A Stolen Life

by Antonio Buti

  But now, in 2005, Richardson is asking much more than she had sought before. She wants Burnside to be lead counsel for the trial. And, of course, Burnside is even busier than he was when she first approached him. In his many telephone conversations with Richardson, he even questions whether she should go forward with the case. Burnside is hesitant to become involved in Indigenous test cases because of his experience in Nulyarimma v Thompson.36 When first approached, he had been asked whether, in his opinion, the crime of genocide formed part of the domestic law of Australia. It was, he thought, an interesting legal question. Yet it was only in a briefing on the Friday before the Monday of the trial that he became aware that genocide was to form a significant part of the factual context of the case. It involved an appeal to the Federal Court that the Registrar of the Magistrate’s Court should have issued a warrant for the arrest of the Prime Minister, Deputy Prime Minister and two members of the Federal Parliament on charges of genocide. The action was based on the Howard government’s Ten Point Plan to extinguish tracts of native title land. Burnside immediately knew the case was doomed. It had no foundation. He had felt compromised and this made him nervous about becoming involved in a Stolen Generations case, particularly given the lack of success in other Stolen Generations cases, such as Cubillo.

  Nor is he keen to spend considerable periods of time away from Melbourne. Moreover, he has recently appeared before Justice Gray in a refugee case and is very aware of Gray’s forensic and analytical skills. He knows you have to be well prepared and at the top of your game before locking horns with such a judge. In short, if he does not have time to prepare adequately, he wants no part of it. Richardson persists. Burnside does not commit. She will not give up. With the trial scheduled to commence in around six months, she has to get her barrister. She appeals, ‘If you don’t come on board, I don’t know who would.’ He can sense despair. So, putting his uncertainties to one side, he agrees. Richardson lets go a long-pent-up breath.

  Commitment made, Burnside, too, relaxes. Besides, Richardson has told him that Adelaide barrister Claire O’Connor is joining the team. He has worked with her before on refugee matters and her performance impressed him. He likes her, she likes him and they work well together. Richardson was aware of that when she raised O’Connor’s name. She also knows that O’Connor thinks Burnside’s courtroom advocacy is brilliant.

  Richardson helps herself to a moment or two of contemplative assessment of the new team she has just formed. Burnside has a high profile. People know what he stands for. What’s that expression? He wears his heart on his sleeve? That seems about right. What about Claire O’Connor? What does she stand for? She is a tenacious lawyer who has long worked on human rights cases, particularly involving refugees and native title. She moved from New Zealand to Adelaide in 1981, only intending to stay for a while before moving on. She travelled to London and to Israel but found her way back to Adelaide. She has an activist streak, which got her arrested during the Tasmanian Franklin Dam blockade in 1982. But that ended well enough, Richardson reflects.

  By early July 2005, Burnside and O’Connor are indeed working as a team on the Trevorrow case. Burnside also has the assistance of Adelaide barrister Nigel Wilson, the son of Ian Wilson, who had been Aboriginal Affairs Minister under Prime Minister Malcolm Fraser. Wilson’s talent lies in researching legal issues and compiling historical documentary evidence. More at home behind the scenes, looking at the paper trail and identifying fine legal points, he is a good foil to the more combative court advocacy work that is Burnside’s metier. Wilson is of inestimable value to Richardson, who draws on his advice and talents as she prepares the case for trial, though he leaves the legal team before the trial commences.

  They plough through the documents that Richardson and her team have assembled. Richardson’s industriousness impresses them, but Burnside and O’Connor are aware there is still much to do. High on their list is taking proof of evidence from the many witnesses for Bruce that they will call up in court. They both know that meticulous proofing of witnesses is the key to confident performance in the courtroom. This is especially so for witnesses for whom the ritual, and sheer ambience, of the courtroom is strange and potentially overwhelming.

  With Burnside based in Melbourne, with a busy listing of court appearances, the responsibility for preparing the Trevorrow case for trial will largely fall to O’Connor. Both of them will be working pro bono or at legal aid rates but the scale of their remuneration does not diminish the zealous advocacy that they bring to their client’s cause. Burnside buys O’Connor a new laptop computer to record the information she needs to collect. If they should ever be paid for this case, he tells her, she can repay him.

  O’Connor spends most of her days researching the annual reports in the state archives dealing with Aboriginal welfare and government control going back to the 1840s. It can be a daunting task for anyone less experienced in Indigenous issues than O’Connor is. But her work on the Royal Commission into Aboriginal Deaths in Custody and on the Hindmarsh Royal Commission, in which Bruce’s siblings were heavily involved, helps her. She knows what to look for, though it is still a slow, demanding task. In addition to the historical documents, there are current and emerging issues to deal with, such as locking in the necessary expert witnesses as well as ensuring comprehensive proofing of witnesses. Though many barristers and researchers have worked on this case for some time, Richardson alone has lived with the case for almost ten years. If she had the luxury of time to think about it, O’Connor could lament that instructing solicitors rather than barristers normally do much of the work she is now doing. It involves taking witness statements, usually a painstaking and slow process. This is no less so for expert witness testimony. O’Connor knows that such evidence can be pivotal in determining the outcome of a case. She might be busy but she cannot afford to skimp on her time on this aspect. She realises she needs a more detailed witness statement from Bruce. Richardson has told her how hard that might be. Well, she will have to work with that, because much of what she needs to know about this broken man must come in his own words. She arranges for him to come up to Adelaide from the Coorong.

