Some courtroom encounters in Victoria

Excerpted from A Life In The Law by Nimal Wikramanayake

It was now late in the year 1976. I made a calculated decision that I was not going to appear any more in the Magistrates’ Court. I was not going to put up with the boorish behaviour of the magistrates, nor was I going to appear before the justices of the peace. My clerk, Wayne Duncan, was horrified and told me that I would probably starve the following year if I refused to appear in the Magistrates’ Court. I had received a negligible number of briefs from him and if I had relied on him, I would probably have starved for the 16 years that I was on his list.

In December 1976, I was briefed to appear for a man who was accused of fathering a child. Unfortunately, the client was not able to see me before the matter came up for hearing but was able to see me on the day of the case. Despite my misgivings about the Magistrates’ Court, I continued to appear there. I turned up that day and asked Magistrate Moon to delay the matter for an hour so that I could obtain instructions. I duly obtained these instructions and went back into court at 11 am.

My opponent was full of righteous indignation and told me that he was going to fix my client up for the dreadful thing my client had done to his poor lady client. One lesson my father taught me in my early years as an advocate was never to get personally involved in my cases as it would affect my health. My opponent could have done with this advice. He was metaphorically foaming at the mouth. My client was a married man who had a beautiful home in Frankston and my instructions were that the woman had been sleeping around with other men, and that she was a “gold digger.’

When the case was called, my opponent led his evidence. The complainant was an extremely attractive, willowy young lady of Eastern European appearance. After she gave evidence in chief, it was my turn to cross-examine her. I got up, leered at her and said, “Madam, I suggest that you are a common prostitute, and that you would sleep with any man who was available.”

My opponent bounded to his feet with howls of protest. The magistrate started shouting and screaming at me, telling me that I had no business putting such a horrible question to such a lovely young lady. By this stage I had decided that I was not going to put up with any more rudeness from magistrates and I told Magistrate Moon that he was not entitled firstly to raise his voice at me and that he should keep his voice down when addressing me, and secondly, I told him that it was my case that this woman was a loose woman who had slept with many men, including my client. Any one of these men could have fathered the child and I would establish it.

I then cross-examined the lady for about three hours. I began in a fairly gentle manner but it was a rather excruciating experience for her. I suggested to her that on one occasion she was having intercourse with my client in Ballarat late at night in the front seat of his semi-trailer. My client was employed as a truck driver. ‘Ihis act of intercourse was carried out on one of the main streets of Ballarat, the town was sleeping and the street was deserted. When they heard several cars driving up to the semi-trailer, my client sat up in the driver’s seat while the girl slipped under the dashboard.

There were two carloads full of young men who walked up to the truck. One of them asked my client whether he was “fucking the young lady” whom he mentioned by name. Before my client could reply, the young man said, “I would suggest that you get stuck into her because she is no better than a common prostitute.”

When I put this little incident to the complainant, she vehemently denied that the young man had used such words to describe her. I then asked her whether he had used any words to describe her and her response was: “Yes, he told your client to fuck me, as I was the town bike,’ After that, I raised my voice and began to attack her. I took her to a number of incidents at a number of parties she had attended where she had walked out of the room where the party was being held and into a bedroom where on different occasions she had intercourse with a number of different men.

I mentioned to her that I had several witnesses who were going to testify to these facts. She then readily admitted them and I sat down at 3.45 pm, thoroughly satisfied with myself.

Magistrate Moon enquired from my opponent whether he had any other witnesses, to which my opponent replied “No.’ Magistrate Moon then told my opponent, “In that case, I am going to dismiss your complaint as any one of these men could have fathered that child.” My opponent was distraught.

I quietly slipped out of court with my client. That was the end of my practice in the Magistrates’ Court.

The year 1977 started well and I soon began collecting other solicitors. My dear friend, Egils Stokans, a young solicitor who was a partner in the firm of Kahn and Clahr, had now begun to brief me extensively in the County Court. I had picked up a number of other solicitors and things were beginning to look up.

In the middle of the year I got a brief to appear in the County Court for a plaintiff in a timber contract case. My client had been cutting and hauling timber for a timber contractor and had not been paid for the work he did. The case came up before Judge Arthur Adams in the County Court. Judge Adams was an eccentric judge ant was on the verge of retirement. I had appeared a couple of years earlier before him in a fairly unusual traffic case.

On that earlier occasion my client, a Sinhalese man like me, was charged with refusing to take a breathalyzer test. He had a most unusual defence for refusing to take the test, a defence unknown to law. He had played in a cricket match at a club in Rosebud and after the match had a couple of beers and then had a hamburger for dinner. He told me that the hamburger had onions and onions usually made him violently sick.

