egge in regard to this matter” and had also found that in fact “there was nothing whatever to blackmail Milton Morris about.”

Allegation 40, which was also listed for hearing, would have sought to challenge Murphy’s account of his relationship with Ryan by proving that the relationship was in fact much closer, and accordingly that in his evidence to the jury Murphy had been guilty of perjury. It is clear, however, that the attempt to establish a closer relationship was to depend on what might happen at a hearing: that is, on the possibility of eliciting damaging answers from Murphy by questioning him about allegations that were not themselves supported by sufficient evidence to warrant their selection for hearing.

For example, Allegation 4 was not to be listed for hearing; but because it involved trade in narcotics, the asking of questions about it might potentially have been used to suggest a connection not only with Ryan, but also with Saffron. The allegation was that Murphy, as attorney-general, had given favourable treatment to Ryan’s client Ramon Sala, who had been convicted of money smuggling and trafficking in narcotics. On conviction, the court had imposed a fine and ordered that Sala be deported. But after the fine was paid he was still in jail, and Ryan sent a telegram to the attorney-general’s department asking for his prompt release. After consulting the Customs service (who wanted Sala deported) and the Commonwealth Police (who wanted him detained), Murphy ordered not only that Sala be deported but that his French passport be returned to him (although the passport was now known to be false).

Allegation 4 was not listed for hearing, partly because it had been exhaustively explored at Murphy’s first jury trial, with no significant result. In any event, Murphy’s decision was clearly within his power under the Migration Act 1958, and reflected his consistently “strong concern” that people should not be kept in prison for longer than necessary. Counsel made it clear that, at least in this instance, any suggestion of a possible connection with Saffron should be dismissed as “remote.”

Allegation 19 concerned the transcript of a phone call on 20 March 1979, in which Murphy apparently insisted on reading Ryan a passage from a story about the Paris Theatre in that morning’s Sydney Morning Herald. He insisted that the story was “important” and that Ryan “should know” about it. In fact, as I pointed out in the Scutt book (page 233), what Murphy was insisting that Ryan “should know” was that Jim Cairns and Junie Morosi were seeking to use the theatre for a series of public lectures and screenings. It was therefore “obvious” (I wrote) “why Murphy was interested in the story, and why he thought that Ryan ought to be aware of it also.” But an account of the incident in the National Times on 20 September 1985 made no mention of Cairns or Morosi, and instead suggested that Murphy and Ryan were jointly engaged in a dubious real estate venture.

Nothing in the released material suggests any awareness that the conversation was actually concerned with the latest activities of Cairns and Morosi. It appears to have been interpreted rather as a possible reference to corporate interests associated with Saffron. Nevertheless, the allegation was not to be listed for hearing, since it was “impossible to spell… out of the alleged conversation” any “allegation of criminal behaviour or other misconduct which would be capable of amounting to misbehaviour.” Here again, the proposal that Murphy be questioned on this story was intended to elicit evidence of Murphy’s association with Ryan, and possibly also with Saffron.

Abe Saffron

Much of the more sensational media coverage of “the Murphy affair” over the years has sought to link Murphy’s name to that of Saffron, and three of the allegations selected for hearing are dependent on such a link. Allegation 25 would have sought to establish that Murphy (in response to a request from Ryan) made approaches to “persons in a position to influence” the decision, attempting to secure a contract for the remodelling of Sydney’s Central Railway Station for a company possibly owned by Saffron, or at least having his nephew as a member. Allegation 27 would have sought to establish that Murphy (again in a response to a request from Ryan) made approaches to Neville Wran on behalf of Saffron, attempting to secure a lease of Luna Park to a company possibly owned by Saffron, or at least having his son as a member. Allegation 11 would have sought to establish (apparently on the basis of a statement given by James McCartney Anderson, himself a notorious underworld figure whose testimony was hardly reliable) that, early in the Sankey prosecution, Murphy agreed with Ryan and Saffron that Saffron would try to persuade Sankey to withdraw the prosecution (presumably by intimidation).

In addition, Allegation 5 was that Murphy (as attorney-general) had given a direction back in 1974 that Customs surveillance of Saffron should be downgraded and that his baggage should not be searched. This last allegation, however, was not listed for hearing, since in 1984 a joint investigation by senior officers of the Customs service, the Australian Federal Police and the attorney-general’s department had concluded that the decision to downgrade surveillance was reasonable and appropriate, and was probably made by the comptroller of Customs rather than the attorney-general.

All four of these allegations seem at first sight highly improbable. The allegation relating to Luna Park seems particularly doubtful. It was said to be based on something heard in the tap on Ryan’s phone; yet there was nothing in the transcripts of the “Age tapes” to support it, let alone any actual tape. The allegation depended primarily on oral evidence by Sergeant Paul Egge; and even he was relying on a transcript he had seen, rather than a conversation or tape he had heard. The allegation relating to Central Station also seems to have depended primarily on evidence from Egge.

And yet, if these allegations could be read in the context of a known association between Murphy and Saffron, all four of them would immediately be accepted as probable. Accordingly, and especially in the National Times when “the Murphy affair” was at its height, a great deal of effort went into attempts to establish such a connection. In part these attempts depended simply on guilt by association: if Murphy was associated with Ryan and Ryan was associated with Saffron, then Murphy must be associated with Saffron. But some of these efforts were more specific, and are now reflected in several allegations not selected for hearing.

In particular, Allegation 3 would have sought to establish “a longstanding association” between Murphy and Saffron; that they were often together; that Murphy owned 5 per cent of the shares in Saffron’s Venus Room; and that Saffron or his associate Eric Jury provided women to Murphy for sex. The allegation was not listed for hearing, in part because when a representative of the commission “asked whether any link between Saffron and His Honour had been uncovered at any time by the NSW police,” he was told that, apart from the statement by McCartney Anderson, “no link between Saffron and His Honour had come to light.” A former associate of Saffron, James West, when questioned about Saffron’s connections, had said, “Well, Murphy is a, you probably know, Murphy’s Abe’s Man, that’s for sure,” but was unable to provide further particulars.

Again, Allegation 12 would have sought to establish that, together with Ryan and/or Saffron, Murphy was involved in an organisation for the illegal immigration of Filipinos and Koreans, and especially of Filipina women. But it was not listed for hearing because no evidence to support it could be found in any of the relevant files from the immigration department, nor in any of the extensive inquiries by the NSW police into the possible involvement of Ryan or of Saffron.

Finally, there were two particularly enigmatic examples of the unhelpfulness of the “Age tapes” — again not listed for hearing, but perhaps to be used as a basis for questions attempting to establish a closer connection between Murphy and Saffron. According to the transcript of the “Age tapes” for 7 February 1980, Ryan (in a phone call to Murphy) made a number of cryptic statements:

Well don’t forget every little breeze… Every little breeze to be told. That those other it’s very simple to three, when, if ever, and how’s it going to be done… The Lush or is it going to be the three, board of three… And don’t forget those pinball machines.

Murphy made only unresponsive replies like “Yeah, OK, terrific, right.” The statements were incoherent and apparently garbled and there was nothing to put them in context; but Allegation 21 would have treated the references to the “Lush” and the “board of three” as referring to the proposal of the Lusher Inquiry into New South Wales Police Administration for the establishment of a NSW Police Board, while Allegation 22 would have treated the reference to “pinball machines” as referring to the fact that Saffron’s son Allan was seeking to obtain the exclusive rights to import a particular type of pinball machine.

Neither allegation was listed for hearing because, even if the transcript was accurate, the quoted statements “consist only of cryptic references not capable of investigation as allegations of substance.” But counsel noted that, as with Allegation 19 (the Paris Theatre allegation), if Murphy were to be cross-examined in relation to Allegation 40 then these other allegations might provide a useful basis for questions which could help to establish a closer link between Murphy and Ryan, and possibly between Murphy and Saffron.

In fact, quite apart from the fact that the only real evidence of any link between Murphy and Saffron had come from McCartney Anderson, I argued in the Scutt book (page 231) that the transcripts from the “Age tapes” had themselves made it clear that no such link existed. The basis for Allegation 26 (the Yuen matter) was the transcript of a phone call from Ryan to Saffron, in which Ryan reported a phone call he said he had received from Murphy. The allegation was not listed for hearing, partly because it was unsupported by evidence: in particular, there was no record of Murphy in fact having made such a phone call.

The gist of this allegation was that Robert Yuen, a neighbour of Murphy’s, had told him that police had raided his illegal casino despite bribes to a senior policeman; and Murphy had rung Ryan to say, in part, “this is a disgraceful turnout… who is this fellow…? … I’ve a good mind to speak to N. about it.” But it was clear that, if Murphy did make such a call, he did so indignantly: “this fellow” could only be the senior policeman allegedly accepting bribes. What was even clearer, as I wrote in the Scutt book, was that in a series of phone calls between Ryan and Saffron over the next three days:

Saffron, in particular, is struggling to interpret Justice Murphy’s intervention without any basis in knowledge or understanding of Murphy’s attitudes or personality. (“I wonder what he meant by he doesn’t like him? In which respect? We have to work that out.”) It is clear, if the transcripts are roughly accurate, that Saffron is looking for ways in which Murphy might be appeased or dissuaded from further inquiry; it is equally clear that he is doing this with no personal knowledge of Murphy at all.

Christo Moll

At the time of Murphy’s friendship with Junie Morosi, and long before her later notorious relationship with Jim Cairns, she was married to David Ditchburn. It was Morosi who introduced Murphy to his wife-to-be, Ingrid.

Ditchburn was the Australian representative for Ethiopian Airlines. In that capacity, in 1971, he appointed Ingrid Murphy as a public relations consultant for the airline. This may have brought her into contact with Mrs W.A. McKenzie (formerly Mrs Murray Quartermaine).

As attorney-general, Murphy appointed 103 civil marriage celebrants, including W.A. McKenzie, U. Quartermaine, C.M. Ditchburn, Junie Morosi… and, intriguingly, an R.G. Withers, who shared a surname and initials with the Liberal senator who led the charge against the Whitlam government throughout 1975. He also appointed David Ditchburn to an unpaid position on the Film Board of Review.

While some of these appointments were controversial at the time, the only allegation arising from any of this was Allegation 7: that Ingrid, through her position with the airline, was entitled to free travel for herself and her family, and that she and Murphy twice availed themselves of that entitlement for overseas trips. The allegation was not listed for hearing because Ingrid’s entitlements were standard practice in the airline industry, and clearly extended to her husband. “Whatever view one may take as to the propriety of a law officer accepting free or discounted travel… the facts disclosed could not… amount to misbehaviour.”

But Ingrid’s contact with Mrs McKenzie may have brought her within the ambit of Mrs McKenzie’s former husband, Murray Quartermaine, and thus within the ambit of his former business partner Christo Moll — described in the commission’s papers as “a criminal who has fled the country and is wanted for questioning regarding matters of tax evasion, currency smuggling and diamond smuggling.”

From 1972 onwards, Moll was responsible for an elaborate scheme of tax avoidance, primarily for the benefit of medical practitioners in Western Australia. When the scheme was discovered many doctors were forced to pay large sums in additional tax, and some were driven into bankruptcy. But Moll himself had left Australia in 1982, apparently to escape a judgement against him secured (in a South African court) by his former business associate Quartermaine. In what apparently began as a plan for revenge against Quartermaine, Moll then began to forge a variety of documents, aimed first at Quartermaine himself and then at anyone within his ambit, including Ingrid and Lionel Murphy.

For example, Allegation 30 concerned a letter purportedly written by Dr Michael Tiller, a beneficiary (and ultimately a victim) of Moll’s tax avoidance scheme. The letter was addressed to Quartermaine, and said in part: “Can you arrange another meeting with Lionel Murphy as promised as you may be able to obtain his support or his advice.”

The allegation was not listed for hearing. Dr Tiller denied having written the letter, and was able to prove that he was away in Canada when the letter was written. He believed that the letter had been forged by Moll. The Australian Federal Police agreed, concluding that Moll’s animosity to Quartermaine had led him:

to cause the greatest possible mischief for him through the creation of false documents… No theory has been advanced… as to why Mr Justice Murphy and his wife may have been included in these possibly false documents other than the suggestion that he was a prominent public figure at that time.

A number of Moll’s stratagems seem to have come to the attention of the commission through Marshall Wilson and Steve Foley, formerly reporters for the Age, who had apparently met Moll in Europe in 1984. In Allegation 8, Moll told them that he had sold Ingrid Murphy a diamond, allegedly worth $7800. Apparently this was initially thought to need further investigation because it might suggest that Murphy had been given a secret commission, perhaps relating to prosecution for tax fraud. Nevertheless, the allegation was not listed for hearing. Moll had supplied the reporters with an alleged valuation of the diamond by a jeweller in Amsterdam, and also a cheque stub supposedly recording the purchase. But the cheque stub had clearly been doctored, and the Dutch jeweller insisted that invoices apparently signed by her had in fact been fabricated by Moll. Thus both documents appeared to be false, and there was “considerable doubt… whether the relevant diamond ever existed.”

Finally, Allegation 6 suggested that, in March 1975, an East German national named Jochen Zundermann had opened two safety deposit boxes in a Swiss bank, one for Murphy and Gough Whitlam and one for Murphy and Junie Morosi (who was said to hold the key to both boxes). It was also said that 400 shares in the bank (supposedly worth $700,000) had been allotted to Murphy. The timing coincided with that of the Khemlani loans affair; and if Zundermann was party to a conspiracy relating to the loans affair… and if Murphy had a deposit box in a Swiss bank… and if the box could be opened… it seems to have been thought that the box might turn out to contain evidence linking Murphy to that conspiracy. In 1976 R.J. Ellicott (as attorney-general) had in fact initiated inquiries into the loans affair, in which Zundermann’s name featured.

