Reviewed by Paul Henderson
The Trials of Justice Murphy By Stephen Walmsley,
- Publisher: LexisNexis Australia, 2017
- ISBN: 9780409345414
- ISBN (ebook): 9780409345421
*The Sydney Institute is selling limited signed copies ($70) email us at firstname.lastname@example.org to order
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Lionel Murphy had an exciting and extraordinary career in public life – in law and in politics. In both areas, he reached a high position; in law as a High Court judge and in politics both as Leader of the Opposition in the Senate and then as attorney-general in the Whitlam Labor Government. In both areas, his career was not without a degree of drama and publicity.
It is not good for any political party to be in opposition for 23 years, as the Australian Labor Party was from 1949 to 1972. When the ALP won government at last in December 1972, not one ALP member of parliament had previously been a minister. In my opinion, the Whitlam government had some effective ministers (Gough Whitlam, Lance Barnard and Frank Crean), some ineffective ones (Rex Connor and Jim Cairns) and some real mavericks (Moss Cass, Al Grassby and Murphy). Lionel Murphy was involved in controversy as a minister, such as with the “no fault” changes to the Marriage Act and the “raid” he led on the Australian Intelligence Security Organisation (ASIO). Murphy was controversial as a minister; he remained so as a judge.
Stephen Walmsley has written a very detailed book about the charges laid against Murphy, the subsequent investigations and the trials that followed. In 1985 Murphy stood trial in the NSW Supreme Court, before Justice Henry Cantor, on the charge of attempting to pervert the course of justice. On 5 July 1985, he was found guilty on one of two counts – that which related to Clarence Briese. He was sentenced to 18 months (maximum) and 10 months (minimum) imprisonment. He was bailed and the decision was overturned by the NSW Court of Criminal Appeal which ordered a new trial. The Second Trial took place in 1986 before Justice David Hunt. The jury returned a not guilty verdict on 28 April 1986.
The Trials of Justice Murphy is a masterpiece on the aspect of Murphy’s career as a High Court judge. It is full of detailed information as, for example, the chapter on the First Trial which itself stretches over close to 200 pages. Not nearly as much space is devoted to the Second Trial, since many of the details are the same as the first trial.
The story started when NSW Police tapped into the phone of Morgan Ryan, a Sydney solicitor. The result was that Ryan was committed to trial and later found guilty of conspiring to effect a lawful purpose by unlawful means. He was cleared on appeal. The story becomes more interesting when it was found that Ryan had engaged in conversations with two judges, Justice John Foord (of the District Court) and Murphy, the latter being a close friend of Ryan.
The Age and the National Times published the contents of these tapes. Soon it became public knowledge that Murphy was the judge who had contacted Ryan.
Understandably, this was a bombshell and action happened quickly. Justice Donald Stewart headed a Royal Commission, and a Senate Inquiry followed. Solicitor General Ian Tempy also looked into the matter. Later, the Senate set up a second inquiry. Stephen Walmsley covers all of these issues in detail.
Of particular interest was whether Murphy had acted unconstitutionally. Section 72 (ii) states that a High Court judge can only be removed “on the grounds of proved misbehaviour or incapacity”. The author has added an Appendix to examine the intricacies of this section. The Senate Committee did not think there was sufficient evidence for a prima facie case of “misbehaviour”. However, the Second Inquiry made adverse findings against Murphy.
At this stage, people were starting to take sides; about the alleged actions of Murphy, whether he was innocent or not and, not surprisingly, whether Murphy should stand aside and/or resign from the High Court.
Two very prominent men in the legal circles of NSW, namely Chief Magistrate, Clarence Briese, and Judge Paul Flannery (of the District Court) were prepared to support the Crown as whistle blowers, stating that Murphy had contacted Ryan and had used the comment “…and now what about my little mate? [namely Ryan]”. About the same time, there were allegations against another judge, and a friend of Murphy, Judge Foord. Murphy strongly defended himself against Flannery and Briese.
Walmsley has dealt with difficult material very well. He has traced in detail the wide range of opinions from numerous people and the media, on the issue as to whether Murphy was guilty or otherwise. In his preface, the author writes, “I have tried not to judge” and certainly he has not judged. It is a clinical, detailed account of what happened, with the author keeping his own views to himself. This is one of the many strengths of the book.
When Murphy was committed to stand trial, there were more calls for Murphy’s resignation. The first of Murphy’s trials was heard before Judge Cantor. Walmsley covers this in detail, perhaps too much detail. Too many pages are devoted to the transcript of what happened. Since the author provides summaries between these transcripts, perhaps they could largely have been left out.
Walmsley deals at length about the meetings, social occasions and phone calls between all the relevant players, such as Murphy, Foord, Briese, Flannery, Jim McClelland and Ryan, including the contradictions and different interpretations of such events. All of these details were repeated in the Second Trial. To his credit, the author at no stage offers his opinion as to which of these people gave the better evidence or who should and should not be believed.
The lawyers for Murphy called many character witnesses. Murphy, having been found guilty of one of the two charges, and his lawyers immediately appealed against the sentence. As to be expected, Labor thought Murphy innocent, and the Coalition thought him guilty. Walmsley shows very clearly the pressure jurors are under in such a case. Murphy was on bail until Judge Cantor decided the sentence.
The defence went on to win an appeal on the grounds that Judge Cantor erred in instructing the jury not to take into account the character references made in favour of Murphy. Walmsley devotes many fewer pages to outline the Second Trial, before Judge Hunt, but he gives details about the various arguments given by the prosecution and the defence.
Again, without taking sides or giving his own opinion, Walmsley describes the conduct of NSW Premier Neville Wran, who made a thinly disguised threat about Briese keeping his position as chief magistrate. He outlines how, many years after the Murphy case, Jim McClelland admitted he had committed perjury in supporting Murphy. The NSW Supreme Court judges made a remarkable intervention to defend Briese. McClelland and Wran do not come out of this at all well.
A new Royal Commission of Inquiry was set up under Justice Stewart about Murphy, while Prime Minister Bob Hawke also set up an inquiry. While this was going on, Lionel Murphy, amongst much controversy, returned to the High Court. He died soon after.
Readers will really enjoy this book. It is comprehensive and well put together. As to who was telling the truth, or not, there will be different opinions. However, my view is the same as that of the Senior Crown prosecutor Ian Callinan in the First Trial when he said why would Briese and Flannery give the evidence they did as they “… had nothing to gain from the proceedings” but “… had their motives questioned and their lives disrupted”.
Paul Henderson is an author and educator