SPECIAL SITTING FOR PRESENTATION OF COMMISSION
HER HONOUR JUDGE GERALDINE DAVISON SC
HIS HONOUR JUDGE PAUL MUSCAT SC
Courtroom 8, Sir Samuel Way Building
Tuesday, 17 July 2012
1.
May it please the Court.
2.
On behalf of the Bar Association, it is a pleasure to join with the AttorneyGeneral and the Law Society in congratulating your Honours on your
appointments as Judges of this Court.
3.
As a number of people here today will know, there is a longstanding tradition of
a dinner put on by the Law Society and the Bar Association for new silks. The
New Silks Dinner is held every two years.
4.
The only draw-back is that the new silks are expected to speak, and when they
speak they are expected to be amusing. As you might expect, many lawyers
find the task of being amusing difficult. To make matters worse, the new silks’
speeches are assessed and a winner announced. Heckling is not only expected,
but encouraged. Over the years many new silks have found the prospect of
these speeches very daunting indeed.
5.
There are many stories about the lengths some silks have gone to in order to
avoid the event. For example David Haines QC appears to have been troubled
for well over a decade by the same cold which mysteriously manifests
biennially at around the time the invitations are sent.
6.
Your Honours appear to be the first in a new category, a pair of silks who have
conspired to ensure that they avoid the dinner by reason of judicial
appointment.
That seems to me to be a very poor excuse. You two would
have been better off catching Haines’ cold.
2
Judge Davison
7.
First, Judge Davison.
8.
Whilst you have done your best to stymie this morning’s proceedings with
threats and cajoling to maintain the façade of boring conservatism, I’m pleased
to say that a number of your friends and colleagues have ignored your
censorship efforts.
9.
In fact, when one of your oldest friends was asked to describe Your Honour she
blurted, “Geraldine? Well she’s wild, absolutely wild!” When I asked for
particulars, she was only too happy to oblige, prefacing her comments with
“Geraldine will kill me, but…”. We shall come to those details in a moment.
10.
Your Honour’s early education included time at Kildare College with Judge
Bampton, who recalls being told by her grandmother that you were a girl worth
befriending.
11.
At the University of Adelaide Law School, you showed particular aptitude in
missing tutorials, regarding the 12 contact hours each week as unduly onerous.
If you were not in the smoker’s room adjacent the library, you could be found
shopping, or sitting at the café known as “Grumpy’s” in the Mansions Arcade
drinking coffee and eating baked cheese-cake.
On special occasions you
treated yourself to the odd gin and tonic and chips at the bar next to the Law
School.
12.
Despite firmly believing that one particular exam had ruined your career
prospects, you did well, and decided to travel to Europe for a year with Fiona
Avery. She claims to have no memory at all of those 12 months spent every
day with Your Honour. Perhaps you may care to fill in the gaps. Or not.
Whatever happened, you enjoyed the experience so much you stayed 2 years.
3
13.
Today must seem a long way from your first job as a marketing director for an
engineering and interior design company based in London and Frankfurt.
14.
No doubt the skills you deployed for Heery International UK can now be put to
good use in the Sir Samuel Way Building. The Chief Judge awaits with bated
breath your constructive suggestions for the engineering issues which bedevil
this building, quite apart from advice about sprucing up the appearance of
Judges’ Chambers and the courtrooms more generally. Perhaps the “new look”
could be “contemporary and crisp” with a colour palette best described as
soothing and reassuring without being too edgy or confining.
15.
As we have heard, whilst criminal practice has dominated your Honour’s
working life, your career has been marked by variety.
16.
For some years at Andersons’ Port Adelaide office, you undertook personal
injury, commercial and estate matters, quite apart from the staple diet of
criminal cases flowing through that office.
17.
During your first year you were fortunate to be selected to junior Ms Marie
Shaw QC in your first murder trial. The accused was acquitted of the murder
charge. Whilst you were a popular member of the firm, the brief was awarded
on merit.
18.
Your change in direction to prosecuting came in the late 1980s when you then
concentrated on work as an advocate. You ably handled a wide range of jury
trials in the District and Supreme Courts, as well as the oral committals which
were a feature of criminal practice during the 1980s and 1990s.
19.
Whilst at the DPP you took maternity leave on two occasions. With your
husband Alistair you now have Caitlin, 16, and Hannah, 14. It is a tribute to
you and your family that each time you returned to the Office of the Director of
4
Public Prosecutions, you were able to assume greater responsibilities for
administrative and management decision-making.
20.