But this allegation also was made by Moll and had reached the commission through Wilson and Foley. They were able to produce photocopies of Swiss bank documents supposedly proving the allegation, claiming that some unknown person (presumably Moll) had left the photocopies under their hotel door. But the photocopies may have been forgeries — and whether they were first produced in 1975 by Zundermann, or more recently by Moll, everything that was known about both Moll and Zundermann appeared to make that more likely. A decision was made to ask the Swiss government whether the photocopies were genuine, but before that could be done the commission’s inquiries were terminated. ●

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When Her Honour takes her seat as Australia’s thirteenth chief justice, she will preside over a court composed of four men and three women, a balance that Justice Mary Gaudron could hardly have imagined when she was appointed in 1987 and one that would have been entirely unimaginable in 1903 when the High Court was formally established as an institution.

Nothing in the Australian constitutional framework calls for diversity in judicial appointments, but it is clear that political expediency means there is some political currency in adopting more inclusive appointment practices. But will this move disrupt the ingrained notion that judging is the preserve of men? Certainly, the level of speculation before Her Honour’s elevation suggests that the idea of a woman sitting at the peak of Australia’s judiciary was no longer as inconceivable as it once might have been.

Her appointment, in addition to marking a significant personal career milestone, certainly makes an important symbolic statement about women’s access to legal authority. It should also prompt us to take stock of how far we have come in terms of judicial diversity and to think about the path ahead. What difference might a woman chief justice make and what does this appointment mean for the politics of gender inclusion and judicial diversity?

Judicial appointments and gender diversity

Women judges have been appointed to the High Court in more recent years with what could almost be described as a degree of regularity. Yet their appointments have largely been framed as happy coincidences rather than as part of any commitment to securing a more diverse judiciary. This most recent appointment follows that trend. Despite representing an important milestone in Australia’s constitutional history (and a triumph for the politics of diversity and gender equality), it serves as a reminder that so long as our appointment processes lack transparency and fail to formally enshrine the importance of diversity, such gains will remain precarious.

The High Court of Australia has always been politically and constitutionally significant, and so too have the judges appointed to it. In legal terms, the government is largely unfettered in making these historic appointments: there are no special provisions regarding the appointment of the chief justice and – beyond specifying that justices of the High Court “shall be appointed by the governor-general in council” – the Australian Constitution provides little direction regarding appointment processes.

Slightly more guidance about the consultation process and qualification of justices is found in the High Court of Australia Act 1979 (Cth), which provide s that an appointee must be a judge or enrolled as a legal practitioner for more than five years and that the attorney-general shall consult with state attorneys-general. In practice, the Commonwealth attorney-general generally directs the process, and in most cases presents a nominee to cabinet. Should cabinet accept the nominee, the person is then formally recommended to the governor-general for appointment.

Curiously, given the breadth of power afforded to the government of the day in making judicial appointments, High Court appointments have generally been relatively uncontroversial. The absence of obvious partisan battles in Australian High Court appointments stands in contrast to, for example, the fraught confirmation processes that Supreme Court nominees are subjected to in the United States. These distinctions notwithstanding, judicial appointments cannot be anything other than political; they are made by those in possession of the highest levels of political power and they clearly have political consequences.

Appointments may be said to be explicitly political, or at least more overtly political, when the government appoints those they regard (or whom others regard) as sympathetic to their broad political outlook. Appointments from the executive are not unheard of, and the controversies surrounding the appointments of Justice Lionel Murphy and Chief Justice Garfield Barwick, to cite just two examples, have been well documented. Although there has been (albeit tongue-firmly-in-cheek) speculation about Attorney-General Brandis appointing himself, there is now probably very little taste for overtly political appointments that reinforce the less-than-absolute separation of powers.

But the lack of transparency around High Court appointments means that we know little about what informs the decision-making. We do know that certain considerations have emerged as legitimate in making appointments, whereas others have been seen as less legitimate. These legitimate considerations are imbued with certain values and assumptions about what matters in selecting our judges. An appointee’s state of origin is sometimes raised as a valid consideration, for example, whereas gender, race, sexuality, ethnicity, and even age are seen as illegitimate considerations.

The point is well illustrated by the political rhetoric that attended Justice Kiefel’s initial appointment to the High Court in 2007. As the appointment followed the appointment of Justice Susan Crennan two years earlier, a journalist noted that this was a “historic occasion” because it was the first time two women would be sitting on the bench, and asked the attorney-general whether her gender was taken into consideration. Attorney-general Philip Ruddock denied that gender was a relevant consideration in the appointment, stating that “any suggestion that this appointment was to secure two female appointments would be quite wrong.” Ruddock assured the journalists that, given Her Honour’s eminence and the fact that “she is a woman of extraordinary attainment,” this appointment, like the appointment of Justice Crennan before her, was made on the basis of merit alone:

It is a factual matter that there are five male judges and now there’ll be two female judges. But they are both people who were appointed on their merits, worthy of the appointment and a great credit to the profession.

But in response to another question relating to “her being a Queenslander replacing another Queenslander,” Ruddock did concede that he did “look at these matters.” But he was quick to play down the relevance of her state of origin by again pointing to the fact that the decision was “merits-based.”

Ruddock’s appeal to the terminology of merit suggests that the government’s strategy was to signal to its supporters that although it was appointing a woman, there was no tokenism or “progressive” or “gender” politics at play and that it could be relied on to appoint suitable candidates. Perhaps more tellingly, his remarks serve as a reminder about the breadth of the attorney-general’s discretion: we really do not know what matters he or she has considered in determining the best person for the job. It is assumed, of course, that certain matters might be taken into account (state of origin, legal expertise and judicial approach) in settling on a nominee. But nothing compels the decision-makers to consider certain matters or to communicate any details about the decision-making process.

Calls to reform High Court appointment practices to improve not only diversity, but also transparency and accountability, are certainly not new. I have argued elsewhere that reforms to the judicial appointment process – especially those designed to enhance judicial diversity by explicitly including it as a matter to be considered among others in the appointment process – will only be plausible if the relationship between merit and diversity is recast. Alluding to the subjective nature of merit, Harry Hobbs has argued that the ambit of discretionary powers afforded to Australian attorneys-general “is becoming increasingly difficult to maintain.” He explains that measures implemented by then attorney-general Robert McClelland to improve transparency in Federal Court appointments now appear to have been abandoned. Although McClelland’s reforms didn’t extend to the High Court in any case, their abandonment underscores the need to formalise reforms rather than rely on the political whims of the day.

For a brief period in 2015, following Justice Susan Crennan’s retirement (and replacement with Geoffrey Nettle), only two women were serving, but since then a near-equal gender balance has returned. At the time, Kim Rubenstein suggested that the High Court should always comprise at least 40 per cent of each gender. Emphasising the importance of a judiciary that reflects the society it serves, she made the important argument that gender should be “one of the meritorious matters that must be considered in the appointment process.”

Of course, quotas are not the only formal means of achieving diversity. As Andrew Lynch has argued, a more representative judiciary might also be achieved by adopting processes of judicial appointment that express diversity as “an aspiration underpinning those processes.” Developments in Britain, Canada, New Zealand and other jurisdictions have made explicit that certain matters (gender, race, ethnicity or linguistic background, for example) might be considered as part of the appointment process.

Attorney-General Brandis’s announcement that Justice Kiefel will be elevated to chief justice follows a familiar pattern in emphasising that this was a merit-based decision, therefore assuaging any concerns that it might have been a “gender-based appointment.” The attorney-general was keen to point out that every step Justice Kiefel has taken has been a “step that she took on merit.” When he announced her replacement, Justice James Edelman, there was curiously no retreat to the terminology of merit. Of course, His Honour’s achievements were canvassed – with some emphasis on their particularly precocious nature, given that His Honour is forty-two years old.

Justice Kiefel’s appointment is a politically astute one for the government. Given her status as the second most senior puisne judge and her contributions to the court to date, this is not a radical appointment. In addition to having already appointed more women justices to the High Court than the Labor Party have, the Coalition can now boast of having appointed the first woman chief justice of the High Court.

It is perhaps important to acknowledge, and give context to, the broad ideological differences between the Coalition and the Labor Party regarding measures to advance women’s political participation. Although both major parties’ policies concerning women and the prospects for women parliamentarians have often been problematic, it is noteworthy that the Labor Party formally supports affirmative action in preselection for women, whereas the Liberal Party does not. Of course, there are important differences between political and judicial power, and I don’t want to suggest that any appointments to the High Court have been the result of such a policy. But the politics around the legitimacy of such measures in the legislative branch is significant in that it illuminates the precarious and contested value of gender diversity.

In the current political context, notwithstanding the different views about measures to advance women in the legislative branch, there seems to be little space for a discussion about the importance or desirability of diversity in appointments at the peak of Australia’s judiciary. While we are frequently reminded that merit must be the guiding principle in making alljudicial appointments, discussions (and sometimes doubts) about an appointee’s merit are more likely to come to the fore when that appointee is a woman. This arguably reflects what appears to be a national aversion to “tokenism” or affirmative action, even when no such policy has been invoked. Those who demand that appointments be made on merit without any other consideration discount the subjective nature of merit itself. What counts as meritorious is determined by those already in positions of power and privilege; and as Margaret Thornton has argued, their claim “to produce an objective ‘best person’ is a rhetorical claim designed to maintain the judiciary as a gendered regime.”

Granted, criticism about current High Court appointment practices (and the disinclination of successive governments to consider reforms to appointment processes) needs to be tempered with the reality of what have been clear gains for women. Space had to be made for women on the highest judicial benches simply because getting women into positions of judicial authority was a departure from the overtly gendered regimes of the past. It might be countered that if this strategy is working (and the current composition of the High Court certainly points to marked progress), then there is no need to formalise any measures to secure a more diverse judiciary.

But we only need look at the experience in legislative and executive branches to know that hard-won gains in improving the representativeness of our public institutions are by no means guaranteed – they might stagnate or even go backwards. The OECD recently acknowledged that the gender balance in the Australian Senate (38.2 per cent women) is among the best in the world, but noted that the number of women in the House of Representatives has remained relatively low (26.7 per cent women). Meanwhile, the number of female federal ministers (17.2 per cent) revealed not only that Australia has made little progress in gender diversity but also that it is lagging behind other OECD countries on this indicator. These figures were compiled when Tony Abbott was prime minister and will have improved as a result of Malcolm Turnbull’s appointment of a number of women to his front bench. But they nonetheless underscore the precarious nature of gains in gender diversity – particularly when those gains rely on the actions of politicians.

Why does diversity (still) matter?

Two broad streams of argument have been used to justify the appointment of women to judicial roles – difference and equality. Arguments on the basis of difference contend that the quality of justice available will be improved because women offer something different, perhaps by “speaking in a different voice” or by bringing an “ethic of care” to the judicial role. Arguments premised on equality contend that the “principle of equity requires that women have an equal opportunity to participate in public decision-making institutions and that their absence undermines the democratic legitimacy of those bodies.”

Arguments based on principles of equality are often eager to distinguish between the need for a diverse judiciary and the need for a representative judiciary. While diversity is desirable, they contend, the notion that judicial officers should represent the interests of their gender (or class or race) is objectionable because it misconstrues the very nature and function of the judiciary as an institution that is unresponsive to political pressure.

The stakes wagered on women’s access to legal authority have been particularly high. Some feminist legal theorists hypothesised that women judges would be the panacea to law’s gender-blindness. But the arguments that women judges make a difference (in terms of their judicial approach), while appealing, have been difficult to sustain in practice. Women judges have not always been as different from men as predicted, or different in the ways that were originally envisaged.

As women began to be appointed to the judiciary in larger numbers throughout the late 1980s and early 1990s, the scope to assess women judges was expanded, not only by empirical studies but also by assessments of the publicly expressed views of women judges themselves. Some women judges in other jurisdictions have been disinclined to embrace the notion that they speak in a different voice, although others have embraced a version of difference, or even feminist judging.

With the exception of Justice Gaudron, women judges appointed to the High Court have mostly eschewed an identity as “women judges,” or at least avoided talking about the possible relationship between gender and judging. If history is any indication, it is likely that our new chief justice will follow this well-worn path.

It remains to be seen what kind of contribution Chief Justice Kiefel will make to the High Court. Her extra-curial comments indicate that the Kiefel court, like the French court before it, might be marked by consensus. Whether she evidences a growing willingness to reflect on the changing role of women and the law (like Justice Crennan before her), and the frustrations associated with the gendered ways in which her legacy might be received, will also remain to be seen.

Feminists are on safer ground premising their arguments on a need for diversity so that the judiciary is composed of individuals who are more representative of society as a whole. That is not to say that feminists have abandoned the interrogation of the gendered nature of the law. Rather, in recognition of the restraints of legal formalism, we have seen a retreat from the idea that the appointment of women judges will disrupt the masculinist nature of legal reasoning, to the idea that feminist judges might be best equipped to bring such perspectives to bear.

This is not to say that the gender or lived experienced of a judge won’t inform their decision-making in ways that reinforce the importance of diversity. (Why would we insist upon multi-member appellate courts if we didn’t accept the idea that law is a human endeavour?) Rather, it is to avoid essentialising women and conflating “woman” and “feminist.” Justifications for appointing women judges are therefore now far more commonly couched in terms of equity or representation rather than difference, because, as Kate Malleson has explained, “their persuasiveness or validity is not determined by what women do on the bench.”

Where to from here?

The gender dynamics on the High Court have thus far been carefully crafted. No woman has ever replaced another woman – lest anyone get the idea that there are seats reserved for women. Nevertheless, at least for now, the presence of women as members of the court seems secure. Assuming Chief Justice Kiefel stays on the bench until she is seventy years old, a woman will serve as chief justice until 2024. If Justice Michelle Gordon stays on the bench until her mandatory constitutionally required retirement, we are guaranteed at least one woman until 2034. United States Supreme Court Justice Ruth Bader Ginsburg’s response to queries about when there will be “enough” women judges is salutary:

So now the perception is, yes, women are here to stay. And when I’m sometimes asked when will there be enough [women on the Supreme Court], and I say, when there are nine, people are shocked. But there’d been nine men, and nobody’s ever raised a question about that.

