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Hearsay ... the electronic journal of the Bar Association of Queensland - Queensland Magistrates State Conference 2011

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Hearsay ... the Journal of the Bar Association of Queensland

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Queensland Magistrates State Conference 2011
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The following is a reproduction of the speech given by Richard Douglas S.C. at the Queensland Magistrates State Conference 2011 on 4 August 2011.

richard_douglas_new.jpgLawyers are important aren't they?:

Attorney General, Chief Magistrate, your Honours, friends.

Buoyed by the forensic skills we bring to bear and the neat arguments we are able to muster and master, and perhaps chuffed by the compliments of our peers, we lawyers tend to the view that our contribution to the community is significant.

That contribution, we champion, is integral to preservation of the rule of law.

I have no doubt that is the reality. But is that the perception of the general community (including, I hasten to add, our partners and non-legal friends)?

Not on your nelly it isn’t!

As much as it pains me to break it to you, at highest we lawyers are perceived by most of the community as a necessary evil! At lowest … well, best left unsaid.

All of you have heard the proposal for dispatching of lawyers posited by conspirator Dick the Butcher in Shakespeare’s “Henry VI”. But in that vein let me take you to more recent commentary in English literature.

In “Gulliver’s Travels”, Dean Swift was less than complimentary of the Bar as a profession. He wrote:

There is a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black and black is white, according as they are paid. To this society all the rest of the people are slaves.

For those your Honours who might nod ever so slightly at that characterisation, in a passage two paragraphs below that I just recited, Swift was equally disparaging of the judiciary:

The judges are persons appointed to decide all controversies of property as well as for the trial of criminals, and picked out from the most dexterous lawyers, who have grown old or lazy; and having been biased all their lives against truth and equity, lie under such a fatal necessity of favouring fraud, perjury and oppression, that I have known some of them refuse a large bribe from the side where justice lay, rather than injure the faculty, by doing anything unbecoming their nature or their office …

Perhaps Swift was an unhappy litigant at some point? I think so.

In modern legal mores, Swift’s bald cynicism towards, if not outright contempt for lawyers and the rule of law would move us characterise him as a “querelent”. Any of you who attended the annual Bar Association conference in March last year, or read the papers therefrom, would be familiar with that term.

In the same vein, apropos the judiciary, pertinent is a recent article in the Melbourne Sun Herald. In an article penned by a senior journalist by the name of Alan Howe, the following appears:

They let us down, our judiciary. When they aren't falsely nominating their innocent dads as drivers for speeding fines, or threatening perfect strangers with their dogs faeces, or scratching others' cars with keys … they are often going easy on the guilty…. It's time that all our court sentences were monitored and the performance of magistrates and judges measured. It will help identify those magistrates and judges whose decisions are most successfully appealed against, and it will allow us to counsel those whose patterns of sentencing indicate a problem understanding community expectations. It might also reveal that women are more likely to go soft on crime, even unforgivable sex crimes carried out by appalling men deserving many years in jail.

This inaccurate and uninformed comment, unfortunately, is what the judiciary often confronts and must tolerate.

Politics:

None of this deleterious opinion of lawyers, bench or bar, harboured by some journalists and the public is lost on many of our politicians.

Because of this, I suspect, in substantial part, the view abroad in politics is that there are no votes in justice, as opposed to law and order.

Look no further than the deteriorating position of legal aid funding that exists in this state and nationally.

Civil legal aid funding, pervasive when I came to the Bar in 1982, no longer exists. Spec and pro bono briefing has replaced it. Lawyers are not praised for this. Rather, by the media, they are sneered at, and accused of pure self-interest.

Legal aid in criminal and family matters steadily deteriorated in federal budgetary allocation from 1997 during the Howard administration.

That sorry decline continued under the then Rudd and now Gillard administrations. The shadow Abbott government will not comment on its proposal so change of government promises nothing certain in this sphere.

The present federal contribution would need to double to be on par, in real dollars, with the 1997 funding level.

The states say they are not prepared to bridge the gap. In addition funding from interest on solicitors trust accounts is at a low level due to the Global Financial Crisis.

The aforesaid political disposition is not confined to this country. The recent experience in England, despite necessary austerity measures, evidences a similar attitude.

Legal aid funding in the United Kingdom, post-election, was slashed by about 25%.