He was driving back home when he felt sick. He stopped the car, opened the door and vomited all over the road. He then sat back in the car and fell asleep. He was rudely awakened about two o’clock in the morning by a police constable flashing a torch in his face. The constable asked him whether he had been drinking and he replied yes, that he had had a couple of beers, and then related his unusual story. The constable started laughing and said, “Don’t give me that shit, you rotten little black bastard. Get out of the car and take a breath test’

My client said that he was incensed at this statement by the constable and refused to take the breath test because he was not prepared to be subjected to this racist abuse. When the case came up for trial before Judge Adams, he appeared on the bench with his wig askew. His bands were at a 70-degree angle to his collar and he had buttoned his jacket in the wrong buttonholes.

The constable gave his evidence. When I started cross-examining him, I put my client’s version of the events to him. Judge Adams was outraged that I could put such nonsensical allegations to a fine upstanding constable, and he told me that there was no racism in this wonderful country of ours. I ignored his outburst and continued with my cross-examination. I again put a question to the witness and again Judge Adams exploded, saying, “That is a stupid question – in fact it is the stupidest question I have ever heard”

I looked him the eye and said, “Your Honour, my client is seated behind me and when you tell me that I am putting stupid questions to the witness, he will think that he has retained a blithering idiot to appear for him.” Judge Adams was suddenly quite contrite and said, “I am sorry, Mr Wikrama, I will not make any comments about you again and I will not interrupt you in future”

A few minutes later while I was cross-examining the constable, he interrupted me again. I said, “Your Honour, you promised me that you would not interrupt me again and now you have broken your promise to me.’ He was very contrite and told me that he would not interrupt me again.

I then put my client in the witness box and led evidence from him that he had recently migrated to Australia from Sri Lanka. He was working at several jobs, firstly as a clerk in a suburban firm in Melbourne, secondly, he waited on tables in a restaurant several nights a week, and thirdly, he played drums in a band on some Saturdays in the month.

Judge Adams looked at me and said, “Mr Wikrama, how can you raise allegations of racism in this country when see what a wonderful life your client has in this great country of ours? In fact, I heard on the grapevine that you are now editing Louis Voumard’s great work. As a coloured man, shouldn’t you be grateful for the wonderful breaks you are getting in this country?”

The upshot of it was that at the end of the case Judge Adams dismissed the complaint against my client. I was astonished that no one asked my client why he ate a hamburger with onions if it made him sick.

I had done several timber-contract cases in Ceylon, and in Australia I kept referring to the forest as “the jungle” for in Ceylon one cut timber in the jungle, so Judge Adams kept referring to me as the jungle-man’. Once when I was doing a timber contract case before Judge Adams, I put a question to one of the witnesses, and the word “hammer” came up. Judge Adams queried the word and asked me to spell it. I then proceeded to spell it out for him: “Etch- a-m -m -e-r”.

Judge Adams said, “Mr Wikrama, in addition to being incompetent [all barristers who appeared before him were incompetent] you don’t even know the English language. It is not etch but haitch “

I then adopted my best Cambridge accent and told His Honour, “Your Honour, I was educated at a small University in England called Cambridge, which you probably have heard of. I sat at the feet of two great jurists, Cecil Turner, the author of Kenny’s Outlines of Criminal Law, and Tell Ellis Lewis, the editor of Winfield on Tort. These learned gentlemen told me that the word was “etch”, and it was only the cockneys in East London and the Irish who called it “haitch” As Your Honour pleases, witness, would you mind answering the question.”

Judge Adams was, of course, Irish. He looked at me aghast and did not interrupt me for the rest of the case. Not only that, bless his little cotton socks, the good man entered judgment in my favour. He then did a startling thing. He refused my client his costs on the ground that he was not entitled to them as he was “muddle-headed.” Of course, we appealed to the Court of Appeal on this particular point and the other side cross-appealed.

The matter came up on appeal towards the end of the year and Sir George Lush, who was presiding in the Court of Appeal, looked askance at me and asked whether I had made a mistake in my petition of appeal. I said no, the reason why my client did not get his costs was that he was “muddle-headed” The appeal on costs was allowed and my client got his costs in both courts.

This case had its lighter side. During the proceedings, I developed a high fever. My temperature was 102°F and I was quite ill. Judge Adams looked at me and said, “Mr Wikrama, I am sorry to have to mention it but you look off-colour, you look extremely pale.’ I told him that I was running a temperature of 102°F and he very kindly said that he would adjourn the case to the following Monday.

At this point, Mr RC Taylor, a florid, ruddy-faced “ocker” solicitor from Frankston who was the instructing solicitor for the defendant, sprang to his feet and objected vehemently to the judge granting me an adjournment. He told him that there was no reason why the matter should be adjourned as he had fought in the jungles of Papua New Guinea with an extremely high temperature. He told Judge Adams that there was no reason why I could not conduct the case with a temperature of 102 °F.