The point is a powerful one because it reveals how normalised an all-man bench is, especially when juxtaposed against the seemingly fantastical idea of an all-woman bench. The current visibility of women on the bench makes an important symbolic statement about women’s admission to legal authority in Australia. But this appointment does not negate the need for continuing conversations about the importance of diversity or for amendments that would properly enshrine the value of diversity into the formal appointment process.

We are very fortunate that the Australian judiciary has fulfilled its role mostly with distinction and without controversy. But this good fortune should not deter us from bringing appointment practices into the twenty-first century. Appointments that undermine the homogeneity of the High Court are steps in the right direction, and disrupt the notion that judging is the preserve of men. But with no formal recognition of the importance of diversity in appointments, these steps remain at the whim of the government of the day. Diversity and merit are not mutually exclusive. Diversity can and should have a legitimate and meaningful role in appointment practices. But if the utterances of the politically powerful are to be taken at face value, diversity does not inform their decision-making processes. In fact, the lack of transparency around the process and the absence of criteria upon which these appointments are made leave us in the dark about what matters are taken into account.

Once we accept that a more diverse judiciary is a better judiciary, we are able to have important conversations about the scope and content of reforms, which might then secure a truly diverse judiciary. And then, for feminists, there might even be space to think about strategies for securing the appointment of judges who are not only aware of the importance of equality and the gendered nature of law, but also willing and able to articulate that awareness. •

This article first appeared in AUSPUBLAW, the Australian Public Law Blog.

The post Susan Kiefel and the politics of judicial diversity appeared first on Inside Story.

The dispute between Australia’s two leading law officers first surfaced on 3 June 2016, when details of the Direction were reported by Fairfax Media. Under the new provisions, no one in government could seek an opinion from the solicitor-general without the attorney-general’s written and signed consent. The explanatory statement accompanying the Direction included a claim that Brandis had consulted the solicitor-general, a claim solicitor-general Justin Gleeson strenuously denied.

The attorney-general’s backdown came in the same week as the report of the Senate Legal and Constitutional Affairs Committee on the controversy. The committee recommended that the Senate disallow the Direction and censure the attorney-general for “misleading the parliament and failing to discharge his duties… appropriately.” (Government senators delivered a strongly worded dissenting report, accusing the majority of using the inquiry to pursue “a partisan political agenda.”)

What this long and unedifying saga has revealed is that the solicitor-general’s capacity to act as a trusted, independent and authoritative legal adviser is far from guaranteed. The government must think seriously about reform to the office to reduce the damage caused by recent events, and guard against similar controversies.

Selecting the solicitor-general

To perform his or her role, the solicitor-general needs not only to be trusted by government but also to be willing and able to provide robust and independent advice. This delicate balance rests largely on the professional qualities, ethics and experience of individual solicitors-general. Any future holder of the office must be apolitical and must possess exceptional skill and integrity. To ensure that he or she has the confidence of both sides of politics, and of the public, the appointment process needs to be reformed.

This is a separate issue from the concerns that recent events might deter high-quality candidates from accepting the position. In spite of Gleeson’s treatment during his time in office – on display at its worst during the Senate committee hearing – it’s to be hoped that there are candidates prepared to serve in this important position, particularly at such a pivotal time for the office.

Encouragingly, the government has shown no indication that it intends to rush to appoint a solicitor-general whom it knows and trusts – that is, a candidate who is close to the government – and has instead advertised the role. This is an important (first) step forward: a general call for applications allows candidates not otherwise known to the attorney-general and the government to put their names forward. It widens the pool of potential appointees, and should have a positive effect on the merit – and diversity – of the appointments.

In itself, though, this is no panacea. The government must also consider adopting a more formalised, arm’s-length process of appointment, involving an independent selection panel applying a set of public criteria.

Although there have been few allegations of past appointments being made for purely political motives, the dangers of a closed appointment process are clear. At a time when suspicions of politicisation are at an all-time high, it is particularly important to adopt a more transparent, apolitical and merits-based process. A more open process can also signal to potential candidates that the government intends to act with appropriate respect for the independence and status of the solicitor-general.

Clarifying roles and accountability

Uniquely among Australia’s relevant state and federal legislation, section 12 of the Law Officers Act divides the solicitor-general’s functions in two. According to 12(a), he or she acts as legal counsel to a variety of Commonwealth bodies; according to 12(b), he or she must “furnish his or her opinion to the attorney-general on questions of law referred to him or her by the attorney-general.” By combining these two roles, the Act raises a tricky question: can the solicitor-general provide an opinion on a question of law only under the conditions set out in 12(b)? Or can he or she provide an opinion without the attorney-general’s involvement as part of the broader function of acting as counsel under 12(a)?

Justin Gleeson’s view was that section 12(b) did not limit 12(a), and that 12(b) applies only to “those cases where the attorney-general seeks the opinion of the solicitor-general, which may then stand as the opinion of the attorney-general unless he or she wishes to contradict it.” Sir Anthony Mason, former chief justice of the High Court and also the first solicitor-general appointed under the 1964 Act, is among those who have taken a similar view. Attorney-general Brandis differs: in his submission to the Senate committee, he argued that “the Act explicitly provides only one circumstance in which the solicitor-general may provide an opinion to the government on a question of law.”

These disagreements suggest that section 12 should be amended to clarify the solicitor-general’s advisory function. Arguments can be made for both positions. There is an argument that the attorney-general, as the responsible minister, should have full knowledge of, control over and accountability for the functions of the solicitor-general. On the other hand, it is important that government figures have unfettered access to the solicitor-general, and there may be matters on which senior members of government require advice that ought to be kept confidential from the attorney-general.

In practice, both viewpoints can be accommodated. In the states where the statute gives the attorney-general ultimate control over access to the solicitor-general, for example, protocols and processes have been put in place, with the prior knowledge and consent of the attorney-general, to facilitate confidential requests if they arise in future.

Clarifying how and when the solicitor-general should be briefed

During the Senate committee’s inquiry it became clear that the Commonwealth government has not always sought the solicitor-general’s advice on significant matters, or has sought further opinions if it does not agree with that advice. How can such a practice be prevented in the future?

Across Australia, it is generally accepted that governments will seek advice on significant legal issues from the solicitor-general, and that the solicitor-general’s advice will be treated as final and authoritative. This is not because the solicitor-general is an oracle, or always right. No lawyer can always be correct, or will always predict the way the High Court will decide cases.

The solicitor-general’s opinion should be treated as final and authoritative on significant legal issues for three key reasons. The first is that if a single source of advice is not identified in advance, the government could shop around for legal advice, not accepting an opinion until it finds one that supports its position. The second is that the solicitor-general is able to provide that final and authoritative legal opinion from a unique position: the advice is informed by, and can therefore be consistent with, the government’s previous legal position; the solicitor-general is afforded a level of statutory independence under the Law Officers Act; and the solicitor-general has an intimate knowledge of the High Court’s position. Finally, if the government avoids the solicitor-general, or seeks other advice once the solicitor-general’s advice has been received, this may also threaten the independence of a solicitor-general and undermine the utility of the position. Why? Because a solicitor-general faced with an opinion-shopping government may feel under pressure to tailor his or her advice according to the threat of competition.

The first step in preventing the selective use of the solicitor-general’s advice was the withdrawal of the Direction. The fact that it was withdrawn by the government rather than vetoed by the Senate goes a small way to increasing the confidence of future candidates that the government is serious about respecting the office and its role.

Second, there must now be a close review of Guidance Note 11, which governs the processes for briefing the solicitor-general, with three aims: to make clear what types of legal matters must be referred to the solicitor-general for advice; to clarify how the attorney-general is kept informed of those requests, without operating to discourage such requests (as the contentious Direction and Guidance Note may have done); and to clarify that the solicitor-general should be briefed by government either exclusively, or for the purpose of finality. In this final respect, the federal government might look to the guidelines that presently operate in Tasmania.

Clarifying the relationship with the governor-general

During the Senate committee hearing, there was some discussion as to whether the Direction would prevent the solicitor-general from providing legal advice to the governor-general without the attorney-general’s permission. Even before the contentious Direction was issued, this question was unresolved.

Most of the time, governors-general don’t act independently; rather, they implement decisions of the government (usually cabinet or the prime minister). This is appropriate because the governor-general is an appointed, not an elected, officer. But the governor-general has a small cache of powers, the “reserve powers,” that can be exercised independently from the government. This creates a real, but small, possibility that the governor-general may seek the solicitor-general’s advice on the exercise of powers that are contrary to the interests of the government of the day.

If that happens, would the governor-general have direct access to the solicitor-general? Would he or she have to first seek the government’s consent? Would the government have to approve the advice before it is given to the governor-general? Would a copy of the advice have to be provided to the government?

There is some disagreement as to the proper legal response to this question. At the federal level, the governor-general is not explicitly mentioned in section 12(a), but may fall within the reference to the “Crown in right of the Commonwealth.” But this takes us back to the question of whether 12(a) allows the solicitor-general to provide advice or simply to act as counsel in contentious matters. The uncertainty highlights the need for statutory reform and clarification.

Leaving the legislation to one side, there is a general trend across Australia to put in place processes and protocols that allow the governor-general (or the governor, in the states) to seek the advice of the solicitor-general. Anne Twomey argues that the current ad hoc practices ought to be further formalised, and that this should occur, most importantly, before any constitutional controversy arises. She argues that it is preferable that the governor-general and governors be given standing permission to access the solicitor-general on a confidential basis.

Alternatively, a senior legal adviser could be appointed to assist the governor-general. This would ensure a clear, formal and public process to provide the governor-general with a single source of technical legal advice prior to constitutional controversies arising. This option would maintain the solicitor-general as the senior legal adviser to the government should there be any conflict between it and the governor-general.

The current controversy provides the opportunity, at least at the federal level, for the relationship between the solicitor-general and the governor-general to be clarified, with future benefits for the rule of law in times of possible constitutional crisis.

Releasing the solicitor-general’s advice to parliament

Finally, the Brandis–Gleeson dispute reveals the pressing need to reform the rules about how the government uses the solicitor-general’s opinion in the parliamentary and public spheres. As I have argued elsewhere, there are good reasons why the government ought to release the solicitor-general’s advice to parliament when it is asking the parliament to act in reliance on that advice.

The government has occasionally seen the benefit of providing parliament with the solicitor-general’s advice. A recent example was the government’s release of the solicitor-general’s advice to the president of the Senate in support of its referral to the High Court regarding senator Rod Culleton’s election. But it hasn’t done so consistently. It refused, for instance, to release to parliament the solicitor-general’s advice on its proposed citizenship-stripping legislation, instead relying on summaries – which we now know may have been misleading – of the advice’s conclusion.

If the government is asking parliament to act where there is constitutional uncertainty, it ought to provide parliament with that advice so that MPs can make better-informed decisions. Doing so would also reduce the possibility of the government misrepresenting the solicitor-general’s advice – either intentionally or not – in ways that further its own political agendas. •

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Although a vast number of lawyers are involved in providing day-to-day advice within government, solicitors-general sit at the apex of this system in every Australian federal, state and territory government. Unless he or she is overruled by the courts, it is the solicitor-general who provides the final word on significant legal questions. As leading American legal ethicist David Luban has argued, “the most significant actors are not judges, not… officials more generally, but lawyers.”

The new direction, which requires that anyone in government, even the prime minister, must obtain the attorney-general’s signed consent before approaching the solicitor-general, came as a surprise to lawyers and other observers. For Cheryl Saunders, a professor of law at Melbourne University, the attorney-general’s decision signals that it is time “to clear up the respective roles” of the attorney-general and the solicitor-general. Sydney University’s Anne Twomey describes the changes as impractical.

The public’s occasional glimpse of a solicitor-general usually comes in news reports of high-profile court cases, or when governments defend controversial policies. In 2015, for instance, Brandis himself made several references to having obtained the solicitor-general’s advice in relation to the Abbott government’s controversial citizenship-stripping proposal.

When I interviewed former NT solicitor-general Thomas Pauling for my new book, The Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest, he acknowledged that a solicitor-general’s advice is sometimes used by government to counter doubts about the constitutionality or legality of its actions. Former federal attorney-general Gareth Evans told me that the solicitor-general’s advice is sometimes sought, “for the record,” to relieve political pressure. But Pauling sees dangers when a government attempts to use that advice to gain public support, relieve political pressure or cloak government actions in legal legitimacy.

A recent example involves the Gillard government, which relied heavily on its solicitor-general, Stephen Gageler, for legal credibility when it attempted to implement the “Malaysia solution” in response to the problem of unauthorised boat arrivals. When the initiative was challenged in the High Court, Gillard’s immigration minister, Chris Bowen, declared that the government was on “very strong legal grounds” and that the solicitor-general had been involved in ensuring the scheme could be strongly defended in the High Court.

None of the solicitor-general’s advice was ever released, and after the government lost in the High Court, its lawyers, and specifically the solicitor-general, came under heavy media fire. A number of top lawyers – including some involved in the challenge itself – came to Gageler’s defence, but the legal advice was still withheld. Sydney barrister Darren Ferrari surmised that the minister might have misrepresented the strength of the advice, and legal commentator Richard Ackland reported that the solicitor-general had not been involved in advising the minister on the matter prior to the High Court challenge. Rather, said Ackland, the advice had come from lawyers within the attorney-general’s department.

What those events demonstrate is that the solicitor-general has no control over how government uses or represents his or her advice (or even the lack of advice). Misrepresentation, intentional or otherwise, is possible, particularly when the political stakes are high and the legal issues are complex.

One notable exception to this general position was the course taken by former Commonwealth solicitor-general Maurice Byers at the time of the 1975 constitutional crisis. On 4 November 1975, Byers signed his name to an opinion stating that the governor-general was not entitled to dismiss the prime minister simply because the government was unable to guarantee the passage of supply bills. His advice was conveyed to the governor-general by the attorney-general on 6 November 1975. After the dismissal, it was leaked to the Australian Financial Review, which published extracts on 17 November 1975. In an unusual and unprecedented turn, the solicitor-general wrote a letter to the editor explaining that he now felt driven to speak out to remove “misunderstandings of and misstatements concerning the effect of that opinion.”