You were also required to represent the Office at various community meetings,
no doubt enjoying the interaction with the broader community and explaining
the operation of the criminal law as well as the particular tasks of the
prosecutor.
You had a particular aptitude for genuinely empathising with
victims of crime.
21.
After your second period of maternity leave, you were given the important
responsibility for developing policy, co-ordinating the DPP’s response to
legislative change through the Policy & Legislation Branch of the AttorneyGeneral’s Department.
Legal reform was an important aspect of your
responsibilities during the late 1990s.
22.
By 2003, your senior role within the Department included the provision of
advice, training and liaison to the Police, victims’ organisations, community
groups and educational organisations. You were tasked with ensuring quality
control across all courts and you were appointed to membership of the
executive team, comprising the Director, Associate Director, Managing
Solicitor, Managing Prosecutor and General Manager.
23.
Whilst at the DPP you became a very important role model and teacher for
many junior lawyers.
All the junior practitioners looked up to you and
welcomed your guidance.
24.
As a Managing Prosecutor your court commitments became increasingly
demanding and extended to the most complex work, be it Supreme Court trials
or appeals in the Full Court, Court of Criminal Appeal or, occasionally, the
High Court.
5
25.
In 2006 you joined Carrington Chambers and, as might be expected, quickly
developed a busy practice in criminal matters, again including the more
complex trial work in the Supreme Court, as well as appeals in the Supreme
Court and the Court of Criminal Appeal.
Difficult “driving in a manner
dangerous” cases have been a staple of your practice.
26.
However, practice at the Bar gave you a welcome opportunity for diversity.
You appeared in numerous coronial hearings, as well as District Court personal
injury cases, and workers’ compensation matters in the Tribunal as well as on
judicial review or appeal to the Supreme Court.
27.
You also took the opportunity to take briefs on behalf of the Commonwealth
Director of Public Prosecutions in matters involving the interests of ASIC as
well as the ACCC.
28.
By the time of your appointment as silk last year, your Honour enjoyed the
support of the entire profession. Your appointment was not only well deserved
but widely supported.
29.
Your Honour has featured in many notable cases. It is appropriate that I
mention a handful:
29.1.
In The Queen v Collie, you prosecuted a double homicide involving a
notorious murderer, a case involving the usual array of issues including
an application for separate trials.1
29.2.
In 2010 you appeared with Mr Philip McNamara QC on the difficult
question of the interpretation of s 34CA of the Evidence Act
concerning the new amendments regarding the evidence of protected
witnesses.2
1
R v Collie [2006] SASC 4
2
R v Byerley [2010] SASCFC 3
6
29.3.
In The Queen v W, J you were involved in a sentencing appeal which
reinforced the correct approach to the sentencing of juveniles guilty of
numerous offences.3
29.4.
Recently you appeared for the Compensating Authority in a longrunning workers’ compensation dispute concerning psychological
injury sustained in unusual circumstances which included allegations
of misappropriated funds and a gambling addiction. That case alone
brought you before the Full Court of the Supreme Court on a number
of occasions.4
30.
As a member of the South Australian Bar Association, you have given able
service as a member of the Criminal Law Committee and the Evidence SubCommittee of the South Australian Law Reform Institute. I was particularly
pleased that you were prepared to act as the Bar’s representative on the
Attorney-General’s Sentencing Advisory Council.
31.
Your Honour has been an outstanding role model for women, demonstrating
how to combine a successful career and motherhood.
32.
And, as your husband Alistair can no doubt attest, your Honour is blessed with
an easy manner and a capacity for clear, plain expression. Neither the courts
before whom you have appeared nor your opponents are ever in doubt about the
point you are making.
33.
Nevertheless, and as your husband can no doubt also attest, you are a
determined litigator, persistent without being dogmatic or aggressive and
disarmingly effective.
34.
Your Honour is, as we have heard, well known to be decisive.
3
L-A, T v The Queen [2010] SASC 91 and Queen v W, J [2010] SASC 203
4
Dalton v South Australia (2010) 106 SASR 279
7
34.1.
You recently looked after a house for a colleague in chambers. You
were beset by the problem of the homeowner’s dog becoming unwell.
So far as you were concerned, the solution was clear. There was no
point delaying the inevitable, or putting off the decision for another
day. You were pleased to tell the homeowner that you’d had his dog
put down the day before his arrival back in Australia. There was, as
you explained, simply nothing for him to worry about.
34.2.
What few here today realise is that you have a particular history with
pets.
34.3.