Nevertheless Judge Adams adjourned the case to the following Monday and of course as I mentioned, I duly won it. Judge Adams retired shortly afterwards and a few years later while I was returning to the car park after the Flemington races, I heard a shout, “Ah, my jungle friend!” It was dear old Arthur Adams.

Later on in 1977, I received another buffet of fate. My dear friend and chief supporter, Noel Rice, decided to retire at the age of 68 and had sold his practice to two young solicitors. After they bought the practice, one of these gentlemen took me out for lunch and we had a warm, congenial afternoon. However, all good things must come to an end.

After a few months being briefed by this new firm in December 1977, I received a telephone call from the other partner advising me that they would not be briefing me in the future, as they had found a brilliant young barrister who would be taking over my work. He told me that this barrister’s name was Tony Howard, and he was greatly impressed by Tony. Tony Howard later became a Queen’s Counsel and was appointed to the County Court bench. An extremely able man, he is the husband of the Governor of Victoria, Linda Dessau.

Family law

I had a large and successful practice in the District Court of Colombo in Ceylon, and in my 12 years at the Bar there I encountered every form of sexual perversion and sexual deviation in my cases. In one case, my client had been coerced into marrying a woman by his elder sister, who was many years older than him. Like Liza Minelli, who returned home early one afternoon to surprise her husband, he returned home one afternoon to surprise his wife. He did get a surprise. He found her in bed with his sister!

I was now also gradually building up a successful practice in Australia under the new Family Law Act which had been enacted in 1975 by the Labor Party under the guidance of Lionel Murphy. In June of 1977, I was briefed to appear in a custody matter in the Family Court of Australia. It was a no-fault jurisdiction which entitled either party to a marriage to a divorce after a separation of one year. This was a new and a startling concept. Under the Matrimonial Causes Act, which had previously been in force, a person could only get a divorce on the grounds of adultery, malicious desertion, constructive malicious desertion or non-consummation of the marriage.

At the end of May 1977, I was briefed to appear for a young wife in a custody case. It transpired that her husband, who was in his mid-twenties, had a Charlie Chaplin-like desire for young girls. He had seduced his wife when she was 15-years old and filled her with a baby before she turned 16. In order to escape punishment for his folly, the husband married his pregnant girlfriend on her 16th birthday.

The husband then had numerous affairs with young teenage girls. One of these girls, a 14-year-old, agreed to give evidence for my client. She had been sacked from school for stealing and had been caught shoplifting at Woolworths in Frankston.

I saw my client and the young lady in conference, and the young lady gave me detailed descriptions about her sexual activities with the husband. I then devised an ingenious plan of action. My father had taught me that the leading of evidence of a witness in examination-in-chief was as important as the cross-examination of a witness.

I had the benefit of sitting at the feet of my father, who was a brilliant advocate. In Ceylon, whenever Dad was cross-examining a witness, the courts were packed with young lawyers waiting to learn something from the old man. I would often ask him why he put a particular question to a particular witness, and he would explain in great detail why he did it. He instructed me early on that the purpose of cross-examination was specifically to get the ingredients of your case out of the opposition witnesses and after that to contradict them. But he also told me that examination-in-chief was an art which was very rarely practised by “advocates.” I decided to put Dad’s advice into practice in this case.

I planned to lead the bare bones of the girl’s evidence and let my opponent fall headfirst into the mire. After my client gave evidence, I called this 14-year-old girl into the witness box. After the usual preliminaries I pointed to the defendant and asked the girl whether she knew him, to which she replied, “Yes” I asked her how well she knew the defendant and she said ” Intimately”. I then asked her what she meant by that and she said that she had had sexual intercourse with him on more than one occasion.

I sat down and my opponent got up to cross-examine her. He walked right into the trap I had set for him. He asked her whether she had been sacked from school for stealing, to which she replied “Yes”. He then asked her whether she had been caught shoplifting at Woolworths in Frankston, to which again she replied “Yes” She was the sort of girl who would misbehave herself. My opponent suggested to her that she had concocted this whole story about having intercourse with his client. She vehemently denied this, and said no, she had had intercourse with the defendant on a number of occasions.

He then made the fatal mistake of asking her when they first had intercourse. She said, “We got into the back of his car and he started tickling my boobs. When he started tickling my boobs I got very randy and asked him to fuck me.” My opponent realized what had happened and quickly sat down. The judge, Justice Stephen Strauss, said, “Wait a minute, I want to hear more of this’

The girl then gave a graphic description of all the acts of sexual intercourse she had had with the defendant. My opponent did not call his client and the judge gave my client custody of her little girl, who had been conceived out of wedlock. I was delighted with my success and prepared for my next expedition in the Family Court.