by Antonio Buti
For Lisa Loechel, January 2007 brings mixed emotions. She has worked hard with the team to get the judgment document to this point and is proud of what she has helped them accomplish. But her two-year appointment as Associate is complete. When she leaves, Enzo Belperio eagerly accepts the invitation to take her place. He is another high-achieving graduate, and a debating champion, from the University of Adelaide Law School. He slots in easily to the role, having been a research assistant for Justice Gray during the first two months of the trial. He joins Yarlett in the painstaking task of filling in the gaps in the judgment and reviewing the trial transcript and legal analyses, under direction from Justice Gray. Together they thumb through law reports, trawl online law and legislation databases, and find the correct place in the thousands of pages of court transcript.
Gray wants to complete the judgment and deliver it as soon as possible because he has heard that Bruce’s health is deteriorating. So Belperio and Yarlett spend eight hours a day proofreading the draft judgment, taking turns in reading it out aloud while the other checks the facts and ensures quotes are correct. It is a frantic pace, without respite between one redraft and the next, in order to keep up with Justice Gray. What is particularly demanding for His Honour is the section on damages. How to quantify them is difficult because there is little precedent to guide him. What is more, neither counsel has made a detailed submission on quantum, so he is very much breaking new ground.
Finally, Justice Gray is ready to sign off. His personal assistant phones legal counsel for both parties. Richardson phones Bruce, who is just relieved that at last this day, when once again a bureaucratic institution will decide his destiny, is here. The judgment is listed for two o’clock on 1 August 2007.
Chapter 20
JUDGMENT DAY
In Courtroom 1, upstairs in the Supreme Court of South Australia, there is standing room only in the limited public viewing area. Supporters, Aboriginal and non-Aboriginal, are in attendance. Members of Bruce’s extended family wait nervously. Journalists and reporters pass the time in desultory conversation. It is a courtroom, so there are no cameras. A few law students have turned up. So, too, have members of the public interested in being in the courtroom for this seminal event.
Counsel for both parties are at their respective bar tables with their instructing solicitors. To those watching from the public gallery, they appear surprisingly calm; an ECG readout would no doubt present a different picture. No courtroom advocate likes to lose at any time, of course, but the professional stakes in this landmark case, into which each has poured passionate advocacy, are enough to raise the heart rate of even the most phlegmatic barrister or solicitor.
For Richardson, Burnside and O’Connor, it is important to appear calm and confident in front of their obviously nervous client. They know they have presented a good case; they also know from years of experience that there are no ironclad certainties in a court of law. Nevertheless, there is no need to share that uncertainty with Bruce. He has survived a lifetime of vicissitudes, with more downs than ups. All his legal team can do is wait and hope, for his sake, that this will be an ‘up’ day.
Walsh and O’Sullivan at the defendant’s bar table are experiencing similar emotions to those of their courtroom rivals, though perhaps less intensely because their client is the State of South Australia. The State does not want to lose because a loss has financial consequences, but its ego and sense of self-worth are not in issue. Walsh and O’Sullivan do not want to lose because they are consummate professionals who have defended their client with zealous advocacy.
The courtroom clock, of which there is a clone in Justice Gray’s chambers, approaches two. Justice Gray stands, as do Yarlett and Belperio, who follow his lead in the short walk to the courtroom. Yarlett enters first through a side door and walks to the Associates’ table in front of the bench. They have agreed that, as the longer-serving Associate—she has been part of this trial since it started—Yarlett will have the privilege of announcing the case in court. Belperio follows her into court and takes a position behind the judge’s chair. Justice Gray remains outside.
‘All stand.’ On Yarlett’s cue, those in the courtroom stand in unison and Justice Gray enters through the same side door, strides purposefully to the bench and eases himself into the large leather chair Belperio is deferentially attending. All in the courtroom sit and Yarlett, when she is satisfied that Justice Gray is ready, announces in a clear, confident voice, ‘Court is in session in the case of Trevorrow and the State of South Australia.’
All eyes are on Justice Gray. He leans forward slightly towards the precisely positioned microphone. He is holding five typed pages of conclusions from his lengthy judgment. ‘I propose to read my conclusions.’ His gaze briefly traverses the packed courtroom and returns to his typed text. There is complete quiet.
‘The plaintiff, as an infant and as a child, was dealt with by the State without lawful authority in a manner that affected his personal wellbeing and freedom. He was the subject of misfeasance in public office. He was falsely imprisoned. He was the subject of breaches of the common law duty of care owed by the State.
‘At the time of the relevant events it was reasonably foreseeable that there was a material risk of injury, loss and damage if the plaintiff was taken from his natural family and placed in care. The foreseeability of the risk and the magnitude of the damage that might follow was compounded by the manner of the removal and by the conduct following thereafter.
‘The parents of the plaintiff were unaware of what was occurring. They did not consent. The plaintiff’s mother was provided misinformation about her son. It was a serious matter that contact between the natural family and the plaintiff, and in particular between the plaintiff and his mother, was obstructed and did not occur for almost a decade.