The functions of the Commonwealth solicitor-general are set out in the Law Officers Act 1964. But the office dates back much further, to almost one hundred years ago. Solicitors-general had been introduced in many of the Australian colonies in the first decades of the nineteenth century, and these had been based on the British model dating back to the thirteenth century. The traditional relationship between the attorney-general and solicitor-general in England and in the colonies was that of “first law officer” and “second law officer.” The solicitor-general was, in effect, the attorney-general’s deputy. In England, both law officers are still politically accountable government ministers.

When attorney-general (and prime minister) Billy Hughes introduced the bill that created the first federal solicitor-general in 1916, he chose a different model. Hughes’s bill created a statutorily appointed solicitor-general to assist the ministerial attorney-general. Addressing the concern that this would break the accountability between parliament and the solicitor-general, Hughes offered this reassurance:

The minister will declare the policy of the government in every case, and the solicitor-general will give effect to it. Thus ministerial discretion will remain, and ministerial responsibility will not be lessened. The government will be as much responsible for every act done by the solicitor-general as if it had been done by the attorney-general…

The man appointed to the job, Sir Robert Garran, had the job of assisting Hughes discharge his heavy legal responsibilities as attorney-general during the war.

In 1964 the Commonwealth solicitor-general was transformed from a public service position with large administrative as well as legal functions to one that had almost exclusively legal functions. Introducing this change, attorney-general Billy Snedden emphasised the importance of appointing a senior barrister to ensure that the solicitor-general continued to exercise professional independence, which would be reinforced by the tenure granted in the statute. William Gummow, then a justice of the High Court, has described the 1964 statute as giving “independence (and thus added value) [to] the office.”

If it is functioning well, Australia’s combination of a non-political solicitor-general and a highly politicised attorney-general can bring independent, impartial legal advice and legal representation for government (via the solicitor-general) while maintaining the framework of accountability and the other benefits of a politically engaged attorney-general.

During my interviews with almost fifty current and former holders of these offices, and with others who have worked closely with solicitors-general, I was often told that the role of the solicitor-general is largely dependent on three things: the individual who holds the office, the attitude of the attorney-general towards that individual and the office, and the wider political circumstances.

Each relationship between attorney-general and solicitor-general will be different. The current Commonwealth solicitor-general, Justin Gleeson, has implemented protocols designed to strengthen accountability between himself and the attorney-general. As Gleeson has explained, “Each solicitor-general and attorney-general must come to their own practical accommodation as to how much consultation and briefing is necessary to ensure that the attorney is sufficiently informed to report to parliament.”

Gleeson introduced two systems for briefing and reporting to the attorney-general. The first was a system of monthly reporting; the second involved formalising how those in government could obtain the solicitor-general’s advice. He introduced this procedure, he says, to ensure he was only providing an opinion on a matter of law where there had been a referral by the attorney-general. This is a statutory requirement under the Law Officers Act 1964, which states that while solicitors-general may directly act as counsel for a number of Commonwealth entities in contested matters, they may only provide opinions on questions of law on the referral of the attorney-general. This requirement reinforces the historical and ongoing relationship and accountability between the offices.

Under this process, Gleeson would formally notify the attorney-general of new requests for advice from other ministers or departmental officers. If the attorney-general indicated that he didn’t wish to refer the matter to the solicitor-general for an opinion, Gleeson wouldn’t provide the advice. In other words, the attorney-general had an effective veto over access to the solicitor-general. Gleeson’s intention was to provide an opinion only following a formal request. To avoid the dangers of providing advice orally, by email or in draft, he specified that all advice would be formalised as a written opinion, and the attorney-general provided with a copy.

As well as attempting to ensure that the requirements of the legislation were being met, Gleeson’s changes aimed to reduce any confusion about the existence of the solicitor-general’s legal advice and any risk that it would be misrepresented by government.

To claim that the solicitor-general performs an important rule-of-law function in advising the government on the legality of its actions assumes that the government seeks the solicitor-general’s advice on appropriate matters – that the government will not turn to sources perceived to be more accommodating, or fail to seek advice at all. But under the current statutory arrangements, officials and ministers are free to choose whether they seek the solicitor-general’s advice. Do they?

Prior to the attorney-general’s direction last month, the guidance note issued by the Commonwealth Office of Legal Services Coordination in 2013 stated that the solicitor-general must be briefed for “very important and legally difficult matters that are of particular significance to the Australian government.” A matter is “significant” if it “raises novel, difficult and important points of legal principle,” “relates to the implementation of government policy or decisions of the highest importance,” “raises issues of the highest political sensitivity,” “raises legal issues resulting in conflict between agencies” and/or “has significant financial implications or very important whole-of-government implications.”

The guidance note has been revised to correspond with the attorney-general’s May direction. It no longer spells out the type of matter that should be sent to the solicitor-general for advice. Instead, it includes the following statement: “The solicitor-general’s advocacy services, and the provision of his or her advice, are generally reserved for very important and legally difficult matters that are of exceptional significance to the Commonwealth.”

This is perplexing. A spokesperson for the attorney-general claimed that the stated intention of the May direction was to “clarify the procedure for briefing and taking advice from the solicitor-general,” and particularly the procedure for briefing the solicitor-general, and to clarify the “nature of the matters that were appropriate to be briefed to the solicitor-general.” It is not entirely clear how removing the more detailed list achieves this objective.

While even a formal protocol setting out when the solicitor-general ought to be briefed will not guarantee that appropriate matters will be sent to the solicitor-general, in most cases the system appears to operate well. In addition to the many reasons for a government to seek the solicitor-general’s advice, Queensland crown solicitor Greg Cooper says that the “eminence of the person who occupies the role” ensures that the solicitor-general is briefed where appropriate. Former SA crown solicitor Greg Parker added that there is an additional check:

[The solicitor-general is] totally dependent on me or others to tell him what we’re up to… But at the same time, we’re conscious that if something goes wrong, or becomes a big issue… we get asked the question, why wasn’t the solicitor-general instructed or his opinion sought?

Despite this being the usual position, Australian history provides examples of cases in which the solicitor-general has been “frozen out” or “starved” of work. This might occur for a number of reasons, but most often it has been because of the souring of a relationship between a solicitor-general and an attorney-general.

In Victoria in the late 1990s, for example, relations between solicitor-general Douglas Graham and new Labor attorney-general Rob Hulls were vitriolic. As shadow attorney-general, Hulls had alleged in parliament that Graham advised the government in proceedings against BHP at the same time as being a shareholder and director of a family trust that held shares in the company. Hulls told parliament that Graham was “absolutely incompetent to be in the position of solicitor-general of this state, and as a result he must resign immediately, because the longer he stays in that position the longer the position continues to be tainted.” After Labor took government in 1999, Graham simply did not deal with the attorney-general, and many sensitive government matters that would ordinarily be briefed to the solicitor-general went elsewhere.

There is thus a clear frailty in the current arrangements. Speaking in 2011, former SA solicitor-general Martin Hinton observed that the potential for freezing out “is by no means ideal,” though “it is not the norm, and it has not been my experience.” Most of the current and former solicitors-general I interviewed weren’t concerned by the possibility of being “frozen out” of work, and examples of this happening are exceptions to the general experience.

Nonetheless, its potential has ramifications for the office’s capacity to perform its advisory function in a manner that contributes to the rule of law. And the ability of a government to sideline the solicitor-general also raises the possibility that an individual may endorse a certain course of action to remain within the government’s trusted circle.

What position is Commonwealth solicitor-general Justin Gleeson left in under George Brandis’s May direction? Gleeson had implemented a highly formalised process that alerted the attorney-general to all requests for the solicitor-general’s advice and gave the attorney-general an effective veto. The May direction is an assertion of control by the attorney-general over the solicitor-general for no immediately perceptible reason. If it is intended that the attorney-general will use his greater powers to restrict access to the solicitor-general’s office, this raises rule-of-law concerns.

As Anne Twomey has observed with concern, the new, overly demanding process may also hinder access to the solicitor-general in urgent matters. And former Tasmanian solicitor-general Leigh Sealy identified the dangers of over-formalisation in his 2011–12 report to parliament:

There is some anecdotal evidence to suggest that some people may regard compliance with the guidelines as being onerous and, for that reason, decide not to obtain advice when they might otherwise do so. That is plainly undesirable.

The arrangements that now govern access to the solicitor-general in Australia mean that no one in government, even the prime minister, can ask the office for legal advice without the attorney-general’s written, signed consent. At the same time, there is no guarantee that people within government will seek the solicitor-general’s advice on important matters. In the absence of these guarantees, the system will rely on the integrity of the individuals who fill the roles of solicitor-general and attorney-general, and others in government, to ensure that the solicitor-general advises on the legality of government policies and decisions. Attorney-general Brandis’s reforms demonstrate the fragility of such a reliance, and the consequent fragility of the rule of law. •

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The stakes are high for both parties. The articles in question allegedly defamed Liu by quoting from documents purporting to show that she’d made corrupt payments to former defence minister Joel Fitzgibbon. Liu says these documents are forgeries designed to seriously defame her; she wants to know who is behind them so that she can sue them. She also wants that information because it might give her access to the original documents, which she plans to expose as forgeries.

The journalists and the Age claim that the articles deal with an important matter of public interest. Their case for protecting the source of the documents is one of public policy – to protect the free flow of information from whistle-blowers and other confidential sources. At an earlier stage of the proceedings they argued that they should be protected by the implied constitutional guarantee of freedom of political communication revealed in the High Court’s judgement in the Lange case. This argument failed in an earlier round in the Court of Appeal, however, and the High Court refused special leave to appeal on this point.

The defendants also sought to invoke the principle of the “newspaper rule” as a shield against disclosure. According to this principle, media defendants should not generally be required to disclose confidential sources at an interlocutory stage of proceedings. But the newspaper rule is not an absolute immunity, and only applies where a court considers that it serves the interests of justice.

On the facts of this case, the trial judge and the Court of Appeal have found that the interests of justice favour Liu. Liu successfully argued that if she couldn’t find out who passed the documents she would be hampered in pursuing reputational remedies and, ultimately, in proving them forgeries. The Court of Appeal took a somewhat dim view of the defendants’ decision to relinquish a “qualified privilege” defence, in an attempt to forestall the discovery order, only after the Lange defence failed. The court also appears to have accepted, to some degree, Liu’s criticism of the defendants for relying on copies of documents without seeing the originals. It found that Liu should have the opportunity to claim aggravated damages on this ground.

Liu has yet to enforce the order, and it is not clear what will happen next. Subject to any further appeals, the defendants are faced with the choice of breaching their ethical duties (by revealing their source), or facing contempt proceedings, including fines or jail.

The Liu case has been running for so long that law has changed around it. In recent years, New South Wales, Victoria and some other jurisdictions have enacted specific statutory privileges for journalists in the form of shield laws. These laws don’t provide absolute immunity, but they do provide greater protection than the “newspaper rule” by creating a statutory presumption of source protection. Unfortunately for the defendants in the Liu case, this new shield law came too late.

But the new Victorian shield laws were invoked in a recent interlocutory decision (also involving the Age and journalist Nick McKenzie), Madafferi v the Age. In this case, the defence successfully argued that to identify McKenzie’s source for a story about the plaintiff’s alleged mafia link would jeopardise that person’s physical safety. The court also accepted arguments about the strong public interest in publishing such a story, and the chilling effect on such stories if the order were granted. The court found that the plaintiff would not be unfairly prejudiced in pursuing his action over the story if the source were not revealed.

The Age hailed the decision in the Madafferi case as an important victory for journalism. From an investigative journalist’s perspective, though, the shield laws are still far from satisfactory. They are not uniform across Australia – some states protect bloggers and citizen journalists, others only cover people engaged in the “profession or occupation” of journalism. And a court can still exercise a broad discretion to compel a journalist to reveal a source, depending on the facts of the case.

It’s unclear, for example, whether the new shield laws would have changed the result in the Liu case. In contrast to the Madafferi case, the trial judge in Liu was not convinced that the sources would suffer any adverse consequences, other than defamation action, if their identity were disclosed. In the Liu case also, the identity of the sources was found to be critical to the plaintiff’s case, which was not the view of the court in Madafferi. One final factor weighing against the defendants in the Liu case was that one of their articles included some notes accompanying the documents which, it transpired, the source had requested not be published.

In other words, the broad discretion retained by courts under the new shield laws means that the use of confidential sources remains risky. Journalists and their publishers can still face potentially expensive and gruelling interlocutory proceedings and appeals, and ultimately the risk of contempt of court, should their sources be challenged.

Nor has much improved for litigants under Australia’s Dickensian defamation system. In the Liu case, it was two years after publication before the trial judge made the initial order for discovery. Several more years have passed while the parties have fought over its enforcement. The trial judge and Court of Appeal both remarked on the stress that Helen Liu must have suffered pursuing this order. For his part, Nick McKenzie, veteran of both the Liu and Madafferi cases, recently told the ABC’s Media Watch that fighting to protect sources “absorbs a huge amount of time” and “can be very stressful...” The expense of such proceedings is also debilitating. In Britain, it has been recently estimated that the cost of a defamation trial is now around £700,000 (A$1.3 million). In Australia, defamation costs have been described as “incredible and crippling.”

As the Liu and Madafferi cases demonstrate, the uncertain scope of journalists’ source protection is one contributing factor to our labyrinthine defamation laws. But the bigger problem is that these laws were developed in very different times. They are now increasingly ill-equipped to moderate between reputation and free speech interests in a world of rapid digital publication. As “traditional” media outlets shrink and small publishers and bloggers proliferate, a root and branch review of defamation laws cannot come soon enough. •

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But in the legal world, politeness often combines with passion, and this demonstration was no exception. Having called on us all to respect the right of way, Woods went on to describe what was happening inside the court complex that was our backdrop. More than 80 per cent of those appearing in court today, he said, would suffer from a mental illness, be a victim of domestic violence, have a problem with substance abuse, or be homeless or be unemployed. “More than 60 per cent of them will have been to court before,” said Woods, who chairs the Law Council of Australia’s Access to Justice committee. “Yet only a quarter would qualify for legal aid.”

