A Stolen Life

by Antonio Buti

  ‘In a general way, no. But when they are interfering with his life by taking active steps that inevitably affect him, then, in our submission, common law duties will be informed in part by the statutory duties which, at the very latest, must come into operation when they come to interfere with his life.’

  Burnside has not explicitly raised the legal matter of proximity, but Justice Gray does. ‘When we come to Christmas 1957, at that point with Bruce in hospital and the Board, through the Department, on your case, taking a decision to act, at that point proximity as one of the salient features, you would say, is established?’

  ‘Yes.’ But still Burnside is missing an essential element of common law duties. Again, though, the judge helps him out.

  ‘And vulnerability, as you’ve described it, and also there is a measure of control.’

  There it is! Control. And Burnside does not miss the opening. ‘A complete control, almost complete control.’

  Helpfully, His Honour offers him his next line: ‘Mr Walsh would say complete control in the sense of being entitled to take and deal with the child as it sees fit. You would say something less than that?’

  ‘Control in that sense is a practical question rather than a legal question. The content of their legal power of control is a separate question altogether.’

  ‘Yes.’ His Honour is waiting for more. Burnside does not disappoint.

  ‘Let’s assume, against my primary submission, that they did have legal power to remove Bruce from his family without reference to section thirty-eight or section 102 of the Maintenance Act. Let that be assumed. They would still be under a duty at common law to exercise that power of intervention with reasonable care and what would follow from that, in our submission, is that if it was foreseeable that removing him would be more harmful than leaving him where he was, then it would be a breach of their duty of care to remove him.

  ‘Then the question is how do we find out what’s more likely to harm? The answer to that is probably best found in the prudential constraints around the exercise of the power, which is to say, you don’t move unless it’s absolutely essential.’

  His Honour picks up his turn in the collaborative conversation: ‘Another issue that would arise in assessing whether a common law duty of care arose would be the foreseeability of risk associated with the proposed content?’

  ‘Yes, that is the vulnerability. His vulnerability is the vulnerability to being harmed by their intervention in his life.’

  Burnside has not made his argument fully; however, the essence of a collaborative conversation is that the partners strive to reach an understanding on which they can both agree. His Honour plays his part.

  ‘In the particular case, your argument is that it’s the foreseeability or vulnerability or risk that picks up, for example, on the reasoning of Their Honours in Chappel v Hart, that defeats causation?’

  ‘Yes. That reasoning meets the conundrum that otherwise presents itself that here we have, on our analysis of the case, a child who is taken in circumstances where it is likely that the taking will harm him in particular ways. He ends up suffering precisely that harm and yet it’s suggested that the taking didn’t do it, that he might have got there independently.’

  ‘You can get to that result, except for the purposes of the argument, that a wider general duty of care to Aboriginal children did not arise, but to deal with the duty in the particular circumstances of this case. In fact, on your case, I don’t need to go further than that.’

  ‘No, this case is about one child who was taken and what matters is what was actually done to him.’

  Collaborative conversation with Justice Gray best defines the bulk of Burnside’s closing address from that point on. The focus primarily is fiduciary duty in addition to common law duty of care. When it is done, when all the testimony is in and counsel have finished their closing addresses, the human essence of the plaintiff’s case—and the point on which Burnside wants to finish—is that it is indeed about one child who was taken. And what matters is what was actually done to him.

  All that remains before the court adjourns the hearing for the last time is for Justice Gray to clear up with Burnside what might appear to be misgivings about the testimony of some of the expert witnesses that might linger if he were to leave his reservations unremarked. In particular, he expresses his concern about the professional dispute between Professor McFarlane and Professor Goldney that might have tarnished the objectivity of their respective reports. He is forthright but even-handed.

  ‘I might say, when I read their reports and saw the comments that each make about the other, it didn’t have the hallmark of perhaps the usual totally detached report one receives. I do have a concern that both of them brought into the arena some personal animosity as a result of their dispute and that, to an extent, has coloured their comment on each other’s reports.

  ‘I accept, I might say, that both have done their very best to avoid that influencing their views. The difficulty is that once you have embedded professional disquiet about a colleague to the point where a complaint was laid and had to be dealt with, I can’t help feeling that left some sort of scar and I need to view both of their opinions and their evidence with that in mind. What do you say to that?’

  Burnside can only agree. ‘I really can’t contradict that. It’s ultimately a matter for you to assess them as they presented in the witness box although it was notable and unusual to see that their reports tended to concentrate on the other person’s report rather than the underlying questions.’

  His Honour agrees but, as one would expect from him, he concludes his comments on expert testimony in a conciliatory way. ‘These experts have come to court and expressed their opinions to assist the judge to reach a conclusion. None of them, as I see it, have had exposure to the facts that I’ve now had. In a case of this nature, that’s probably inevitable.