In addition, Lord Chancellor and Justice Secretary Ken Clarke, late last year, announced the closure, over the next two years, of about 93 (out of a total of 300) Magistrates courts and 49 County courts across England and Wales. A similar approach has been adopted in Scotland with a third of local courts closed.

Think of the impact those measures will have on the local communities, and criminal and civil litigants and witnesses, together with the legal fraternity serving those communities!

On 16 June last the English Court of Appeal dismissed a judicial review application apropos a provincial court closure, albeit with the court describing as “a powerful argument” the inimical impact such closure would have on the public and the profession.

While acknowledging the large and unacceptable budgetary deficit built up by the previous UK labor government, so much for Conservative Prime Minister David Cameron’s policy of “Big Society”!

And to think English lawyers several years ago were worried about Marks & Spencer setting up a legal department next door to their bottle shop department!

Fortunately no government or alternative government in this country is suggesting such changes in a decentralized state and country such as ours. But, unfortunately, the precedent has been established.

Sense of Humour:

Just as well that, in the teeth of all this gloom, we lawyers can retain our sense of humour, and even poke a bit of fun (and occasionally a measure of bile) at each other, be we practitioners or judges.

Indeed the truthful, if not occasionally embellished rehearsal of tales of how we treat or are treated by our legal fellows is often the tonic to get us through the working week.

Let me give you a selection of some of the stories that over the years have carried me through to Friday night drinks at work or home.

Jim Douglas:

I was Justice Jim Douglas’ associate in the Supreme Court in 1979 and 1980.

In one case before Jim a litigant company director was being surgically cross-examined by one of Queensland’s then leading silks.

In response to a particular tricky question the witness, engaged in pregnant pause before he lifted his brow towards Jim, and announced with gravitas:

Your Honour, I plead the fifth amendment.

Jim turned to senior counsel for the witness and said (in Jim’s unforgettable deep baritone voice):

Mr X, should I give your client a warning so he can properly claim privilege against self-incrimination if that is apt?

Quick as a flash the witness’s silk responded:

No your Honour, let him answer. I suspect the only crime he may have committed is watching too much Perry Mason!

Counsel are known to be a little more biting with judges on occasions, especially when a judge leads with his or her chin.

A now retired Queensland Supreme Court judge, hearing a commercial trial in which an expert engineer was giving evidence on a complex issue, was struggling to understand the evidence in chief.

Gruffly this judge, in a chiding voice, said to the counsel leading evidence:

I am having real difficulty understanding this evidence Mr X. Could you please ask your question and have your witness answer in a way which, on this topic, treats me as a congenital idiot.

Quick as a flash the counsel responded:

Your Honour, neither I nor the witness will have any difficulty in abiding your Honour’s direction.

Jeff Spender and the Quiet Counsel:

It may come as a shock to some of you that judges and magistrates occasionally are rather sharp in their treatment of barristers.

As you readjust your jaws from that audacious observation, let me give you a recent example.

Some of you may have attended the farewell ceremony last year for now Jeff Spender QC, formerly Justice Spender of the Federal Court.

Jeff was a good judge and a great contributor to law and the community.

But, with respect, if he had a weakness, he tended to form early and strong views, sometimes, to use the ubiquitous cricketing metaphor, even before a ball was bowled.

A present silk was one of a number of counsel appearing before him in a matter.

Jeff, to be plain, wasn’t enamored of the merits on that barrister’s side of the record. He was anxious to ventilate his misgivings at the earliest juncture.

At any early point Jeff thundered:

For God’s sake, Mr X, would you please speak up!

The customarily softly spoken silk retorted:

I haven’t said anything yet.

Jeff, understandably, went even more rubicund than usual in his facial hue.

Grant-Taylor on Fire:

Flack from the bench is not always unwarranted.

A former District Court chairman, Judge Bill Grant-Taylor, had a penchant for interrupting counsel in the midst of submissions or witness examination. In fact I can recall appearing before him many times where he prefaced his interruption by asking the shorthand reporter not to take down the content of his following comment.

In this vein, there was one instance, which occurred relatively early in Bill’s judicial career, which is worth the telling. It was recounted to me by John Greenwood QC and Jim Crowley QC while we waited to process at last year’s legal year opening church service at St John’s Cathedral.