Funding for legal aid has been declining in real terms for almost twenty years now, ever since the first cuts made by the Howard government in 1997. In per capita terms, according to retired judge Betty King QC, legal aid funding has almost halved.

“We are an adversarial system of justice,” King told the crowd. “It cannot be a fair system of justice when only one side gets the money to be represented in court.” King spent forty years working in the criminal justice system, the last ten on the bench of Victoria’s Supreme Court. “As a Supreme Court judge, I had the power to direct legal aid to represent an accused person if it was in the interests of justice,” she told the rally. “But that doesn’t happen in the magistrate’s court.”

The result, says King, is that a magistrate is forced into the position of becoming a de facto advocate, obliged to protect the person facing charges from unfair questions, explain all the court processes to them and ensure those explanations are fully understood. This is a formidable challenge when the accused may be poorly educated, intellectually challenged or mentally unwell. “Trials take up to twice as long,” said King. “That is a big cost to the community, when you consider the expense of running a court for just an hour.”

It is a cost not just to budgets but also to fairness. A person on a low income is only likely to qualify for legal aid if he or she faces a significant risk of going to prison, but even a non-custodial sentence can have a huge impact on a person’s life. “People who may not actually be guilty of the offence or some of the offences they are charged with, may face terrible consequences from a conviction, like losing custody of their child or losing their government subsidised house,” said King. “These are the ripples in the pond.”

Barrister David Neal, who also spoke at the rally, said legal aid is now so restricted that a pensioner would be unlikely to qualify for assistance. Neal said that 14 per cent of the Australian population live below the poverty line, yet only 8 per cent of the population have incomes under the threshold that renders them eligible for legal aid. “Can we say to them that the Australian system delivers equality before the law?” Neal asked the crowd.

Legal aid is generally only available in criminal, not civil, matters, which can leave a victim of domestic violence without representation in disputes with a violent partner over property or the custody of children. The defunding of legal aid has been compounded by cuts to community, Aboriginal and family violence prevention legal services, which are also forced to turn away tens of thousands of people seeking help.

Tuesday’s protest was timed to coincide with the County Court’s open day of tours and mock hearings for Law Week. Teachers bringing school groups along to see the wheels of justice turning got more than they bargained for as they negotiated their way through a crowd liberally sprinkled with barristers resplendent in wigs, gowns and immaculately laundered jabots.

What the organisers hadn’t anticipated was that the protest would also fall in the second week of a federal election campaign. But speakers took full advantage of that coincidence. While noting that some election promises had been made in relation to funding community legal centres and family violence prevention services, Law Council of Australia president Stuart Clark declared that the sums on offer so far were far from adequate. “Lives are being destroyed because people are left to fend for themselves in front of the courts,” he said.

Clark called on both sides of politics to commit to an immediate injection of $200 million into legal aid, as recommended by the Productivity Commission’s inquiry into access to justice arrangements. He noted that the inquiry began under a Labor federal government in 2013 and reported to a Coalition government at the end of 2014, yet neither side of politics has responded to its funding recommendation. The economically dry Productivity Commission, which is not usually known for encouraging greater government spending, said the increase was needed to better align the means tests used by legal aid commissions with other measures of disadvantage, and to maintain existing frontline services that have a demonstrated benefit to the community.

A $120 million increase in federal money would be enough to return the Commonwealth to funding a half share of legal aid with the states and territories, rather than the one-third share it has fallen to. The Law Council would like to see a similar level of funding committed to providing assistance in civil matters.

An increase in funding may not seem to align well with promises of “budget repair,” but Clark says the fiscal benefits are potentially huge. Adequate legal aid brings long-term savings, not just in court costs but also in areas like health and corrections. “Every dollar spent on legal aid has an economic return,” he said.

Steve Hynes, who runs Britain’s Legal Action Group, agrees. He told the crowd that evidence around the world shows that a dollar spent on legal assistance generates at least seven dollars in savings on other services. In some studies, he says, the return is found to be as high as $27. “You know if you lose your house, your children can end up in care,” said Hynes. “Parents can end up on government benefits. There are knock-on effects to the state. It makes sense to invest in legal aid.”

Hynes led a campaign against the Cameron government’s cuts to legal aid. There, barristers and solicitors didn’t stop at protests outside courthouses, but went as far as withdrawing their labour, refusing to appear in cases. “It was the poshest strike I’ve ever seen,” says Hynes. “There were wigs on the picket lines.” Hynes notes that it was described as a boycott, rather than a strike, since lawyers are essentially self-employed, but he says it got serious attention from the government, and the worst of the government’s funding cuts were reversed. Per capita, legal aid funding in Britain today is roughly double the allocation in Australia.

Whether Australia’s legal fraternity will go so far as boycotts or strikes remains to be seen, but it will certainly take determined action to achieve the vision outlined by the Whitlam government’s attorney-general, Lionel Murphy, in late 1973.

In a comprehensive statement on legal aid tabled in federal parliament, Murphy said that the government had decided to fund legal aid because “one of the basic causes of the inequality of citizens before the law is the absence of adequate and comprehensive legal aid arrangements throughout Australia.” An ordinary man or woman facing a legal problem should be able to get assistance “as readily as he or she would go to the garage with an ailing motor car,” said Murphy, noting that it is “usually the socially disadvantaged person who is unrepresented in magistrates’ courts and persons who are unrepresented are prejudiced.”

Today, legal aid funding has fallen so low that the situation appears little better than it was when Murphy tabled his statement almost forty-three years ago. Today, people who appear unrepresented before magistrates are “often downtrodden, life-weary, sad people, who don’t have a person to speak to about this crisis in their life,” said Betty King. “The removal of funding of this proportion is an erosion of people’s rights to be heard, to be listened to. It’s like saying their lives don’t matter.” •

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Apart from the informative introductory essay by the editors, all of whom are academic lawyers based at the UNSW Law School, the collection is bookended by two forthright and in some ways contradictory essays.

At the front, Bret Walker SC argues that Australian native title law is fundamentally flawed. He contends that the law unfairly imposes an evidentiary burden that other property holders do not confront, is under-conceptualised by judges, and is too quick and arbitrary in requiring the extinguishment of native title interests. Walker argues that the Native Title Act’s attempts to encourage mediation build in an inertia that leads to the compromise of what should be recognised as cut and dried rights.

At the back end, Glen Kelly and Stuart Bradfield outline the case for the Noongar people’s strategy of moving beyond native title, and negotiating what comes close to being a comprehensive settlement with the Western Australian government. This agreement, when concluded, will benefit almost half of the Western Australian Aboriginal population, and avert the cost and uncertainty of a native title claim process. In return for total benefits exceeding a billion dollars – including $600 million in a trust for land acquisition and management, and freehold title to up to 320,000 hectares of land across an area larger than Victoria – the Noongar native title claimants will give up any future claim to native title over that area.

The essays between these two bookends address the panoply of legal and political issues that native title claimants and holders must come to terms with. To their credit, in addition to legal analysis, the editors have gone out of their way to include and engage with broader political issues affecting native title in Australia.

Jon Altman and Francis Markham, in an extremely illuminating chapter, introduce a geospatial analysis of the expanding footprint of the Indigenous estate, including both statutory land rights title and common law–based native title across the continent. A number of maps and tables outline the extent and location of Indigenous land tenure, including in relation to other factors such as vegetation, threatened species and national reserves. They provide a much-needed context for the legal and policy issues permeating native title. For example, while statutory land rights tenures cover some 10 per cent of the Australian continental landmass, determined native title tenures cover a further 23 per cent, and current registered claims (yet to be determined) cover a further 33 per cent of the continent. Yet Indigenous residents of the existing Indigenous estate number only around 75,000, and in the yet-to-be-determined “claimed” estate, only some 225,000. It is little wonder that Indigenous interests’ potential for policy and political influence on native title issues is virtually non-existent.

One hugely important theme of current and increasing significance is the alienability of native title land. In an insightful and masterful analysis, David Yarrow argues that the High Court under-conceptualised the issue of alienability, and that there is no fundamental reason why the current definitional imperative that native title is inalienable should not be revised by the courts or the legislature. In essence, he is arguing that Indigenous self-determination requires the capacity to alienate (or sell) the land. Conservative or pro-market theorists have advocated this idea for many years, so the fact that an advocate of Indigenous self-determination is making the same case might signal that its time has come.

Andrew Chalk and Sean Brennan point out, in an essay on the NSW Land Rights Act, that Aboriginal title under that statute is alienable but requires an 80 per cent vote of the communal owners to authorise sale. This is in contrast to most of the land rights legislation in Australia. In his usefully complementary chapter, Leon Terrill provides an accessible and insightful synthesis of Hernando de Soto’s influential views on the importance of liberating the “dead capital” imprisoned in informal (and thus inalienable) land tenure, along with an assessment of the arguments of de Soto’s critics. Terrill sets up the case that native title is sui generis, and de Soto’s arguments in favour of alienable title don’t necessarily apply to native title tenures.

While Yarrow’s and de Soto’s views have intrinsic merit, the policy benefits of shifting “broad acre” native title from inalienable to alienable tenure are not overwhelming. As a number of the authors point out, capacity and governance, as well as adequate regulation and oversight would be prerequisites of such a shift. In their absence, the risk of extensive tracts of land being irrevocably lost to the Indigenous estate is considerable. On the other hand, where native title exists in townships and settlements, there may well be a stronger case for greater alienability. Whatever one’s views in balancing these competing considerations, through the inclusion of various alternative analyses the editors have shone a light on the complexity of the choices facing the nation in just one corner of the native title policy landscape.

A second theme that emerges from the collection relates to the institutional framework in place to facilitate the exercise of native title rights once determined. A number of the legal chapters refer to the incentives built into the Native Title Act towards “balkanisation” of claims and native title determinations. David Trigger’s chapter on the micro-politics of social inclusion in claims, and to a lesser extent Danielle Campbell and Janet Hunt’s chapter on the community allocation of payments under the Northern Territory land rights legislation point to how internal dynamics within Aboriginal social structures can similarly lead towards group fragmentation.

In separate chapters, Marcia Langton and Tim Rowse assess the utility of the corporate structures required by the Native Title Act, and their effect on the capacity of native title holders to use the rights that they have had recognised. Rowse’s essay is conceptually sophisticated, but leaves the policy implications opaque. Langton proposes (albeit “provisionally”) changes to native title legislation to facilitate more regional approaches to the composition of native title holding bodies. Her argument is both persuasive and attractive. She is almost alone among the contributing authors in breaking free of academic “neutrality” or caution and proposing specific public policy change. Her proposal requires further analysis by others to map out a pathway to legislative reform. Interestingly, the Victorian and forthcoming Noongar native title settlement agreements appear to be conscious attempts by native title holders themselves to address the advantages of regionally based solutions to managing traditional land holdings.

A third theme, indeed the centre of gravity of the book, is the courts’ detailed exploration and exposition of native title law, in particular the competing judicial interpretations of the components and conceptualisation of native title since the Mabo case. The courts have progressively articulated a more organic view of native title, which incorporates an inherent capacity to reflect change and transformation. This is the journey from Mabo to Akiba referred to in the book’s title, Akiba being a High Court 2013 judgement confirming the recognition of a native title right to take fish for commercial purposes in the Torres Strait.

While acknowledging the considerable strengths of the book, it is nevertheless valuable to consider its shortcomings.

The structure is perhaps too conventional. In their introductory essay the editors articulate four modes that facilitate engagement between Indigenous peoples and settler states: legislation, litigation, policy and administration, and negotiation. The book then divides into two parts: part one, “Legal Dynamics in the Development of Native Title,” and part two, “Native Title as a Vehicle for Indigenous Empowerment.”

This is a particularly passive framework, which says nothing about the capacity for political and policy influence of Indigenous peoples and their organisations, and which ignores the role of business organisations as a potential component of political and policy advocacy in Indigenous contexts. An alternative framework might have focused on the context (both historical and policy) of native title, current issues (both legal and political), and finally the structural underpinning and implications affecting or constraining policy change in the future.

Such a framework would have facilitated a more thematic structure, integrating legal analysis, policy and political analysis. This may have assisted in overcoming the comparative silence of the book on the nuts and bolts of native title public policy.

To take one example, the fact that primary policy responsibility for native title within the federal government has resided with the Attorney-General’s Department for the majority of the past twenty years has led to policy issues being framed in overly legalistic ways, to the detriment of the underlying policy objectives that the Native Title Act might support. Yet while a number of chapters comment on the federal government’s propensity to oppose native title claims in the courts, none make the link to where and why these decisions are being made.

A second weakness is the book’s under-emphasis on the structural issues surrounding use of native title payments and benefits by Prescribed Bodies Corporate (holding corporations established under the Native Title Act) and other Indigenous groups. While Campbell and Hunt’s chapter discusses the processes used by the Central Land Council to broaden the choices available to statutory payment recipients, the book provides no overall account of the size and significance of native title payments made over the past twenty years, or how those funds are being distributed by resource developers, and allocated by native title holders and claimants.

Yet it is arguable that these structural issues are the crucial determinants of whether native title rights will empower Indigenous people into the future. In very simple terms, decisions by native title holders to consume the financial proceeds arising from negotiated agreements to access their lands, rather than save or invest those funds, will effectively disempower Indigenous interests over the long term. Decisions to save and invest will empower them. Unfortunately, these issues receive only passing attention in the collection.

A third shortcoming is the lack of any substantive discussion of post-1975 compensation issues. Native title is extremely vulnerable to extinguishment (a point made in a number of the legal chapters), but following the enactment of the Racial Discrimination Act in 1975, and reinforcement by provisions of the Native Title Act itself, extinguishment requires just terms compensation. The interaction between this legislative imperative for just terms compensation and the uncertainty over where native title continues to exist has set up a policy dynamic that favours the early settlement of native title claims. The Yawuru around Broome and the Noongar peoples in Western Australia’s southwest are beneficiaries of this dynamic. In short, state governments have an incentive to settle now, rather than possibly face enormous compensation claims in the future, particularly in locations where native title may have been extinguished by grants of title to facilitate high-value urban development.