  ‘One does have an occasion where one would have a dispute between the experts and would reach a conclusion, right or wrong. In other cases, the opinions would offer a varying degree of assistance to the tribunal. It would depend on the judge’s view about the evidence but is there any reason in this case why I shouldn’t, on certain topics, give more weight to the views, if I was so impressed by Professor Goldney and less to Dr Le Page on some topics. It’s not a question of simply preferring one expert to another. It’s a question of what assistance each might offer and that could vary.’

  And, finally, ‘Could I put on the public record the court’s gratitude to the efforts of the counsel and solicitors involved in handling this very difficult matter. In my view it has been handled expeditiously and as efficiently as it could be in the circumstances and the court is indebted to counsel and those instructing in regard to the care and attention and depth of detail that has been gone to in the preparation of submissions and I want to put that on the public record.’

  Reserving his judgment, Justice Gray rises to his feet, bows to the officers of the court and strides from the courtroom. It is twelve minutes past one o’clock on Thursday 30 March 2006.

  PART FOUR

  THE JUDGMENT

  Chapter 19

  PREPARING THE WAY

  How does a judge prepare to deliver a judgment in a case like this? Justice Gray gave a hint in the closing stages of the trial when he commended the High Court case of Betts v Whittingsloe as ‘a wonderful example of Dixon J’s view that the first thing in a judgment you do is set out the facts’.

  Self-evident as that may be (once someone has actually said it), Justice Gray had begun his preparation on the first day of the trial, when counsel began blitzing him with documents. It was not the number, nor the complexity of them that gave him pause; it was the fact that so many—most—of them were from a distant past and that they related to people who were variously too old to testify or no longer living. In addition, opposing counsel held, as is usual, conflicting opinions on which documents ought to be admitted. It was more than a matter of which documents the
court should accept; often, it was a case of which part of the document it ought to admit. In most cases the documents that Bruce’s legal team wanted admitted were allowed. So from day one Justice Gray had laid down the law (his law) about what he expected from counsel to ensure he could find what he needed, when he needed it, as he considered his decision.

  His two Associates also have some skin in this game. Much of the searching for facts will fall to them, so they are thankful for their judge and mentor’s meticulousness. They each have been with him long enough to know that, as generous as he is with sharing his knowledge and guidance, he expects nothing less from his Associates than that they work as hard and as diligently as he does.

  He will be in his office by eight o’clock every morning and will not leave until six o’clock to have dinner with his family. More often than not, he will spend an hour or two after dinner reading material for which he has not found time during the day. Justice Gray has not laid down similar office hours for his Associates but they know that when he needs something, it has to fit into his schedule, not theirs. Nor do they mind. Their appointments are for only two years—Gray engages his Associates in alternate years to ensure continuity—and it is a learning experience only ever offered to the very best graduates. Justice Gray’s work ethic is renowned among his Supreme Court colleagues, as is his expectation that Associates share his stamina.

  In spite of his protestation to Burnside during his closing that he had difficulty keeping all the facts in mind, Justice Gray is not a prolific note-taker in the trials he presides over. Now, with the trial work done, Justice Gray must bring his team together to allocate tasks and establish a plan for merging the disparate spread of facts and relevant laws into his own composite narrative of the case. It will be a demanding schedule and he acknowledges that the timeline to which he demands his Associates adhere will be onerous. Both Lisa Loechel and Kathryn Yarlett have been with him for some time now and he has not a moment’s doubt that they will be up to the task and will relish this challenge as part of their commitment to his chambers.

  Having dealt with the last of the trial procedural formalities with hearings on 13 April and 18 May in relation to which documents to allow to be admitted and extension of time, Justice Gray has returned to his chambers, where he now tilts back in his comfortable leather chair behind his large jarrah desk and, for a few moments, reflects. From the first time the Trevorrow file came across his desk, he appreciated the potential importance of the case. Thirty-eight days of sitting in court absorbing evidence has reinforced it. Awareness of its potential social impact does not trouble him; the social significance of the case is not his primary focus. Nevertheless, he is acutely aware that if he decides against Bruce it will conform to the Stolen Generations cases that have come before, and if he finds in Bruce’s favour this will be the first of its kind and will have some social or political implications.

  He thinks about Bruce, the man. He finally got his day in court. But has that cliche, that hackneyed cure-all for every perceived injustice, given Bruce that for which he has intuitively longed throughout his life? Did he find a sympathetic and understanding ear for his cry for release from the physical and emotional pain that has blighted him? Is that my job, Justice Gray asks himself, to be a sympathetic ear? Tom Gray, the man, wishes it could be otherwise, but in this matter he is Justice Tom Gray, the judge.

  Well then, did the judge give him a fair hearing? He thinks so. It is difficult to describe Bruce as a reliable witness; the ravages of alcohol and illness have damaged his episodic memory, impaired his semantic reasoning. Was Bruce honest? Yes, and genuine in his desire to give the facts as he saw them. Was the judge too accommodating of these perceived deficiencies in often giving him longer to answer a question than Walsh, as counsel for the State, might have thought reasonable? He doesn’t think so. Certainly, Walsh showed him no similar leniency. Nor should he have. He cross-examined exactly as counsel for the defence should have. The judge gave Bruce the opportunity to gather his thoughts before answering. Walsh QC fully tested those answers. Yes, Bruce has had a fair hearing.