‘These circumstances left the plaintiff, as a child, suffering from an anxiety state, depression and illnesses associated with depression. When the decision was taken to return the plaintiff to his natural family, there was a need for particular care and support. Again there was a foreseeable risk of damage if the return was not handled with care. In the event, the return was handled inappropriately, against advice and in breach of duty. Unsurprisingly, the plaintiff could not cope on his return to his natural family and he was left to work through his problems in and out of institutional care for most of his adolescence.
‘The plaintiff had a very troubled childhood and adolescence. His siblings who remained with the natural family were able to overcome the difficulties they encountered and were able to achieve their potential in life. This was not so for the plaintiff. The plaintiff has struggled throughout life, suffering ongoing and serious depression. His adult life has been scarred by his earlier experiences. In these circumstances I have concluded that the State is liable to compensate the plaintiff.’
There is no movement from the bar table. Burnside, Walsh and their respective teams’ focus remains on Justice Gray. Bruce is not sure what the judge’s words mean. A few journalists raise their eyebrows and jot down some notes.
His Honour continues: ‘The Crown Solicitors of the time gave advice that the powers to remove Aboriginal children from their parents were limited. It is significant that at relevant times the State, through its Cabinet, was aware of these advices and the requests for legislative change to provide the authority to remove Aboriginal children from their natural families in an unrestricted manner. Given the serious invasion of private rights associated with such removals it is not surprising that the government was slow to move and, in fact, in the event was not prepared to provide any such broad legal authority.
‘The relevant advices about legal authority were made known to the APB and through its Secretary to the Department. I am satisfied that the conduct of the State, amounting to misfeasance in public office, together with the false imprisonment of the plaintiff, has been a material cause of the plaintiff’s long-term depression. It was this conduct that ruptured the bond between the plaint
iff and his mother and natural family. The breaches of duty of care that occurred were also a material cause of his depression and other losses. Those losses include the loss of his Aboriginal identity.
‘Although there may have been other contributing causes, the conduct of the State was a material contributing cause. In the result, the State is liable to the plaintiff in respect of misfeasance in public office, false imprisonment and breaches of duty of care both in regard to his removal, placement and return. The misfeasance in public office and false imprisonment occurred in circumstances where the State acted deliberately and unlawfully and in circumstances where it was reasonably foreseeable that there was a risk of harm.
‘The same damages are recoverable as a consequence of the common law causes of action for breach of duty. Where it is clear that a plaintiff has suffered loss the court should do its best to place a dollar value on that loss notwithstanding the paucity or absence of evidence. The court is not permitted to abandon the task through want of evidence, but a discretionary judgment should be formed. As Heydon JA in New South Wales v Moss observed: “That the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.”
‘I have found this assessment of damages challenging. There is always an inherent difficulty in equating personal injury with a dollar sum. The best that one can do is to adopt a holistic approach. I propose to make declarations and award exemplary damages. Given this approach, the common law provides, in my view, an effective and just remedy to the plaintiff for the wrongs that he has suffered. In these circumstances there is no need to consider claims for equitable compensation because they overlap the awards that I have indicated that I propose to make.
‘The making of specific declarations is likely to assist in relieving the ongoing suffering of the plaintiff and provide a measure of remedy and relief. I am prepared to make declarations consistent with my reasons with respect to the treatment of the plaintiff without lawful authority. I make an award of damages in favour of the plaintiff in respect of his injuries and losses of 450,000 dollars.’
The legal teams still do not react, but a few people in the public gallery shift in their seats, look at each other and smile.
‘I have assessed the damages in the money of today—the day of the verdict. I make an award of exemplary damages with respect to his unlawful removal and detention, that is in respect of misfeasance in public office and false imprisonment, of 75,000 dollars. The plaintiff is entitled to judgment in the sum of 525,000 dollars.
‘I direct that minutes of order be prepared to reflect the above relief including the proposed declarations. I will hear the parties on the question of interest and costs.’43
Justice Gray shuffles the five typed pages into a bundle, and taps the bottom edge on the bench to return the bundle to the neatness to which he had arranged it before entering court.
Yarlett takes her cue: ‘All stand.’
Justice Gray stands, as do officers of the court, media representatives and those in the public gallery. His Honour bows respectfully in their direction. They acknowledge this with their own deferential bow. His Honour turns and, with the same purposeful stride with which he entered the courtroom, departs through the side door to his chambers. There is nothing in his demeanour to indicate that he has just made history. He has done his job.
Many in the public gallery are appreciably stirred. This is a first in Australian jurisprudence. Bruce Trevorrow has succeeded where no other plaintiff of the Stolen Generations has. Members of the media write furiously on their notepads and some have already left the court to file their stories or ring their editors. The decision will appear on all the Adelaide news shows tonight and soon on the radio bulletins. It will be covered in the daily local paper, find its way into the national media and be reported by media overseas.