Similarly, the vexed issue of Commonwealth assistance with the costs of potential state compensation obligations, offered by the Keating government after the passage of the Native Title Act, is an underlying and hidden driver of much of the federal–state interactions over native title policy.

The states have an incentive to negotiate settlement with native title claimants. But the financial contributions by states to these agreements are not technically compensation for extinguishment of native title, and so far the Commonwealth has resisted considerable pressure over many years to substantively contribute to such negotiated settlements. The Commonwealth’s reticence to underwrite settlements to which it is not a party is understandable, but its frugality may be inhibiting the negotiated settlement of both native title claims and claims for compensation, thus adding to future costs of litigation for all potential parties.

Litigation for compensation for extinguishment of native title is in its infancy, but is likely to emerge as a key element in the politics of native title over the next twenty years. The shape of these future judicial decisions will play a major role in determining whether Indigenous interests are benefited and potentially empowered. In the meantime, the states and the Commonwealth are warily circling each other over the issue of which level of government will eventually pay the major share of these future liabilities.

These compensation issues are virtually absent from the book, perhaps because so far they have been under-represented in the cases brought before the courts. Yet they underlie much of the positioning by key players and stakeholders in the native title policy domain, and will ultimately determine the extent to which native title can empower Indigenous interests.

While it is perhaps harsh to criticise a book for what is not included, fully assessing the complex issue of Indigenous empowerment demands a more policy-oriented focus than this collection brings to bear. The legal analyses in part one of the book are of a very high quality, but often fail to take the next step of assessing the public policy options and choices inherent in the issues being canvassed. The empowerment analyses in the second section are insightful and hugely informative about the complexities of on-the-ground management of native title issues. However, the link back to the legal issues driving policy outcomes is under-articulated. So, for example, nowhere does the book address the practical political challenges of getting sensible reforms onto the legislative agenda – reforms such as those released by the Australian Law Reform Commission in its April 2015 report Connection to Country, or those raised some years ago by Indigenous interests led by Marcia Langton, and the Minerals Council of Australia in relation to effective use of native title payments.

Notwithstanding its political profile and undoubted significance for Australian land law and ultimately for economic development, on the key substantive issues native title has become a public policy-making and legislative reform dead end. The nation’s native title ministers met in 2013 and 2014 after a hiatus of four years, but without any apparent outcomes. The courts have been left to do the heavy lifting. This should hardly be a surprise, as arguably the Mabo decision itself was engendered by the incapacity of the Australian polity to deliver land justice to Indigenous Australians via statutory land rights legislation.

To ensure that native title has a positive and enduring transformative impact, we need effective and pragmatic legislated reform that acknowledges the realities of past injustice; that reduces the onerous thickets of administration and regulation hindering effective use of the rights that have been recognised and “won”; and that builds political and policy coalitions within and beyond Indigenous interests to keep positive institutional and structural reform on the national agenda. Achieving this reform, rather than any dearth of ideas or analysis, is the real challenge for native title in Australia.

At present the nation is not in that space. The claims process established under the Native Title Act continues to spool out new native title determinations, but the political system is not meeting the challenges of ensuring those claims deliver benefits. Australians, both Indigenous and non-Indigenous, will need to continue looking to the courts to deliver the solutions.

This collection of analytically sophisticated and diverse essays is a considerable contribution to meeting those challenges. It will reinforce the momentum within the courts towards more sensible conceptualisation and articulation of native title rights. From Mabo to Akiba doesn’t lay out the complete roadmap for the journey, but it does explore and synthesise the issues that need to be addressed if native title is to fulfil its potential as a vehicle for achieving a just reconciliation between the nation and its original owners. •

The post Native title: the missing link appeared first on Inside Story.

In January, less than three years after winning power with a historic majority, premier Campbell Newman was spectacularly ejected from office in Queensland. But while his government has gone, Newman’s controversial appointment of Tim Carmody as chief justice in July last year continues to be a running sore for the state’s judiciary. Many senior judges and legal figures view as intolerable the prospect of Carmody’s remaining in office until his mandatory retirement, at the age of seventy, in twelve years’ time.

Recent developments, which have plunged the Queensland judiciary into renewed public rancour, can’t be fully appreciated without an understanding of the circumstances of Carmody’s appointment as chief justice. I have previously written a detailed account for Inside Story, so here I will simply recall the fact that when Carmody was sworn in as chief justice he was surrounded by chairs left empty by every single serving member of the Supreme Court, all of whom had boycotted the ceremony. It would take a person possessed of exceptional qualities to overcome such an inauspicious start.

Nine months on, it is clear that any attempt Carmody has made to win the respect of his colleagues has failed. Indeed, if the claims made against him are to be believed, he has only managed to antagonise them further and confirm his unsuitability for the post. Just a few days into the New Year a Guardian report unfavourably compared the number of published decisions Carmody had made during his six months as chief justice (three) with the number managed by his predecessor Paul de Jersey during the previous six months (twenty). It was de Jersey’s appointment as state governor that cleared the way for Carmody’s rapid elevation from the position of chief magistrate, which he had held for less than a year. The Guardian also highlighted the number of Carmody’s decisions overturned by the Court of Appeal.

On 23 March, the president of the Court of Appeal, Justice Margaret McMurdo, released a statement correcting press reports that she was opposed to televised court proceedings, a matter under review by a committee of judges at Carmody’s instigation. She revealed that although the chief justice had publicly announced his support for televised proceedings, he had vacated the role of committee chair, citing “time pressures and other demands.” McMurdo herself has taken on chairing of the committee and responsibility for its forthcoming public consultation.

All this was just the smouldering background to an incendiary valedictory speech given by Justice Alan Wilson on 26 March to mark his retirement from the Supreme Court. Carmody was overseas, but in the audience were judges from all the Queensland courts, as well as members of the federal judiciary who are based in Queensland, including Justices Kiefel and Keane of the High Court of Australia.

To describe Wilson’s remarks about the chief justice simply as a parting shot would be grossly inadequate. His staggering volley of missiles described in detail the dispiriting effect on the state’s judiciary of “being publicly represented by a chief justice for whom most now lack all respect” and cited four features of Carmody’s tenure by way of explanation. First, there was the matter of the amount of casework performed by the chief justice. Wilson claimed that Carmody had not sat on a hearing since 15 February and “has withdrawn himself from all published court calendars, so nobody knows when or whether he intends sitting again.” He also pointed to Carmody’s absence from trial division sittings in Brisbane and his professed intention to sit only occasionally in the Court of Appeal.

Second, Wilson revealed that Carmody had sacked Justice John Byrne from the post of senior judge administrator, the head of the Trial Division, and had only reversed the decision after an outcry from the other members of the court. Third, and perhaps most damaging of all, Wilson claimed that Carmody had attempted to depart from the longstanding protocol under which judges are appointed to sit on the Court of Disputed Returns in strict order of seniority. That court decides disputes that arise in the wake of state elections – and such disputes were a very live possibility given the closeness of the vote in some seats in January. Last, said Wilson, Carmody had referred collectively to his colleagues as “snakes” and “scum” and failed to treat them with civility or courtesy.

Carmody’s initial response to these criticisms was to reject them outright. He also made the unexpected observation that Wilson’s behaviour was “the best argument yet for an independent judicial commission.” Whether the chief justice meant a commission to handle judicial appointments or one to deal with judicial misconduct was unclear. The latter seems illogical given Wilson’s imminent departure from the court. As for the former, many critics have already cited Carmody’s own elevation to the state’s highest judicial office as evidence of the need for a more formal and depoliticised appointment process overseen by an independent commission.

After his return from Papua New Guinea, Carmody wrote to the presidents of the Queensland Bar Association and the Queensland Law Society expressing a preference that Wilson’s allegations “be discussed and resolved internally within the judiciary and legal profession… rather than damaging the institutional reputation of the judiciary through the public airing of grievances.” But since the claims had been made in public some response in kind was required, and so Carmody’s letter was also sent to the Courier-Mail for publication.

It is curious that the chief justice thought he could adopt this strategy and yet confine himself to addressing just two of the criticisms. Surprisingly, he made no reference whatsoever to Wilson’s claim that he had sacked the senior judge administrator and then reversed the decision under pressure from the other judges. Nor did he respond to the claim that he had made derogatory references about his judicial colleagues. These omissions from Carmody’s own defence were seized on by Terry O’Gorman of the Queensland Council for Civil Liberties, who has called on the chief justice to provide the facts of what occurred.

O’Gorman and other members of the profession have also challenged the adequacy of Carmody’s detailed response to the other two criticisms. Barristers Stephen Keim and Alex McKean have unpicked the chief justice’s defence of his sitting arrangements, highlighting inconsistencies between information in his engagement calendar and the dates he discusses in his letter. They argue that he hadn’t adequately communicated his intentions beyond advising some members of staff in the court registry, and concluded that – even on the most favourable tally – the chief justice appears to have had a “significant period away from the coalface” and looks likely to spend just eighteen weeks in court during the eight-month period to November.

But this was as nothing compared to the questions raised by Carmody’s attempted clarification of the matter of the Court of Disputed Returns. Carmody correctly stated that section 137 of the Electoral Act (Qld) vests the power of constituting that court in the chief justice. But he asserted that a departure from the protocol whereby senior judges are automatically appointed to this body may be justified in cases where sticking to the protocol would not “ensure the appearance of neutrality.” It is this statement that has generated great disquiet.

Given that the appointments did eventually follow the protocol, O’Gorman has asked the chief justice to explain why he thought the choice of those particular individuals – both of them senior judges – might have failed to “ensure the appearance of neutrality”? Keim and McKean have suggested that Carmody doesn’t deserve much credit for eventually sticking to the protocol, given that he did so on the very day the Electoral Commission announced it would not be seeking a Court of Disputed Returns hearing into the result in the seat of Ferny Grove, which was hugely important to securing Labor’s narrow victory in the state election. They also query the value of a protocol that the chief justice says “must yield to the circumstances of the day” and express dissatisfaction about his failure to respond to Wilson’s related allegations that he attempted to speak privately with one of the nominated judges about his “unresolved concerns.”

The whole business, in other words, is a lamentable mess. A highly respected figure has made scathing criticisms of Queensland’s highest judicial officer to a large audience made up of members of the state and national judiciaries, and these criticisms are now on the public record (on the website of the Supreme Court’s own library, no less). The chief justice has offered a partial defence that is viewed by most observers as seriously inadequate. The president of the Bar Association, Mr Shane Doyle QC, has felt unable to respond to Carmody’s request for the organisation’s assistance in bringing the “destabilisation” to an end with anything more than an assurance that his organisation “is attempting to fully understand the circumstances which give rise to the present issues, and will seek to contribute to a mature and constructive resolution of those issues in whatever way is possible.”

Despite those careful words, the affair has riven the Bar Association. Just a day before Wilson’s valedictory remarks, Peter Davis QC – who resigned as the association’s president over the government’s handling of the consultations before Carmody’s appointment – was presented with life membership of the association. In a fiery acceptance speech he accused the association of suffering from “identity crisis” and severely criticised its attendance at Carmody’s swearing-in.

Judges talk a lot about the importance of public confidence in the courts, which is essential to their power and authority in the community. At the time he was appointed, the fears that Carmody was not up to the job – deepened by his ill-advised acknowledgement that he was rarely “the smartest lawyer in the room” – led to predictions that the new chief justice would damage that confidence. Rarely have such fears been so swiftly or dramatically borne out. With a divided legal profession looking with dismay on a demoralised and fractious judiciary, how can public respect and faith in the courts not be suffering?

But what is to be done? The new premier, Annastacia Palaszczuk, whose infant government is clinging to power in the wake of Billy Gordon’s expulsion from the Labor Party, has little time for a replay of the public bitterness that accompanied Carmody’s appointment in 2014. With palpable exasperation, she declared that “enough is enough... the time has come now for there to be stability.” This is about all she can do, for any attempt by the government to resolve the tensions between the judges risks being seen as an interference in the independence of the judiciary – one of the gravest criticisms of the Newman government’s conduct.

As in other Australian jurisdictions, Queensland’s constitution provides that judges may only be removed by the governor-in-council on an address by the Legislative Assembly for “proved misbehaviour justifying removal from the office” or “proved incapacity to perform the duties of the office.” Such a move would be the culmination of a complex process involving an investigation by a specially constituted tribunal. No one – not even his most trenchant critics – has suggested that the chief justice has engaged in any conduct that might be viewed as “misbehaviour” supporting the case for his removal under the constitution.

Instead, the talk is all about Carmody facing up to the fact that his position is simply untenable and making what Graeme Orr calls “a face-saving exit.” To be frank, it is hard to believe this is possible. The reputational damage that Carmody has weathered since his appointment was announced ensures that his departure would simply be an “exit.” This may explain his remarkable tenaciousness in the face of criticism that would wilt many others. He has nothing to lose and everything to prove.

In his letter to the Bar Association and the Law Society, Carmody declared that he would not be “bullied out of judicial office.” And there, as they say, is the rub. If he won’t go, then no one can force him to. The trashing of his reputation only succeeds as a strategy to bring about his departure if he lets it. If, as appears to be the case, he chooses to dig in, then no one wins and everyone – the chief justice, the other judges and the court, the profession and the community – loses from the public airing of grievances over his leadership, no matter how legitimate those may be.

Security of judicial tenure has been integral to the institutional independence of the judiciary since the Act of Settlement was enacted by the English parliament in 1700. It is the ancestor of those provisions in Australia’s national, state and territory constitutions that protect judges from the threat of political interference or removal. Carmody’s plight is distinctive because it is his colleagues who want him gone. Yet they possess no constitutional power, let alone mechanism, to bring about that result.