  Back to the realities of preparation. The first reality is that to reach his judgment, Gray will have to go through a complex reasoning process, which he must explain in a coherent denouement of the narrative he will have constructed. His audience will be the public to whom he must show that justice has been done. The second reality, though no less important, is that one or the other party will not like his denouement and will possibly appeal it to a higher court. In this case, that will be to the Full Supreme Court of South Australia. Should that happen, the reasons he gives for arriving at his finding must be judicially robust enough to pass such scrutiny.

  There are more than three thousand pages of transcript to review. There are at least as many pages of law authorities through which he and his Associates will trawl for relevant law. He asks Loechel and Yarlett, who have been waiting for his call, to join him. As they listen to him outline the realities on which he has been reflecting, his two Associates feel a sense of excitement. They have enjoyed sitting in on the trial because, unlike the appeals on which Justice Gray often sits, this has been a personal story unfolding before their eyes. No matter which way the judgment goes, they will have a personal stake in ensuring that justice is done. Yet, in every research and writing task he allocates to them, Justice Gray will remind them that justice according to the law, not their personal dispositions, must be their guiding principle.

  He sets out the key areas of research and writing that will occupy his Associates and him for the next several months at least. First is the statutory and policy framework relating to Aboriginal child removals in South Australia in the 1950s and 1960s. This will include the parameters of guardianship and the duties and rights of the Aborigines Protection Board, which was a significant point of contention during the hearing. Justice Gray needs a thorough review to determine the duties and powers of the Board. Second is the plaintiff’s application for extension of time. Loechel and Yarlett know that Justice Gray wants them to review the law and the authorities to ensure that his decision, which will be included in the judgment, is thorough and complete.

  They spend little time on that point and move on to talk about the various causes of action that the plaintiff has brought against the State of South Australia. Principally, these comprise misfeasance in public office, which holds public officials responsible for injuries that result from their acts that they knew were unlawful and the consequences of which they ought to have foreseen.42 Then there is the wrongful imprisonment of Bruce in the Davies home. The strength of this claim is not so clear-cut given Bruce’s immaturity and Martha Davies’ obligations to care for him as a minor. Justice Gray needs research of the relevant authorities to ascertain whether the elements of total restraint were made out. He stresses to his Associates that there is no necessity for the person restrained to be aware that they are ‘imprisoned’. Breach of fiduciary duty is another claim that needs diligent research. Justice Gray refers Loechel and Yarlett to the closing submissions of Walsh and Burnside, during which he had tested their contrary arguments forcefully. Burnside argued, and Walsh sought to debunk, that the Aborigines Protection Board’s legal guardianship of Bruce and its conduct gave rise to a fiduciary relationship between the Board and Bruce, and that there was likewise a similar relationship between the State of South Australia and Bruce and that the ensuing fiduciary duties had been breached. It is a vexed question still of when fiduciary duty applies and he has many questions, which Justice Gray wants them to explore. Finally, there is the claim of breach of duty of care in separating a child from their mother. Here the argument is that the State owed Bruce common law duties of care, which it breached. Should a reasonable person in a position of authority have foreseen potential risks of that action? Did the responsible officer take reasonable steps to evaluate the risks of severing the bonds of attachment against the risks of leaving Bruce with his biological parents?

  Hi
s Honour knows that much will depend on how he evaluates the relative strengths of competing expert testimony. It is not something he can assign to his Associates, to go away and research relevant authorities. As he intimated in court, this question is his alone. Nevertheless, he is pleased to have Loechel and Yarlett around so that he can test his own thoughts against their views.

  This, of course, is how it will be for all the still-unanswered questions. He and his Associates will have innumerable discussions. New, supplementary questions will present themselves and together they will thrash out possible answers. Ultimately, though, the solitariness of the lone judge will manifest itself. He alone carries the weight of this judgment. He alone now carries Bruce’s fate in his hands. Moreover, if he decides in the plaintiff’s favour, what monetary value does he place on the physical and emotional suffering Bruce has endured? The answer will come, he knows, but not yet.

  Indeed, it is not until nine months after the trial has ended—the birth of a new year—that Justice Gray sits in his chambers looking at what the labour of that period has delivered. He is holding the first full draft of his findings in the matter of Trevorrow v the State of South Australia.

  He hefts the 500-page document in his hands. What does the new arrival weigh? The analogy of expectancy, birth pangs and delivery intrigues him for a moment. He sees a poignant symmetry of its incubation with that of the baby boy who inspired it.

  There is still a lot of work to do on the document before it will be ready for presentation. There are gaps in content to fill; quoted authorities to check and recheck; potential ambiguities or inconsistencies of expression to clarify; footnotes to reference and cross-reference; overall structural coherence to review; and, when all that is in order, he and his Associates will do a final edit and proofread.