  She has already taken statements from Tom, George and Hilda, and she had worked with the brothers on the Hindmarsh Royal Commission. They had been cooperative, open and engaging. She knows Bruce will be different but, even forewarned, she is unprepared for the truly broken man who crumples into the visitor’s chair in her office. Bruce is depressed and depressing, does not want to talk, is not easy to like. She probes because she must. She knows that Bruce has problems with alcohol, with anger management and coping with life. But she has to hear it from him, in his own words, because she must know what he will say to the questions put to him when he is on the stand as a witness in his own case. Burnside and she will draw the answers they want from him with patience and empathy. They will present this man to the court as a victim of state negligence.

  Stephen Walsh QC, counsel for the State, will show no such consideration. His questioning will be merciless, relentless, as he attempts to portray this man to the judge as a product of his own indulgent and dissolute lifestyle. It is cruel, and it is the nature of the adversarial trial. O’Connor’s task is to steel Bruce for the onslaught.

  On 21 September 2005 Justice Gray considers the State’s argument of legal privilege over certain documents. They include opinions of the Crown Solicitor, incorporating the opinion of 25 July 1949 and correspondence dated 3 August 1949. These documents are crucial. The documents provide evidence that the State knew the way it removed Bruce from his parents was ultra vires, which means it was beyond its authority. Bluntly, it was unlawful. Appearing for the State is Patrick O’Sullivan, who is Walsh QC’s junior in this trial. Walsh is the hired gun from Sydney, although originally from Adelaide where he still retains chambers; O’Sullivan is the local. Burnside and O’Connor appear for Bruce. The State argues that when Richardson had sought access to the documents in 1995, she had not told the De
partment of State Aboriginal Affairs that she wanted them for litigation. It claims that the impression she gave was that the ALRM wanted the documents to support its submission to the national Stolen Generations inquiry. O’Sullivan quotes from Richardson’s letter, dated 20 December 1995, ‘Mr Trevorrow has instructed me to act on his behalf in relation to the question of his separation as a child from his family and we are in the process of assisting him to prepare information to be submitted to the National Inquiry.’

  The argument does not convince Justice Gray. In his judgment, which he hands down five days later, he writes, ‘I have reached the conclusion that the State, on request from the plaintiff’s solicitor, provided access to documents generally. The plaintiff’s request was in terms that would have alerted the reasonable reader to the fact that the documents could be used in litigation with respect to any entity involved in the plaintiff’s separation from his family. That plainly would raise the possibility of claims against a number of state instrumentalities. The State gave access and the plaintiff’s solicitor perused the documents and made copies … The reasonable reader of the plaintiff’s solicitor’s letter of 20 December 1995 would also have realised that the documents might well be used for and provided to the ongoing National Inquiry into the Separation of Aboriginal Children from Their Families. In that event, there would be a communication of the documents and their contents to third persons with the practical reality that they might be used and further disseminated both by the National Inquiry in its report and otherwise.’37

  To compound the State’s woes, Justice Gray adds, ‘The State made no attempt to keep any part of the documents confidential, including the legal advice that was being proffered at the time. Confidentiality in that material has been lost.’ He ends with the observation that ‘any privilege that would otherwise exist in the documents already accessed, reviewed or copied’ by Richardson ‘has been waived’.

  Importantly, Justice Gray also holds that legal privilege by the state to the 1949 legal opinion from the Crown Solicitor has been waived because it has been already revealed to the public in an article by Dr Cameron Raynes in the Adelaide Review in March 2005.38 Raynes, who holds a PhD in anthropology, had worked in the role of project officer, Aboriginal access at the State Records of South Australia. The Department of State Aboriginal Affairs had given her access to the documents, including the legal opinions. Moreover, it was Raynes who had passed on those opinions to Richardson.

  This nails tightly shut the coffin of the State’s claim to have maintained confidentiality of the legal opinions. It also assures Burnside and O’Connor access to all twenty documents over which the State is seeking legal professional privilege. It is an important win because Richardson has already pleaded the documents into court in the interlocutory stages of the case.39

  As the trial date nears, Burnside meets Bruce for the first time. He sees what O’Connor had seen, a broken man, looking much older than his forty-nine years. He is nervous, confused. He knows he is suing the State but has no idea how the court process will work. He has been in court more than once in his troubled life, always as the one on trial. This time, it will be different.

  At last, the day Bruce has longed for arrives, more than ten years since he first walked into Richardson’s office. On 10 November 2005, the trial begins. Bruce has endured so many false dawns. Can this really mark the beginning of a brand new day?

