Some 1970s encounters in Magistrates Courts in Victoria

Excerpted from A Life In The Law by Nimal Wikramanayake

When I went to the Bar in 1972, I found appearing before the stipendiary magistrates and the justices of the peace extremely difficult because a number of them were bigoted, obstinate, obdurate and racist. Fortunately for me, there were a few judicious ones like Jack Maloney and Alec Vale. There were also a few of them who were kind and generous to me like Kevin O’Connor, Ernie Daniher and Ken Pummeroy. But the justices of the peace were in a class of their own.

They were layman and laywomen. The less I say about them the better. These men and women had no legal training and knew nothing about the law. They usually consisted of the butcher, the baker and the candlestick maker and, believe it or not, they were appointed to hear summary criminal cases.The sad part of it was that in my practice, I was not even paid danger money for appearing before these miscreants.

I remember very early in my career at the Victorian Bar appearing before the justices at the Broadmeadows Magistrates’ Court. It was in the middle of 1973 and I was able to demolish the prosecution case without any difficulty. I submitted to the justices of the peace that my client had no case to answer, as none of the ingredients of the offence had been established against him. I addressed the two wise men, referred to the burden of proof in criminal cases and the fact that the prosecution had to prove its case beyond reasonable doubt. I then cited a judgment of Mr Justice Menhennitt and asked the justices of the peace to apply the principles laid down by His Honour in the case I had just cited and acquit my client.

What happened next was, to say the least, absolutely startling. The presiding justice said: “We set aside the judgment of Mr Justice Menhennitt. However, since there are so many ifs and buts, we will give the accused a bond’

I stood there speechless, but as my client had been given a bond the result was satisfactory. There is a principle of law known as stare decisis under which a judge is bound to follow a decision of a superior court unless he or she can establish that the judgment of the superior court was clearly wrong. In this case, however, the justices were bound to follow the Supreme Court judge’s decision and had no right to question its correctness as they were a lowly, inferior court. Not only did they not follow His Honour’s decision – they set it aside. This is what we had to put up with. This was absolutely scandalous.

Madam de Farge sat daily in one of the Magistrates’ Court, and although she did not have knitting needles, she had a blue rinse in her hair and dispensed justice mercilessly. All of us young barristers dreaded the thought of appearing before her, for our clients were invariably found guilty.

All this was to change when Jim Kennan became Attorney-General early in the 1980s. With one stroke of the pen, he abolished the office of the stipendiary magistrate and removed the right of justices of the peace to sit and hear cases in the Magistrates’ Court. He replaced them with magistrates who were required to be qualified barristers and solicitors who had served an appropriate term of years.

It was a mystery to me as to why this peculiar system of administering justice was permitted to continue for over a hundred years in Victoria. Nearly all of the great lawyers in Victoria, and long before my time, had to serve an apprenticeship in the Magistrates’ Court and they had to endure the magistrates and justices of the peace, but they did nothing to have this dreadful system of administering justice replaced in Victoria. We will never see the likes of an Attorney-General like the late Jim Kennan in Victoria again.

By the middle of 1974 I had been at the Victorian Bar for nearly two years. I was now accustomed to the rough and tumble in the Magistrates’ Court which we young barristers called the “bear pit”.

I had been briefed by my friend Ronny de Kretser to appear for a Mr Chamarrette, a migrant like me, who had come out to Australia in the 1960s. Chamarrette had been a major in the Indian Army and was an extremely prim and proper gentleman, right up to his enormous, curved military moustache.He had been charged with driving over the speed limit of 60 km/h in Canterbury Road, Camberwell. Chamarrette was a ruddy-faced Anglo-Indian gentleman and his face got ruddier and ruddier as he explained the circumstances of his apprehension to me and related his story in my chambers.

He instructed me that he had been driving in an easterly direction along Mont Albert Road and turned right and drove in a southerly direction until he reached Canterbury Road. He then turned left and had driven about 100 metres when he heard a police siren and a police car drew up alongside him. The policeman beckoned him to pull up at the kerb. When he got out of his motor car, he enquired what he had done wrong. The constable informed him that he had been travelling over 60 km/h in a 60 km/h zone.

