Murphy ‘right’ to dodge the box
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.