Many years ago you were walking in the Adelaide Hills with the
family dog. You were enjoying the area near Mt Lofty and the Old
Government House site.
Inexplicably the family dog walked off a
cliff edge. Unperturbed, you managed to bring the dead pet home to
the family.
34.4.
More recently the family cat was bitten by a snake. Again you were
unruffled by the experience, and calmly and decisively compared
expensive veterinarian treatment against the more cost effective option.
To Your Honour the decision was again clear-cut, and expensive
veterinarian treatment was avoided.
35.
Your colleagues in Carrington Chambers speak of a member who could always
be relied on to assist in the resolution of problems, or, when the time came, to
refrain from offering opinions that may not be welcomed. You are described as
hard working, diligent and friendly.
36.
Your appointment as a Judge of this Court is to be regretted only in that it has
denied you the opportunity to entrench your position as one of the leaders of the
Bar in this State. Nevertheless, news of your appointment came as no surprise.
8
37.
You are widely respected in the profession as being down to earth, sensible and
having the great ability to deploy a common sense approach to solving even the
most difficult problems. There is no doubt that these qualities will serve you
well as a member of this Court.
38.
The Bar wishes you a long and successful career as a Judge of this Court.
Judge Muscat
39.
Now to your Honour, Judge Muscat.
40.
Your Honour enjoys the enviable reputation of having an encyclopaedic
knowledge of the criminal law and, to go with it, a passionate interest in its
operation and workings.
41.
Some of your colleagues have said, unkindly, that in your youth you had the
opportunity to observe first-hand the actual operation of various sections of the
Criminal Law Consolidation Act.
It is very unlikely that this was your
experience whilst being educated at St Michaels College.
42.
However your university colleagues clearly recall your first-hand experience of
police investigative procedures. Apparently as a university student you were
asked to participate in an identification parade by police. Few have since had
the temerity to question your insistence that you were merely “assisting police
with their inquiries” and that your uncanny resemblance to the actual suspect
was “purely coincidental”.
43.
Your Honour commenced in practice at Camatta Lempens, a busy general law
practice. For some time you worked under Bob Lempens. It was at Camatta
Lempens that you commenced to conduct criminal cases.
44.
Whilst working at Port Adelaide you apparently enjoyed fishing from the
bridge on the Port River. There you also met Mr Bob Harrap SM who had a
busy defence practice. He recalls numerous incidents involving Your Honour,
9
all of which are very amusing, but which could under no circumstances be used
this morning. It is fair to say, though, that I now see Your Honour in a new
light.
45.
At Camatta Lempens you were also involved in many other areas of the law,
including in connection with the establishment of the firm’s Elizabeth office
where you were required to field enquiries from clients across all areas before
making referrals to other solicitors within the firm.
46.
Your Honour even had a taste of wills and probate work, as well as
conveyancing work.
47.
By 1993, you had joined the Office of the Director of Public Prosecutions,
initially as solicitor and, from 1995, as prosecutor. There you undertook your
fair share of large and complex prosecutions and started to appear in the
Supreme Court, including the Court of Criminal Appeal.
48.
By the late 1990s, your responsibilities included the allocation of trials and
conducting mental incompetence assessments and reviews before the Supreme
and District Courts. Your work in the Supreme Court included appeals against
conviction as well as sentence and you were appearing more frequently in the
Court of Criminal Appeal. Your hard work and integrity ensured that you were
developing a reputation as a formidable, but fair prosecutor.
49.
By 2000, you were appointed senior prosecutor and, shortly after that, you
became responsible for the management and development of a large team,
whilst at the same time maintaining your appearances in the superior courts,
including the High Court on occasion.
50.
By 2006, you were appointed the Manager of Legal Services in the Prosecutors
section of the DPP, ensuring that all trial and appellate advocacy was conducted
10
to the high standards expected by the Court and the wider South Australian
community. You were well liked and widely respected by your colleagues.
51.
In 2006 your Honour then “went to the dark side”, or finally ‘saw the light’,
depending upon one’s perspective.
52.
It was in that year that you joined the Legal Services Commission of South
Australia, heading the Criminal Law Practice Division.
53.
There you continued to conduct complex criminal cases as well as undertake
management duties, but as defence counsel. You made the transition appear
effortless. The reputation built over a number of years as a prosecutor was
effectively deployed on behalf of the accused.
54.
At the Legal Services Commission you were instrumental in the development,
implementation and review of Commission policies, guidelines and procedures,
as well as in advising the Director on law reform and changes to the criminal
law.