Walsh and his legal team are standing around, talking as they pack up their files. The decision is unambiguously against their client. That is the nature of litigation: you have a winner and a loser. An appeal is on their minds, of course. As soon as practicable, they will seek out the full written judgment and will each comb through it looking for errors of law or fact that will warrant an appeal.
What might not be evident to those in the public gallery is that Justice Gray has shown a high level of respect and understanding in allowing Bruce to tell his sometimes faltering story in full. Yet it is evident to Bruce, and he wants the judge to know how much he appreciates his attitude. Others might see Bruce as triumphant. Justice Gray has awarded him monetary compensation and has ordered that he is entitled to declarations ‘to assist in relieving the ongoing suffering of the plaintiff and provide a measure of remedy and relief’. Bruce does not understand the nuances of this legal language, but he does understand the judgment of misfeasance in public office and false imprisonment. He feels vindicated; he does not feel triumphant. Let his legal team enjoy the win. He does not begrudge them that. They have worked hard, and passionately, for him. Today is all about hugs, handshakes and mutual congratulations, which Bruce endures but does not enjoy.
Later, after the mandatory champagne sipping and the overwhelming bonhomie are over, Bruce contacts Burnside and asks him to write to Justice Gray. He wants him to know how much he appreciates the respect with which His Honour has treated him as a witness and as an Indigenous person. Throughout his damaged life, Bruce too often has presented as unlikeable and as emotionally detached from family and from those who would try to be his friend. Clearly though, at his core, those innate human values exist, and Justice Gray has reached them with this act of thoughtfulness in the midst of a trial that must operate according to procedure shaped by soulless bureaucracy.
Self-centred media and an insatiable public are soon looking for some new marvel to excite, gossip to titillate or secular triumph to celebrate. For them, the import of Bruce’s figurative day in court is ephemeral. In the hubbub of this fleeting victory, again, Bruce is still between cultures, still not sure of what he should be feeling, still unsure about where he belongs. He is unwell, he knows he can only deteriorate and, now that those who have fought his fight in court have departed, he is alone. The Government of South Australia has paid—not atoned—for its past misfeasance in the only way it knows how to pay: with money. That money will help Veronica and the kids materially. Only he can atone to them for his own emotional and, too often, physical abuses. That must be his mission for what remains of his life on earth. He now wants to go home.
But what is home?
Bruce has returned to where he lives with Veronica and their children, yet the demons that have taken up residence within his consciousness go with him. He knows he cannot get rid of them with blood money. For the next ten months, between increasingly frequent confinements in hospital, he tries to make up for all the indignities to which he has subjected Veronica when the demons were rampaging. He tries also to be the father to his children, who suffered the emotional pain of watching what he did to their mother. What is home? Is it love, which he has been too damaged to know and to share?
Time passes slowly and, more often than not, painfully. The emotional pain Bruce must endure at home. The physical ravages require the palliative care of the Sale Hospital, in southeastern Victoria. He knows they can’t cure him—they have told him so. They can only relieve his pain.
Bruce seems to be sleeping. He lies there, too tired to talk, but he does not sleep. As he has done over and over during this latest palliative sojourn, he thinks about his life after that singular day.
Six months later, on 13 February 2008, with a new federal government in power, Prime Minister Kevin Rudd does as he promised he would do and delivers an apology to Aust
ralia’s Indigenous peoples: ‘Today we honour the Indigenous peoples of this land, the oldest continuing cultures in human history. We reflect on their past mistreatment. We reflect in particular on the mistreatment of those who were Stolen Generations—this blemished chapter in our nation’s history. The time has now come for the nation to turn a new page in Australia’s history by righting the wrongs of the past and so moving forward with confidence to the future. We apologise for the laws and policies of successive parliaments and governments that have inflicted profound grief, suffering and loss on these our fellow Australians. We apologise especially for the removal of Aboriginal and Torres Strait Islander children from their families, their communities and their country. For the pain, suffering and hurt of these Stolen Generations, their descendants and for their families left behind, we say sorry.’
Bruce listens, seated in the public gallery high above the floor of the House of Representatives, but does not feel the elation he had expected to feel. His own experience with government since the trial has embittered him somewhat. No member of government has offered him a personal apology. On the contrary, the State of South Australia would appeal Justice Gray’s decision. Even if it had felt inclined to apologise, that now was not an option. On the other hand, the State knew that to withhold compensation until after the appeal would not sit well with the public. They resolved that dilemma with practised political expediency: they paid the money ex gratia. At best, it was recognition of a moral responsibility for the behaviour of some Department officers a long time ago. It was not an acknowledgement of the State’s collective guilt. Moreover, Prime Minister Rudd has made it clear that, in giving his parliament’s apology on behalf of the people, he is rejecting any idea of monetary compensation for members or family of the Stolen Generations.
A few years earlier, in another context, a Jewish American political truthseeker Hannah Arendt had made the poignant observation that when the collective does nothing to right an injustice, they can subsequently wring their hands and say ‘We are all guilty’, but then, as she says, ‘When we are all guilty, no one is’.
