Criminal proceedings against the judge
The criminal proceedings against Mr Justice Murphy, which took place in 1985 and 1986, gave rise to a disagreement between the Senate and the Supreme Court of New South Wales about the use which could be made in the court proceedings of the evidence given before the two Senate committees. This disagreement led to the passage of the Parliamentary Privileges Act 1987. For an account of the disagreement and the provisions of the Act, see Chapter 2, Parliamentary Privilege.
In accordance with the law of New South Wales the prosecution of the judge began with committal hearings before a magistrate, who heard the evidence to decide whether the accused should be sent for trial by jury in the District Court or the Supreme Court of the State. After committal proceedings, Mr Justice Murphy was committed for trial in the Supreme Court. He unsuccessfully attempted to have the Federal Court review the magistrate’s decision to commit him (Murphy v DPP 1985 60 ALR 299).
The justice, who gave evidence and was cross-examined in the trial, was convicted by a jury in the Supreme Court in July 1985 on one charge of attempting to pervert the course of justice, the charge relating to his alleged approaches to Mr Briese. He was acquitted of the charge relating to his alleged approaches to Judge Flannery. He was then sentenced to eighteen months imprisonment and released pending the hearing of an appeal.
As a result of that appeal, the conviction was quashed because of legal and procedural deficiencies in the original trial, and a new trial in the Supreme Court was ordered.
The second trial on one charge of attempting to pervert the course of justice, in April 1986, was restricted to matters relevant to that charge. The prosecution could not refer to the judge’s alleged approaches to Judge Flannery of the District Court in relation to the trial of the solicitor, Morgan Ryan, which were the subject of the other charge of which the judge had been acquitted. Other evidence which had been admitted at the first trial was excluded. In the second trial the judge chose not to give evidence but exercised the right, afforded to accused persons under the law of New South Wales, to make an unsworn statement to the jury upon which he could not be cross‑examined. There was, therefore, no opportunity for the prosecution to cross‑examine the judge on the statement which he made to one of the Senate committees, as had occurred in the first trial. The main prosecution witness, however, was again cross‑examined on the basis of his evidence to the committees.
The result of the trial was that the judge was acquitted of the one remaining charge, but that was far from the end of the allegations against him. It was revealed that, on the basis of other evidence which had come to light during the trial, the prosecuting counsel had recommended that the judge be prosecuted on charges of bribery and conspiracy, again relating to alleged attempts to influence the outcome of criminal inquiries and proceedings. The Director of Public Prosecutions declined to act on this recommendation for reasons which were not disclosed, but there were demands that the matter be cleared up, in conjunction with outstanding allegations arising from the transcripts and tapes of telephone conversations which were the beginning of the whole affair.
In May 1986 a royal commission, the Royal Commission into Alleged Telephone Interceptions, which had been given the task of examining those transcripts and tapes, reported. It concluded that the materials were what they purported to be: tapes and transcripts of telephone conversations which had been illegally intercepted by New South Wales police officers. The Commission concluded:
The interceptions were put in place and maintained by otherwise honest, able and effective members of an elite division of the New South Wales Police force engaged not in the pursuit of some private purpose but in the very difficult and often frustrating fight against deeply entrenched organised crime. Indeed, it has been suggested in evidence that it was out of a sense of frustration that this unlawful method of gathering information was adopted. (PP 155/1986, p. 337)
This report put an entirely new light on the whole affair. Hitherto those who had defended the judge and resisted an inquiry into his conduct as purportedly revealed by the tapes and transcripts had done so largely on the basis of the unauthenticated nature of the materials. The first Senate committee had been unable to draw any conclusions from those materials because it was not able to authenticate them.
There was also the question of whether the judge’s conduct in his dealings with the New South Wales chief magistrate and Judge Flannery had amounted to misbehaviour as distinct from the criminal offence of attempting to pervert the course of justice, of which the second jury had acquitted him.
Mr Justice Murphy expressed his intention to resume his seat on the High Court, but it was reported that there was some disquiet on the part of the other justices of the Court about his resuming his seat with the new and the old allegations unresolved. There were apparently discussions between the justices and Mr Justice Murphy and the Chief Justice and the government, but the exact nature of those discussions is not known and were the subject of some disputation.
The government then decided that a new inquiry should be established to deal with all outstanding allegations against the judge and to determine whether he had engaged in any conduct amounting to misbehaviour within the terms of the Constitution and warranting his removal from the bench.
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