Bill was presiding in an old court building in mid-western Queensland (either Dalby or Roma as I recall). So old was the building and facilities that fireplaces were located at the rear of the court and also on the bench directly behind the judge. They were in use because the sittings were taking place in the dead of winter.

After a raft of early interruptions by Bill, a further attempted interruption piqued so much the counsel on his feet that he commenced to rebuke his Honour apropos the same.

Quick as a flash Bill came back:

Sorry Mr X but I think I’m on fire!

Somehow Bill’s robes had managed to get too close to the fireplace. Bill was quickly extinguished, in every sense.

Lord Russell:

If a barrister does transgress, there is often good reason for a judge or magistrate reproving him or her timeously, particularly if the barrister is a smart customer.

A good example of that is evidenced by the exchange between Lord Russell of Killowen and Mr Justice Denman. It is recounted by Lord Birkett in his very readable 1960 BBC slimline book “Six Great Advocates”.

Sir Charles Russell QC, as Lord Russell was at the Bar, was an Ulsterman of Roman Catholic stock. Interestingly he practiced mainly out of chambers in Liverpool.

Such were his qualities, including his considered bravery as an advocate, Lord Coleridge said of him:

He is the biggest advocate of the century and the ablest man in Westminster Hall.

His reputation was of not hesitating for a moment to stand up to any judge and, if the need arose, to address the judge with vehemence if he thought the rights of the advocate were invaded.

On the relevant occasion, late in the day, he addressed angry words to Mr Justice Denman for, he considered, an unnecessary intervention.

His Honour retorted that he could not trust himself to reprove Russell that night because of his sorrow and resentment at what Russell had said, but would adjourn the court and consider what to do next morning.

The next morning when the learned judge began to refer to the “painful incident” of the previous night, Russell broke in and said:

Do not say a further word, my Lord, for I have ever dismissed it from my mind.

The crowded court dissolved in laughter at Russell’s bold and utterly unexpected intervention. Even the offended judge joined in.

It is difficult to think of another advocate who would have dared to reprove the judge at night and then appear to forgive him the next morning!

That said, Peter Connolly QC springs to mind.

Judge Finn:

Some conduct of judges on the bench, however, is meant properly as pure fun.

Former Judge Vince Finn, of Townsville, used to play a prank upon newly inducted article clerks.

The clerk’s master, a party to the cabal, used to send the clerk to Vince’s chambers on a pretext.

As the clerk entered, Vince would don a sash which read “Best and Fairest” and placed on his chamber desk a large sign which read “no spitting”.

Vince would then invite the clerk to state his business.

After initial puzzlement, most of these clerks realised they joined a profession not wholly founded upon pomp and circumstance.

The fag system being what it is, a succession of clerks ran the Finn gauntlet during his Honour’s career.

Jeff Spender and his Plaques/Signs:

Judges, too, can be tough on their own.

Those of you who attended Jeff Spender’s valedictory ceremony will forgive me if I rehearse one tale, relayed to the throng quite theatrically by Michael Stewart S.C. speaking as Vice-President of the Australian Bar Association.

Jeff was the Chief Judge in Queensland and often acted as Chief Justice.

Michael spoke of a plaque which was prominently displayed on Jeff’s judicial chamber wall, readily visible to his junior judicial colleagues, whether from the Queensland or from interstate registries when he was Acting Chief Justice.

The plaque read:

The floggings will continue until morale is restored!

It says it all doesn’t it!

Jeff, a bon vivant had another sign given to him by an associate which was on his desk:

Out to lunch, but if not back by 5 pm, out to dinner too!

Conclusion:

I wish you well for the balance of your retreat.

This court has a challenging time ahead of it, in the criminal and civil spheres, with the passage of the Moynihan legislation.

The Queensland bar stands at your side in order to achieve just outcomes.

So too, I believe does the Deputy Premier and Attorney General. I thank you, Paul, for the enthusiasm and insight you have brought to your portfolio as Attorney. If together we can fix the access to justice problem that exists in this state and across the nation, our society will be better served.

Your Honours, finally, and humbly, I would remind you to be alive to the fact that occasional lapses in the bar’s performance are not always due to lack of industry on the part of the barrister concerned. Often they are a function of late or poor briefing, or occasional client impecuniosity.

Thank you for inviting me to speak to you this evening.

 



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