2022: Not Such a Good Year (Law)

Ben Roberts-Smith and QE2

Justice Patrick Keane retired from the High Court and Sydney-based Justice Jayne Jagot was elevated by Mark Dreyfus from the Federal Court, giving rise to a majority female court for the first time ever, but a court with a paucity of criminal jury trial experience.  Her Honour will be eligible to serve for a further 17 years.

President Chris Maxwell retired from the Victorian Court of Appeal after a stint of 17 years, making way for the Sorbonne-educated Karin Emerton P, who was appointed to the Trial Division in 2009.  Cameron Macaulay and Leslie Taylor JJA joined her in 2022.  So, in Victoria, we have female heads of the Magistrates’ Court, the Supreme Court, the Court of Appeal, and VCAT, plus a female Deputy Chief Judge in the County Court.

My senior mentor, Justice Peter Riordan, sadly retired from the Trial Division of the Court, like his colleague Paul Coghlan J; sadly because he wrote such clear and helpful judgments, often doing the hard yards to sort out and restate the law economically.  Justice Ross Robson, who along with Justice Emerton presided over parts of the David Forster professional discipline saga, also retired from the Court and joined my floor at Dawson Chambers.

The hard-working and genial Associate Justice John Efthim also retired, like his colleague Rod Ranall AsJ.  Best known for hearing c. eleven million applications to set aside creditor’s statutory demands, Efthim AsJ was also the closest we had to ‘the Costs Judge’ by the end of his tenure (most if not all of the Associate Judges were appointed Costs Judges after the retirement of Jamie Wood AsJ), bringing his former experience as a taxing officer in the Federal Court to bear.  He was also renowned as a mediator; it is said that in big business, the mantra is ‘If you can’t beat’em, Efthim’, as in — get the thing mediated by his Honour, and cauterise the pain.  Andrea Tsalamandris and Lisa Hannan JJ were appointed in 2022.  So 13 of 32 Trial Division judges (41%) are currently women, according to the Supreme Court, though Catherine Button J will jump to the Federal Court in a few days’ time.

Jason Roberts was spectacularly acquitted of the 1998 murder with Bandali Debs of two policemen in the Silky Emperor Chinese restaurant.  He had spent two decades in jail for the crime and had been granted a retrial after Ibac uncovered police misconduct associated with its investigation.

There was an equally spectacular conviction for the 1982 murder of Lynette Dawson, the subject of the no. 1 podcast by The Australian, The Teacher’s Pet‘, which was downloaded 30 million times, and uncovered new evidence about the cold case.  It suggested that her husband Chris, a former rugby star and popular school teacher, might have been the villain.  Each week, ‘The Teacher’s Trial’ podcast summarised the murder trial.  The husband was convicted on 30 August 2022 and sentenced to 24 years with a minumum of 18 in jail for the particularly sordid crime.

Novak Djokevic’s trial was livestreamed, and much watched by many who had never seen a real court case before, most of whom seem to have been impressed. Djokevic is a Serbian anti-vaxxer whose visa application was untruthful, so he was detained by the Border Force upon arrival, and his visa was cancelled. The Federal Circuit and Family Court set aside that decision, but one of the immigration ministers in the Morrison government, Alex Hawke, made the same decision the second time, and the Federal Court declined to set that decision aside.  The wheels of justice sometimes move fast: the case had been argued and decided and Djokevic was on the deportation plane within two days of Hawke’s decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, (2022) 289 FCR 21.  But in November Minister Andrew Giles granted him a visa to play in the 2023 Australian Open, which he has thrice won.

The prosecution of the Liberal staffer Bruce Lehrmann, accused of raping fellow Liberal staffer Brittany Higgins on the ministerial couch of Morrison Government  Defence Industry Minister Linda Reynolds fizzled out by virtue of juror misconduct and Higgins’s ill-health.  My curiosity remains piqued by the somewhat under-discussed detail that someone had Reynolds’s office steam cleaned in the hours after the alleged rape.  Now there is an enquiry into the debacle which also involved a civil suit against the Commonwealth which was swiftly settled for an undisclosed sum.

The trial of businessman Ben Roberts-Smith’s defamation case against The Age, the Sydney Morning Herald and the Canberra Times, and Nick McKenzie, Chris Masters and David Wroe concluded after 100 days of evidence, mid-year.  Justice Besanko’s decision, in what became a reverse war crimes trial, is reserved.  It is treated by The Guardian‘s podcast ‘Ben Roberts-Smith v The Media’.