Nor, to be blunt, should they. Judicial independence, as the High Court’s Justice Dyson Heydon reminded us before his retirement, includes independence from other judges. Heydon was discussing the reasoning process when judges decide cases together on an appellate court, and insisted that judges should be on guard against blandishments from colleagues designed to obtain agreement to outcomes with which they might otherwise disagree. The dire impasse in the Supreme Court of Queensland is, of course, entirely outside the dynamics of normal judicial decision-making, but the core of the principle holds: judges should be free from interference in the performance of their duties.

There is a certain irony in invoking the principle of judicial independence in defence of Tim Carmody. Both before and after his appointment as chief justice it has been alleged that he was unacceptably close to government and also, in respect of the recent Court of Disputed Returns claim, that he was prepared to upset established processes designed to ensure judicial impartiality. It also offers no solution to the enormous problem of what Wilson called “the current experiment” of having a chief justice who “frankly admits” he lacks the legal ability necessary to attract the respect of those serving alongside and under him. As Orr says, the Supreme Court “is in a terrible bind.” Its members not only view Carmody as ill-equipped for his office but also resent him for a range of specific reasons, the validity of which he has been unable to convincingly dispel. Rail as they might, however, the judges are stuck with him.

The lesson from all this, of course, is that it is vital to get things right at the time of appointment. With judicial tenure secure except in the most extreme cases, it is important that those selected for judicial office are unquestionably able and respected. This doesn’t mean that the power of appointment should simply be abdicated by the executive to the judiciary and the legal profession. Sitting judges should not be left to choose their colleagues and successors, lest they, unconsciously or otherwise, prefer the appointment of those persons with experiences and backgrounds similar to their own. That would slow the development of a more diverse judiciary in Australian courts.

It does mean, however, that governments should approach the task of appointment with earnest good faith and a willingness to consult and listen. Instead, Premier Newman and his attorney-general capped off a turbulent relationship with the Queensland legal profession by appointing Tim Carmody as the state’s chief justice with full knowledge of how that would be received and the reasons why.

His government has been consigned to history, but Queensland is still in the grip of Newman’s most contentious legacy – his decision to use the opportunity to appoint a new chief justice as a deliberate provocation to the state’s judiciary. It may be small comfort to Carmody’s critics and offer no resolution to the simmering tensions that persist in the Supreme Court, but the political cost Newman incurred for that decision is the best guarantee we have that governments will not approach future appointments in the same spirit. •

The post Campbell Newman’s most contentious legacy appeared first on Inside Story.

There were great hopes for the conference, and in the days leading up to it Angel was suffering extreme anxiety. On the day, though, the person sitting in Angel’s victim’s place was representative from a victims’ rights organisation, who told us that the victim was too traumatised to meet his attackers. I wondered what demon his mind had made of Angel, the slim, nervous fifteen-year-old girl sitting beside me. Also present was Angel’s mother, myself as Angel’s lawyer, Angel’s youth justice worker, an educational officer, a police officer and the convener.

Unfortunately, the victims’ rights representative was only interested in using the conference as a platform to berate and shame Angel for her (rather passive) role in the horrific attack. The convener was unable to steer the conference in such a direction that the underlying factors in Angel’s pattern of offending – her unstable home life, her lack of school attendance because of severe bullying there, and her related drug use – could be discussed in any meaningful way. Angel’s mother was more concerned to wash her hands of the girl’s behaviour.

The conference was deeply unsatisfactory, though Angel’s participation was taken into account by the court, which ultimately imposed a slightly lesser penalty than it might otherwise have done. In part because every assessment of Angel’s situation was conducted in the presence of her mother, the conferencing process also missed its opportunity to link Angel with appropriate services to help her cut back on drugs, cope with her anxiety and get back into education. And because the victim chose not to participate, the group conference missed the opportunity to contribute to the victim’s healing process as well.

But victims do participate personally in about half of all conferences. And as imperfect as it often is in practice, group conferencing does have a proven track record of reducing recidivism among young offenders and leaving participants satisfied with its work.

In Victoria, group conferencing was just one of a series of radical reforms to the criminal justice system during Rob Hulls’s time as attorney-general between 1999 and 2010. Besides group conferencing for young offenders (introduced in 2003), Hulls oversaw the introduction of Koori courts (in 2002), a drug court pilot (also 2002), Collingwood’s Neighbourhood Justice Centre (2007) and Melbourne’s Assessment and Referral Court List (2010). On leaving government, he established the Centre for Innovative Justice at RMIT.

Hulls is a sweary, passionate man with a booming voice, who gives the impression he could talk at you until he converts you. It was his experiences representing legal-aid clients in both Victoria and Queensland that propelled him into political office, first as the federal member for what’s now Bob Katter’s seat in Queensland, and then in his home state from 1996.

“You need to believe what you’re saying,” he tells me with urgency, “and you need to explain your ideas clearly. You need to spend a lot of time with journalists, getting them to understand what you’re doing, and you need to write opinion pieces to explain yourself to the public. And when you do get something through, you need stacks of independent assessment to show it’s bloody well working.”

And working it is. Koori courts have been shown to cut recidivism rates in half. The Neighbourhood Justice Centre also showed immediate benefits. The Dandenong drug court saves the Victorian government about $5.80 for every dollar it spends on it. As well as reducing the likelihood that participants will offend again, it has also been found to reduce unemployment among participants by a third.

Hulls’s reforms aren’t unique in Australia. The first Nunga court was established at Port Adelaide in mid 1999 without any specific legislative basis, as an initiative of a magistrate, Chris Vass, and community groups, police and the Aboriginal Legal Rights Movement. “Circle sentencing” began for Indigenous offenders in 2002 in New South Wales, and Murri courts and Aboriginal community courts were established in 2006 in Queensland and Western Australia respectively. The first drug court began operations in Sydney in 1999, and similar courts now sit in Victoria, Western Australia, Queensland and South Australia. And mental health courts, of which the Assessment and Referral Court List is one, can also be found in Queensland, South Australia and Tasmania.

Indigenous-specific sentencing courts adapt sentencing circle practices seen in Canada and New Zealand, and are among the first real acknowledgements by Australian criminal courts of the ways in which they’ve been complicit in the long colonial history of Aboriginal and Torres Strait Islander dispossession. They aim to address directly the sense of alienation with which many Aboriginal offenders experience not merely court systems, but also much of life. While they don’t yet have room for victims, by slowing down the sentencing process Koori courts in Victoria, for instance, allow a more meaningful exchange between the offender and the magistrate. By sitting on specific days every month, the court can more readily coordinate with local services (drug and alcohol counselling; grief counselling; anger management and offender behaviour programs; education and training): when representatives of services are in the courtroom, it’s much easier for magistrates to direct defendants to link up with them. And, crucially, by involving Elders from the local Koori community, the court offers opportunities for community re-engagement, pastoral care and genuine shaming that just don’t happen in a classically structured court. Whereas a plea in a mainstream court might take five minutes, the same hearing in a Koori court may take up to an hour – or even longer.

Koori courts are often difficult emotional experiences for people pleading guilty to crimes, because they’re asked to reflect on their behaviour and answer to their Elders – or are reintroduced to a community from which they’ve become estranged. They’re also difficult for magistrates, who come down from the bench – which functions as a kind of emotional barrier to the effects of their decisions on offenders – to sit at the bar table directly opposite the defendant. Magistrates often say they find Koori court sitting days the most consistently challenging of all hearing days. “I sweat buckets, and I finish completely emotionally drained,” one told me. Having sat on Koori courts since their inception, Clive Alsop of the Gippsland circuit can often be seen editorialising from the bench about their extraordinary benefits to anyone who may be listening.

Circle sentencing in NSW local courts goes a step further than Victoria’s Koori courts by involving local Koori and Ngunnawal communities and Elders in decisions about how to sentence Aboriginal people who commit crimes. Victoria’s Koori courts explicitly keep Elders out of sentencing decisions so that they can’t be seen to have participated in a decision to imprison an Aboriginal person, though magistrates and Elders often discuss cases behind closed doors.

Again, though, these alternative sentencing models aren’t magic solutions to the problems of criminality and dysfunction. Indigenous courts are notoriously open to the “deep colonising” critique advanced by UNSW academic Deborah Bird Rose in 1996 to describe processes – like the granting of limited land rights – that ostensibly advance the cause of decolonisation, but whose effects in practice further the colonial project by incorporating merely the least threatening of the anti-colonialists’ demands.

Whereas Koori courts are intended to incorporate limited aspects of Koori culture and community in an effort to address the overwhelming alienation experienced by many Indigenous people in the Victorian court systems, anecdotal evidence exists to suggest that they may have a divisive effect on some Koori communities. I’ve had many conversations with people who tell me they resent the insider/outsider divisions fostered by the court.

“Those Koori court Elders who sit there and don’t do anything to stop us mob getting locked up,” one Gunai-Kurnai woman said to me, “they’re just as bad as them trackers a hundred years ago.” One man who has worked within the Koori courts told me he’s concluded that it’s just a “sneaky whitefella way of getting Kooris through a racist system.”

The Koori court model is a specialist court incorporating aspects of restorative and therapeutic justice, but the court itself is established by people untrained in any therapeutic profession: a magistrate, a prosecutor, a corrections officer, a court officer and two community Elders. Where a problem-solving or therapeutic approach is required, sometimes the court runs off-course – and Koori courts have been known to lose patience when people come back a second or third time without showing any improvement in behaviour. Constructive shaming, which is one of the intended elements of Elder involvement in Koori courts, isn’t always appropriate.

After her inadequate group conference, fifteen-year-old Angel hadn’t begun to engage any more successfully with services that might be able to help her, in part because nobody yet had any real idea about what might be driving her to hang around twenty-something men with long criminal records. So when she was arrested again and brought before the Koori court, the Elders laid the shame, guilty and responsibility on thick. For an hour, they told her what a thorough disappointment she was to her family and to the community, what a disrespectful child she was, how much pain she’d put everyone through, and that they didn’t think they had anything more to offer her. I watched Angel’s face during this sixty-minute roasting. It was blank, as I imagined it was when her family laid into her for her various failings.

We later commissioned a psychologist to assess Angel. In his report, he noted her tendency to dissociate – to detach herself from her own emotional state – when the pain would otherwise be too intense. Had the court been more attuned to this psychological possibility – and Angel is hardly unique in this respect – it could have attempted to engage her in ways other than the failed strategies employed by her family. Following the Koori court hearing, I asked Angel how she felt. “That talk doesn’t scare me,” she said. “I get it all the time and I just ignore it.”

The NSW Bureau of Crime Statistics and Research’s examination of circle sentencing in New South Wales, and other restorative justice sentencing practices has convinced its director, Don Weatherburn, that they don’t work to reduce recidivism. (The bureau’s findings about circle sentencing contradict the assessments of Victoria’s Koori courts in reducing recidivism.) Indeed, Weatherburn makes a forceful argument in his latest book, Arresting Incarceration (2014), that spending on restorative justice practices such as conferences, sentencing circles and specialist Aboriginal courts actually diverts much-needed resources away from tackling criminality’s true antecedents: dysfunctional families and peer networks.

Advocates of the Koori court model in Victoria counter Weatherburn’s argument by pointing to the fact that there are therapeutic benefits to Koori court sentencing: the additional time allocated to sentencing discussions puts magistrates in more of a mood to consider sentencing options tailored to rehabilitative ends; Koori courts can take more of a pastoral interest in offenders by deferring their final sentence while they engage in pre-sentence rehabilitation programs; and because many of the Koori-specific services have representatives in court on allocated Koori court days, appropriate pre- and post-sentence options are more visible and available to magistrates than in mainstream court hearings, where a premium is placed on moving cases along quickly.

Aboriginal courts, drug courts, the Assessment and Referral Court List and the Neighbourhood Justice Centre are all functioning examples of what’s known as therapeutic jurisprudence. Unlike the classical criminal justice model, which is mostly concerned with establishing guilt or innocence and aims to punish the offender’s “choice” to behave criminally, therapeutic jurisprudence accepts that certain kinds of disadvantage – drug dependency, mental illness and brain damage – are strikingly implicated in offending behaviour. Working on the assumption that criminality for dysfunctional people is a symptom of their dysfunction, therapeutically oriented courts aim to address that dysfunction with intensive intervention over a period of months or years. •

This is an edited extract from Crime and Punishment: Offenders and Victims in a Broken Justice System, by Russell Marks, published by Redback

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After a few turns at pushing the glass back and forth between lettered scraps of paper, during which two jurors conversed with relatives, the evening took a turn. “Who is it?” asked Ray, the jury foreman. The glass spelt out H-A-R-R-Y-F-U-L-L-E-R, one of the newlyweds who had lived in a heritage-listed house in the Sussex village of Wadhurst until their execution-style killing a year earlier. The jury had spent the afternoon pondering the guilt of the alleged killer, so it was hardly surprising when Ray asked, “Who killed you, Harry?”

How do juries reach their verdicts? Dennis J. Devine, an American psychology professor, knows the answer for one jury, at least. Somehow, he got to perform jury service despite telling the prosecutor that the only thing he believes we can know for certain is “maybe gravity.” He still wonders whether his jury reached the right verdict. As a social scientist, he knows that making any guesses about the other roughly 150,000 jury trials held every year is about as useful as holding a séance. And yet he has written a book about Jury Decision-Making subtitled “the state of the science.”

The science Devine describes is drawn from a selection of the estimated 1500 studies of jurors published over the last six decades, nearly all (like the vast majority of jury trials) in the United States. These include the first major jury study, which was conducted in the 1950s by a psychologist, a sociologist and a legal academic from the University of Chicago. The Chicago trio not only surveyed hundreds of judges and thousands of jurors but actually taped the deliberations of five juries (with the permission of the lawyers and judges in the cases but without the knowledge of the jurors themselves). The ensuing outcry from lawyers’ groups led to America-wide laws guaranteeing that what happens in the jury room must stay in the jury room. A similar law applies in England, but — after a juror went public with the Brighton Ouija board incident — a court ruled that it didn’t extend to a juror’s hotel room.