Chamarrette was livid. He told the constable that he could not have reached the speed of 60 km/h when he turned into Canterbury Road, as he had traveled less than 100 yards when he was apprehended. Anyway, the upshot of it was that I had a brief to appear at the Camberwell Magistrates’ Court for Chamarrette.

I arrived at the Camberwell Magistrates’ Court at 9.30 am and had a further short conference with Chamarrette. We then adjourned into the main court room where Mr Alec Vale, the magistrate, was sitting. A case had been called up and a police constable, Constable Malone, was giving evidence. The late Brian Bourke, the lion of the Criminal Bar, got up to cross-examine the witness. With a few short, sharp, pointed questions, Bourkie destroyed the credibility of the witness and the magistrate acquitted the accused.

Shortly thereafter my case was called up, and my heart sank. Alec Vale could not hear my case and it was sent before the justices of the peace. I went into a little room at the back of the court house where the two justices were sitting. My case was called and I marked my appearance. Lo and behold, the chief prosecution witness was Constable Malone, the same constable who had given evidence in Bourke’s case.

After he gave his evidence, I got up, looked him squarely in the eye and said, “Constable Malone, a short while ago you were cross-examined by Mr Brian Bourke in a case that was being heard before the magistrate, Mr Alec Vale” Constable Malone nodded. I then said, “Isn’t it a fact that Mr Brian Bourke demolished your evidence and the accused was acquitted?”

Constable Malone answered “yes” to this question. The presiding justice then interjected and said, “Mr Wikrama, are you attacking the credibility and the veracity of this witness?” I replied, “Yes”.

The justice of the peace then made a most astonishing statement: “Mr Wikrama, let us tell you here and now that as far as we are concerned, Constable Malone is a fair, just and an honourable man”

I was aghast. I replied, “What!”

The presiding justice then said, “Mr Wikrama, I don’t suppose you want us to hear this case’

I replied, “Certainly not, no way known”

The case was then adjourned for further hearing before the magistrate Alec Vale. I began putting my files in my attach case when the justice of the peace, Ridgeway, looked up at me and very patronisingly said, “Mr Wikrama, it is fairly obvious that you have arrived in this country recently.”

“Yes”. He then said, “Mr Wikrama, let me give you a piece of advice. In this country it does not pay to attack the police”

I was dumbfounded, for I was there for no other reason than to attack the police constable. I quickly collected my wits, opened my attache case and took my brief out, then in a loud stentorian tone said, “The justice of the peace informs me that in this country it does not pay to attack the police,” and wrote these words in large letters on my brief for the justice to seek. I then bowed and went before the magistrate. I was angry. It is one of the functions of a barrister doing criminal work to attack the police witnesses and to destroy their evidence.

When my case was called before the magistrate, Constable Malone again got into the witness box and gave his evidence in chief. I got up to cross-examine him. I called for his notebook and, to my surprise, noted that during the past two weeks he had taken up a position in Canterbury Road, a short distance east of where he had booked Chamarrette. He would arrive there at 5 o’clock and leave at 6.30 every evening. On every day in those two weeks, he had booked one person between 6.15 and 6.30 pm.

Using this useful bit of information, I proceeded to tear holes in Constable Malone’s evidence. I suggested to him that it was in his interest to book a number of speeding motorists every day, for it would enhance his prospects of promotion by showing that he was a diligent police constable. He denied this. I suggested to him that he would look good in the eyes of his superiors if he booked at least one person every day. He denied this.

He agreed with me that Canterbury Road was a busy road and he said that he would book a number of motorists speeding every evening. I then asked him to look at his notebook and tell me how many motorists he had booked every evening in the past two weeks. He grew a lighter shade of pale and remarked, “Only one”

And I responded, “And that was shortly before you returned to the station.” He agreed. After that he was putty in my hands.

Chamarrette then got into the witness box and, to say the least, was extremely impressive. He was a large man with an equally large military moustache. He stated that he had been in charge of a motor transport division to the British Army in a particular area in India during World War II and was more than familiar with speedometers and speed limits. When he concluded his evidence, the magistrate dismissed the charges against him, and I returned to my chambers.