Mur­phy ‘right’ to dodge the box

The Australian - - THE NATION - NICOLA BERKOVIC LE­GAL AF­FAIRS CORRESPONDENT

The bar­ris­ter who suc­cess­fully de­fended for­mer High Court judge Lionel Mur­phy on a charge of per­vert­ing the course of jus­tice has hit back at those who have long crit­i­cised the judge for de­clin­ing to give sworn ev­i­dence at his crim­i­nal trial.

For­mer North­ern Ter­ri­tory so­lic­i­tor-gen­eral Ian Barker QC said Mur­phy would have been fool­ish to be­come a “sac­ri­fi­cial lamb” for pros­e­cu­tors who were out to de­stroy his rep­u­ta­tion.

The fed­eral par­lia­ment last week re­leased al­most 6000 pages of ma­te­rial gath­ered by a par­lia­men­tary com­mis­sion of in­quiry into Mur­phy’s fit­ness to re­main a High Court judge.

The ma­te­rial in­cluded sen­sa­tional but untested al­le­ga­tions that Mur­phy bribed a po­lice of­fi­cer and used his in­flu­ence to help crime boss Abe Saf­fron win lu­cra­tive gov­ern­ment con­tracts.

The in­quiry was shut down in Au­gust 1986 when it emerged Mur­phy was ter­mi­nally ill. He died that Oc­to­ber.

Mr Barker, 81, said he be­lieved the doc­u­ments should not have been re­leased be­cause they were full of un­proved, sala­cious and ma­li­cious ac­cu­sa­tions and re­lated to events from many years ago.

“He may well have been in­ju­di­cious in his choice of friends and venues, but it’s not a crim­i­nal of­fence to stray be­yond com­monly held con­cep­tions of pro­pri­ety,” he said.

In 1986 Mr Barker led a le­gal team that suc­cess­fully de­fended Mur­phy on a charge of per­vert­ing the course of jus­tice for ask­ing a mag­is­trate about his “lit­tle mate”, Syd­ney so­lic­i­tor Mor­gan Ryan.

Mur­phy had ear­lier been con­victed of the charge but ap­pealed and was ac­quit­ted at a sec­ond trial, at which he de­cided not to give sworn ev­i­dence.

Nick Cow­dery QC, who was in­volved in pros­e­cut­ing Mur­phy, last week said it was “un­think­able” and “dis­grace­ful” that the judge had cho­sen not to take the stand.

But Mr Barker said it was “com­plete non­sense” that Mur­phy had been crit­i­cised for this de­ci­sion for so many years.

He ar­gued that the for­mer judge and at­tor­ney-gen­eral had acted in a “per­fectly proper way”.

It would have been fool­ish to en­ter the wit­ness box when the charges against him were weak.

“Why should we have made it any eas­ier for the crown?” he said.

“The pros­e­cu­tion was pre­par­ing to at­tack his char­ac­ter in ways which were quite be­yond rel­e­vance to the charge at is­sue. It would have been un­wise and un­nec­es­sary.”

As a High Court judge, Mr Barker said Mur­phy had been ahead of his times.

Al­though Mur­phy had been scorned at the be­gin­ning of his ju­di­cial ca­reer, he had ap­proached cases in a mea­sured and proper way and his judg­ments had with­stood the test of time.

Mr Barker said that be­fore 1999, when the law was changed so that de­fen­dants could no longer give unsworn ev­i­dence, it was a per­fectly le­gal and ap­pro­pri­ate course of ac­tion to take.

Mur­phy

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