Last year also saw an Age podcast, ‘Confession’, about the embarrassment for the Victorian legal system that flowed from the apparent East Kew murder in 2015 of Eliah Abdelmessih, in which a tin of mangoes and the Virgin Mary may have been the murder weapons.

In Dobbs v Jackson Women’s Health Organization, SCOTUS reversed Roe v Wade, such that there is no longer a constitutional right to abortion in America.  Abortions were then almost completely banned by many states.  This was not good, but scholars have conceded that there were some oddities in the overturned finding that the US Constitution, which does not mention abortion, had within it a right to it. Someone scandalously leaked a draft of the majority opinion to the press, a most unusual occurrence.  A Californian man read the draft and travelled to Justice Brett Kavanaugh’s home to assassinate him, but then chickened out of his suicide mission by calling 911 and asking police to come and arrest him.  Kavanaugh wrote a concurring opinion.  The famously silent black judge, Justice Clarence Thomas, an alumnus of St Pius X High and Conception Seminary College, did too.

Catholic Justice Samuel Alito penned the majority decision.  Ruth Bader-Ginsberg’s replacement, Justice Amy Coney-Barrett, agreed with it.  She once served as what the secretive, cultish charistmatic Catholic People of Praise until recently described as a ‘handmaiden’.  Catholic-raised but now-protestant Neil Gorsuch, who has a doctor of philosophy from Oxford on the morality of assisted suicide, also agreed.  Chief Justice John Roberts, a Catholic, concurred in the result, but said it was unnecessary to overturn Roe in order to get there.  The three liberals (two Jewish, one Catholic) left on the court dissented.  (So, two-thirds of the bench were Catholics, compared with a little more than a fifth of the US population, and 22% of the Court were Jewish, compared to 2% of the population. ) The unpopular decision probably dealt a blow to the Republicans in the mid-term elections in which pro-Trump election deniers flopped.  Women had to travel – for 8 hours for some Texans – to access abortions in Democrat states, or do it themselves with pills bought in the mail.  Mind you, a ‘green wave’ of abortion reform relaxed restrictions significantly in Latin America, notably Mexico, Columbia and Argentina, so maybe those Texans who aspire to abort might travel in the other direction.

In other SCOTUS news, a second black (protestant) Justice was appointed by Joe Biden, Ketanji Brown Jackson.

Gideon Haigh published The Brilliant Boy; Doc Evatt and the Great Australian Dissent.  Evatt was so many things: a High Court judge, the opposition leader for a decade of Menzies’ reign, Attorney-General, Foreign Minister, and the President of the UN General Assembly in which capacity he helped to draft the Universal Declaration of Human Rights.  I have never heard of an ex-High Court judge becoming a judge of another court, but having left the High Court in 1940, Evatt became Chief Justice of NSW in 1960.

(Speaking of Australia’s involvement in international institutions the creator of Edith Campbell Berry died.  She was the protagonist in Frank Moorhouse’s trilogy of novels 25 years in the writing (Grand Days, Dark Palace, and Cold Light) about a spunky young Australienne who gadded about during the creation of the League of Nations and subsequently.  Other deaths of lawyers are treated here.)

Finally, I was involved in some unusually interesting and exhausting professional discipline, professional negligence and solicitor-client costs matters.  A truly zealous livestreamed attempt to strike off a solicitor using the Supreme Court’s’ inherent jurisdiction failed, despite the Victorian Legal Services Commissioner fruitily submitting to the Supreme Court that the practitioner (against whom no dishonesty was established) had acted with ‘depravity’.  We learnt from that case that it was possible to suspend a practitioner from the Roll, a legal first from the same judge who participated in an earlier decision by the Court of Appeal to order a ‘suspended suspension’ of a barrister’s practising certificate.  The Victorian Legal Services Board’s decision to suspend the same solicitor for four years, controversially made while the strike off action was before the Supreme Court, was also reversed in VCAT by Reynah Tang who in 2022 appeared to become a key decision maker in the Tribunal’s Legal Practice List, and published elegant and scholarly reasons for decision.  Then there was a string of matters involving a solicitor the press are fascinated by, under attack by a woman who describes herself as having had an intimate relationship with him.

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