  Richardson, too, is mildly apprehensive. She knows they are well prepared; she has absolute faith in her trial advocacy team. But she has been in enough courtrooms and experienced enough disappointments to know that, at trial, one can take nothing for granted. Burnside and O’Connor look cool, calm and collected. This will be a complex and watershed trial, however, and Richardson knows that skittish butterflies will be winging restively in their stomachs. She would be worried if they were not.

  PART THREE

  THE TRIAL

  Chapter 13

  BURNSIDE OPENS THE ATTACK

  Courtroom 11 is one of the largest courtrooms of the South Australian Supreme Court building. But on Thursday 10 November 2005, the listing of the case of Trevorrow v State of South Australia for hearing in that courtroom would have passed almost without notice. There is nothing in that brief listing to point to the violation of the fundamental rights of a thirteen-month-old baby. Nothing in it to presage testimony which would reveal in stark condemnation a history of justice delayed for more than forty-eight years.

  If a building can be an omen, this one is. Former Justice of the Supreme Court Dr Howard Zelling writes that, unlike other Australian colonies, the planners set up the Supreme Court before settling the colony of South Australia. They even appointed a judge before the first party of immigrants had arrived. The Court has set as its standard for judges’ behaviour words from the minor prophet Micah in the Old Testament: ‘He hath showed thee O man what is good. And what doth the Lord require of thee but to do justly, to love mercy, and to walk humbly with thy God.’

  If Joanna Richardson is looking for an augury of hope for this case, on which she has worked so assiduously, she could not ask for better testimony. Sitting behind the bar table, where Burnside waits with his customary nervous excitement for the court day to begin, she muses on this biblical urging. Will Justice Gray do justly and with mercy that for which Bruce has waited so long? She looks at her watch. She will find out soon enough—it is almost ten o’clock. Instinctively, she sits to attention, back straight, hands on table, poised, ready.

  In his chambers, Justice Thomas Gray is relaxed. Robed but without a wig—he has dispensed with that tradition—he waits for one of his two Associates, Kathryn Yarlett and Lisa Loechel, to knock on his door and tell him, ‘They’re ready for you, Judge.’ Having two Associates is another break with tradition. Most Supreme Court justices have one Associate and one Tipstaff, who attends to the judge in court and carries out administrative tasks. A Tipstaff is a role peculiar to the court system and materially it is an anachronism. History records that it originated in fourteenth-century England, when the Crown would send an officer of the court (who were always men, of course) to enforce an arrest. The officer carried a wooden or metal staff with a crown on its top. When one unscrewed the crown, they would find an arrest warrant stuffed inside the hollow staff. These days usually the brightest of recently graduated law students fill the position, and in the Federal Court and High Court they are called Associates. Their role is to help the judge by researching legal issues, summarising court material and assisting in writing opinions. The role is much more attractive now that police officers carry out the arresting function. Only the Supreme Court justices in each state have a designated Tipstaff. Justice Gray, however, prefers to have two Associates to help him satisfy the essence of that biblical admonition to do justly. Many other justices have since followed his lead.

  ‘All stand!’

  In unison, those in the courtroom rise to their feet in response to Loechel’s alert that Justice Gray is entering the courtroom. He walks through to the judge’s leather chair and acknowledges the deferential bow to the bench by officers of the court and people in the public gallery. Only two or three have come to watch. He sits.

  Loechel joins Yarlett at the long desk in front of the judge’s bench, which they share with the court reporter. Yarlett is still standing. ‘This court is in session in the matter of Bruce Allan Trevorrow and State of South Australia.’

  Burnside QC, sitting at the bar table on the left-hand side of the court and facing the elevated judge’s bench, formally introduces himself and O’Connor as counsel for the plaintiff. Richardson sits at a table behind them, surrounded by piles of documents. From a similar bar table at the right-hand side of the court, Walsh QC introduces himself and other members of the team for the defendant, Patrick O’Sullivan and Andrew Tokely. Theresa Karpinski and another solicitor for the Crown Solicitor’s Office sit at a table behind them.

  Burnside looks relaxed and in control, giving no hint of the one
or two butterflies that are always there in his stomach at the start of a trial. O’Connor, too, bottles her nervous energy but she is ready to go. Richardson casts a quick glance to the public gallery, where Bruce is sitting alone. With a tinge of guilt, she admits to herself that her principal reason for looking is to see if Bruce has not already succumbed to his need for a cigarette relaxant and popped outside for a quick smoke. In the years that have passed since she first met him as a man looking so much older than he was, she has watched him deteriorate. Has he the mental and physical stamina to endure what is to come over the next several weeks? She turns her attention back to the court.

  Formalities over, Justice Gray directs his attention to the plaintiff’s table. ‘Mr Burnside?’

  Burnside rises to his feet. ‘One practicality to begin with. The appeal in relation to legal professional privilege began yesterday, it stopped at lunchtime, the court ran out of time, and it will resume on Tuesday morning. So, with Your Honour’s permission, we might not sit here on Tuesday morning.’

  ‘Yes. Would you like to be sitting Tuesday afternoon, or do you want to adjourn on the Tuesday?’

  ‘Why don’t we see how things look on Monday afternoon?’