Given these legal limits, what do Devine’s juror studies actually study? Most of them look at “mock” jurors. That is, they examine how people act when asked to play the role of jurors in pretend trials. Such studies make up two-thirds of Devine’s sample and they are indeed easy to mock. For starters, most of the pretend jurors are psychology students, whose main resemblance to real jurors is that they, too, are forced to participate. Researchers lack Hollywood’s resources when it comes to simulating real trials and many therefore opt for paper summaries of the evidence. Even the best studies, which use representative participants and true-to-life scenarios, lack the two singular features of real trials: real evidence and real consequences. Only a very special mock jury would try to commune with a fictitious murder victim.

Devine argues that there’s a major upside to this lack of realism: fake trials can be used to conduct interesting experiments. For instance, a 1976 study showed three groups of captive psychology students the same fifty-minute rape trial re-enactment with just one variation: how the judge defined the iconic term “beyond reasonable doubt.” The students who were told that they had to be “sure and certain” before they convict (as English jurors are told) were much more likely to acquit than ones who were told to consider whether any doubts they had were “substantial” or “fair” (as some American jurors were once told). Especially after the students “deliberated” as six-person juries, these differences translated into diametric outcomes on a line-ball dispute. This and later studies have been carefully considered by the top courts in the United States, Canada and New Zealand when they were developing jury directions on the meaning of reasonable doubt.

Not so in Australia. Our High Court has long maintained an absolute ban on any definition of “beyond reasonable doubt.” The two reasons for its stance — that the term is “understood well enough by the average man” and that defining it risks diminishing it — are at odds with the 1976 study. The third group of psychology students — given no definition at all, just like every Australian jury today — split evenly in their individual verdicts and were much more likely to produce “hung” verdicts as groups. Given that, it’s no surprise that Australian juries frequently ask for a definition. A jury trying three men for the 2000 murder of Melbourne lawyer Keith Allan, for example, asked their judge if “beyond reasonable doubt” meant “70 per cent or 80 per cent sure?” The three accused won a new trial because the judge failed to admonish the jury for attempting to put a number on reasonableness.

When the trio were convicted again, they complained to the High Court that their new jury (which didn’t ask for a definition) may have been as confused as the earlier one. Their timing was propitious. A year earlier, a NSW government agency published the results of its survey of more than 1000 jurors just after they had rendered verdicts in real trials. The survey asked whether they thought “proof beyond reasonable doubt” meant “sure,” “almost sure,” “very likely” or “pretty likely.” The good news is that 80 per cent picked the two most stringent definitions, suggesting that most Australian verdicts are reached on this basis. The bad news is that the High Court’s approach amounts to a role of the dice for defendants in close cases. There’s always a chance that they may get a jury consisting largely of the 20 per cent who were evenly split between “very likely” and “pretty likely.”

On this matter, unfortunately, our High Court isn’t moved by the research. Justices Susan Crennan and Virginia Bell refused even to give the trio leave to appeal. Without apparent irony, they added that they saw “no reason to doubt” that the trio were fairly tried.

The Fuller case started with a phone call. “Emergency, which service?” The sounds at the other end of the line were unintelligible. The operator kept saying “pardon?” until the sounds began to resemble squeals, followed by a bang and the sound of the phone hitting the floor. The operator listened to a few more minutes of footsteps and doors opening and closing and then logged the call as “child on the line.” The truth is almost too awful to relate.

Nicola Fuller spent the last moments of her life trying to get local police to walk just 200 yards from their station to the house she shared with her new husband Harry. She couldn’t speak clearly because her jaw had been shattered by three bullets fired at close range. Her killer calmly listened in on another phone and then entered her marital bedroom to finish her off, shooting her again through a pillow. Her father, who was the first to discover the dead newlyweds days after, vowed to sue British Telecom for crushing his daughter’s final hopes of rescue.

At the murder trial, one of the jury’s tasks was to try to work out whether the footsteps on the tape of the call were of one person (Stephen Young, the insurance broker who prosecutors said was the lone killer) or two (matching Young’s claim, backed up by two unrelated teens, of seeing a pair of strangers in the house after he knocked at the door). When one juror listened to the tape, she burst into tears and fled the courtroom, prompting the judge to discharge the entire jury. The new, more stoic jury included the quartet who later tried to solve the mystery of the footsteps with a Ouija board.

One of the main jobs of criminal trial judges is to try to keep jurors sane while they perform an alien and sometimes awful task. For instance, the judge in Young’s trial had to decide not only whether letting the jury hear the emergency call was worth the emotional cost and consequent risk of an irrational verdict (apparently it was), but also whether parts of it should be edited out (the worst parts were) and whether a witness somehow claiming to be an expert in distinguishing the sounds of two shoes from four should be allowed to tell the jury what he thought (he was). A few years ago, the US Supreme Court was asked to decide whether the music of Enya, playing in the background of a movie about the victim’s life shown to a jury deliberating whether to impose the death penalty, was soothing (assisting the jury in calmly assessing the images) or stirring (which might make them too emotional). It ducked the question.

Trial judges receive no training for their informal role of court psychologist and have no time to read up on the research (such as a recent Australian study that Devine describes which suggests that the link between gruesome photos and convictions has more to do with the fact that they are photos than their gruesomeness). For time-poor judges, the closing chapter of Devine’s book may serve as a useful primer. He draws together a range of studies to flesh out the current “model of choice” among psychologists about jury thinking. At its core is the creation of stories. Jurors come to the trial with stories already in mind based on their own experiences, gradually develop a more detailed scenario over the course of the trial and then compete to inject the main elements of that account into the discussion with other jurors. Importantly, the model’s implications — in particular, that jurors aren’t much concerned with the sources of the information they receive, almost never separate out different pieces of evidence and don’t wait out the trial before making big decisions — sit very poorly with the methods Australian judges try to use to keep jurors rational.

The news is much grimmer if you look beyond mock-jury studies to the wider field of psychology. Consider a German study that Devine’s book doesn’t cover, but which is described in Daniel Kahneman’s recent book Thinking, Fast and Slow. The researchers’ goal was to test whether the well-known phenomenon of “priming” — where people who are asked to estimate things (the population of Kenya, for example) change their guesses if a particular number (“Three million?”) is casually mentioned first — may affect legal thinking.

In this experiment, German judges were asked to perform the standard task of sentencing a thief. The researchers’ trick was to insert a pretend phone call from a journalist into the mock scenario. All the judges insisted that they totally ignored the journalist’s query about whether a certain number of years was likely. And yet the researchers found that the judges’ sentences differed depending on what number the journalist mentioned. The same happened again when the researchers told the judges that the suggestion was randomly generated. Even more astonishing, the effect was repeated when the judges were simply asked to roll some (loaded) dice and add up the numbers before issuing their sentence. When questioned about their thinking, the judges primed with a higher number emphasised the bad features of the theft and the others emphasised the sad features of the thief’s life, each oblivious to the profound impact of meaningless numbers on their professional judgement.

One Australian judge who pays attention to social science research on how jurors think is Peter McClellan, a senior judge of the NSW Supreme Court. In a 2010 murder appeal, McClellan made a surprising ruling about how jurors should be informed of the chance that two people might have the same (incriminating) DNA profile. He ruled that it is better to express that chance as the odds that someone would have the same profile (for example, “one in 1600”) rather than (as many state witnesses prefer) as the percentage of people who wouldn’t have that profile (for example, “99.9375 per cent”). McClellan’s judgement detailed mock-jury research by Northwestern University’s Jay Koehler, who found that jurors are more likely to convict under the second formulation than the first, even though the numbers are mathematically identical. As Devine explains, Koehler’s findings are consistent with the central role of stories in jury decision-making: using a percentage makes jurors focus on the fact that most people have quite different DNA profiles (which suits the prosecution case), while using the odds make jurors think about the few people who might have the same profile (which suits the defence case).

Alas, last year, the High Court gave McClellan a dressing down. His sin was reading articles about “not the law but psychology.” Chief Justice Robert French, together with the same two judges who were unmoved by the research on “beyond reasonable doubt,” held that judges shouldn’t rely on non-law studies themselves, but instead should wait for the parties to call the academics as expert witnesses. But Koehler and Devine shouldn’t start planning their down-under holidays quite yet. As the High Court well knows, no Australian criminal defendants have the spare cash to fly in an overseas academic psychologist to read out a journal article to a judge.

Having dispatched Koehler’s studies without needing to read them, the nation’s top judges went on to reject McClellan’s preference for frequencies over percentages. After all, they explained, the expressions are mathematically identical. So, how could a rational jury be affected by a meaningless difference between two numbers?

When word of the English jurors’ séance got out, the prosecution argued that it was just a drunken game. But the Court of Appeal, noting that Harry Fuller’s alleged words prompted two of the jurors to tears, overturned the verdict as a material irregularity. An op-ed in the London Times queried the court’s view of rationality: “suppose the jurors in the hotel had sought advice from their god through prayer?”

As it happens, courts routinely make decisions based on their own peculiar faith. The English appeal judges made an order barring the press from reporting the actual words Fuller spoke from beyond the grave until after the retrial. As if anyone would have any trouble working out which mystery man Fuller had fingered for his own murder the night before the jury unanimously returned a guilty verdict against Stephen Young.

Today, a trial judge would probably be relieved if a jury spent its downtime playing with a glass and some scraps of paper. All Harry Fuller told the Brighton jury was the name of his killer. He was understandably stumped by their detailed follow-up queries about the events following his death. After a few vague guesses, he directed them to the police. Two decades on, a juror seeking extra information will doubtless go to a different, much more forthcoming medium.

Devine’s jury studies largely pre-date the era of the internet. Many quaintly use made-up “slanted” newspaper articles to test how jury deliberations are affected by non-trial information. Their findings are mostly predictable — articles that tilt against the accused (as most do) lead to more guilty verdicts in close cases — but occasionally surprising. For example, exposure to media accounts dampened some jurors’ pre-existing biases in rape cases (such as an inclination to sympathise with either the defendant or the complainant). The most interesting results confirm Devine’s story model and trial judges’ worst fears: jurors make no apparent effort to ignore outside information and sometimes come to believe that what they read in the newspaper was actually evidence in the trial itself. Noting studies showing that judicial directions make little difference on these matters, Devine concludes that the only way to counter media coverage is to change a trial’s venue.

Only an American would fail to even mention the preferred solution in Australia, England and most everywhere else: censoring the media. But it is only our past that is a foreign country. Technology has given all Australians what our constitution won’t: a robust freedom to deliberate freely in public about questions before our criminal courts. Victoria’s courts conclusively demonstrated as much in 2008 with their clumsy ban on the broadcast of Underbelly, proving that judges are as powerless as TV networks when it comes to stopping Victorians from watching shows at the same time they are shown elsewhere.

That same year, Victoria’s parliament unwittingly staged a real-life jury study of its own. Partway through a long-running Melbourne terrorism trial, printouts from Wikipedia about the meaning of some key legal terms were discovered in the jury-room rubbish bin. The defendants drew on that discovery to press the same point repeatedly found in Devine’s studies: that judicial directions telling jurors to ignore the outside world (including non-Victorian media reports about the terrorism trial available online) were ineffective. Perhaps in response, parliament enacted legislation partway through the terrorism jury’s deliberations that criminalised such research by jurors. Although the jury had earlier been chastised for researching legal terms and was specifically told of the new offence provisions, a forbidden dictionary was later found in the jury room and the jury freely admitted to using it to research the same terms.

As the courts have slowly lost control, Australians have become accustomed to a bizarre public ritual in high-profile cases. The first step involves the courts, prosecutors and defence lawyers uniting in public outrage at the presence of information all over the internet that local media are forbidden from publishing, with potentially dire implications for the fairness of any future trial. The most obvious effect of these statements is to publicise the existence of such sites. The ritual’s second step occurs at the trial itself and in subsequent appeals, where courts and prosecutors suddenly part company from defence lawyers. It nearly always turns out that a fair trial can be had after all, despite the illicit information at the jury’s fingertips. Australian courts continue to insist that judicial directions (and, where they apply, criminal offences) permit them to assume that jurors won’t google.

Even when a court discovers that jurors have succumbed to temptation, it will almost always find (again contrary to virtually every one of Devine’s studies) that the verdict wasn’t affected. A disturbing example is the trial of Kathleen Folbigg, who remains just about the only mother who still stands convicted of killing her own children after each died of apparent SIDS. When it was belatedly discovered that a juror had uncovered and shared internet accounts of the young Folbigg’s having witnessed her father shoot her mother, Peter McClellan and Virginia Bell (who would later chastise McClellan for reading jury research) were in agreement: they did “not believe that there was any likelihood” that the jury would have seen any link at all between Folbigg’s previous victimhood and her alleged later crimes.

Devine begins his book by observing that “like all human institutions, the jury system is not perfect.” At the end, he predicts both “more high-quality research on juries” and “more application of what we have learned in the courtroom” and concludes: “Much more will be learned in the next fifty years about a unique societal institution that may yet represent the best way to make important legal decisions in a world without certainty.”

Others are more pessimistic about the benefits of understanding jurors. The Times op-ed about the Ouija board case observed that many think that if the veil of secrecy around the jury room were abandoned then “trial by jury would eventually go the same way.” Maybe that is why Australia’s courts steadfastly refuse to consider a vast body of research into an institution whose care is one of their key tasks.

But it is the “trial,” not the “jury,” whose frailties stand most exposed by Devine’s studies, especially the judiciary’s prized role as the gatekeeper of criminal evidence. Having destroyed the courts’ monopoly on providing information to the nation’s juries – just as it has broken the traditional media’s monopoly on the news – the internet may eventually force a choice between having serious criminal trials decided by judges on admissible evidence or by juries on all the evidence. If Australian judges stick to their traditional rules of thumb, folk psychology and finger-crossing about what happens in the jury room, then it is not at all clear whether it is jurors or trial judges who will eventually go the same way as the broadsheets. •

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