Your Honour was required to liaise with the Courts Administration
Authority, the Attorney-General’s Department, the Law Society and the Bar
Association.
55.
By 2010 your appointment as senior counsel was both well-deserved and
widely welcomed across the entire profession. That same year you became a
member of the South Australian Bar Association. Your work in connection
with legislative reform on behalf of the Society and the Association, including
in connection with the serious and organised crime legislation, was well
informed, thorough and helpful.
56.
Your Honour has been involved with many important cases:
56.1.
You appeared with the then DPP Mr Paul Rofe QC in the influential
case of Katsambas, which elucidated the need for differing approaches
11
for the offenders involved in varying degrees in what was described by
Justice Cox as a ‘drug network’.5
56.2.
You were part of the prosecuting team in the influential case of
Lobban, where in Justice Martin’s reasons the Court recognised the
general unfairness discretion.6
56.3.
Earlier this year Your Honour appeared before the CCA arguing the
interpretation of s 18A of the Criminal Law (Sentencing) Act as it
applies in the Youth Court.7
56.4.
It is appropriate to emphasise the gratitude expressed by the former
Chief Justice in that case who said it was “appropriate that [he]
acknowledge the assistance … derived from the outlines provided to
the Court. They reflect very detailed research into the background of
the state of the relevant legislation, and on the issues which the Court
has had to consider”.8
56.5.
You have developed an interest in sentencing, appearing in many
complex sentencing appeals such as The Queen v A, D, in which you
were able to convince the Court that the Parliament's 20 year minimum
sentence for murder did not apply to youths,9 and The Queen v T, JJ
concerning the setting of a non-parole period for a youth guilty of
murder.10
5
Katsambas, Meyers, Watkins & Garlacz v R (1997) 97 A Crim R 51
6
R v Lobban (2000) 77 SASR 24 and R v Lobban (2001) 80 SASR 550
7
R, JM v Police [2012] SASCFC 58
8
R, JM v Police [2012] SASCFC 58 at [26]
9
The Queen v A, D [2011] SASCFC 5
10
The Queen v T, JJ [2012] SASCFC 62
12
56.6.
And, as has been mentioned, you appeared with Mr Bennett QC and
Mr Tokely in PGA v The Queen [2012] HCA 21, the controversial rape
in marriage case where the accused was found guilty of rape, even
though his conduct was not an offence at the time at which it occurred.
57.
It would be inappropriate to overlook your Honour’s considerable sporting
interests.
58.
One issue needs to be clarified immediately. Despite your excellence as a
soccer player – or if you prefer, as a footballer with a round ball – you are no
relation to Kevin Muscat, the well-known former Melbourne player.
Nevertheless, your Honour’s fierce attack on the ball, and sometimes
incidentally the man, has been likened to that of Kevin Muscat.
59.
No doubt your characteristic determination is a product of your Maltese
background.
60.
Despite an impressive degree of physical fitness, it was one of Your Honour’s
enduring disappointments that you were never to break the 50-minute time
barrier for the City-to-Bay Fun Run. Apparently you got close many times.
61.
One year, however, you were dismayed to read in the Advertiser that your time
was in fact an hour slower than you thought. I am informed that your Honour
to this day remains perplexed about the discrepancy. I can now inform you that
the discrepancy can be explained by the fact that before the race your
colleagues at the DPP thought it appropriate to substitute your electronic chip
with the electronic chip of a female colleague. She traversed the course on a
leisurely walk with her dog.
62.
Another year, you decided to embark upon a series of handicapped time trials to
ensure that you would finally break the 50-minute barrier. Lunchtime after
lunchtime you could be seen pushing yourself to the limits of your endurance in
13
the parklands. Whilst you were again disappointed in failing to beat the 50minute barrier, your particular concern that year was how your colleague, Mr
Ian White, managed to better your time. He had apparently done no training at
all. So concerned was your Honour about seeing Mr White at the finish line
ahead of you, you later underwent a medical examination which revealed a
slight iron deficiency. You have identified that finding ever-after as the reason
for failing to better Mr White’s time.
63.
Your Honour, I am now instructed to inform you of the true reason you failed
to beat Mr White that day. Whilst Mr White indeed started well after your
Honour on a handicap basis, like Fred Lorz in the 1904 Olympic marathon, he
had made secret arrangements to be collected and ferried by motor car so as to
ensure that he would already be there at the finish line when Your Honour
arrived that morning.
64.
However, in your athletic endeavours, as in your professional life in the law,
you have been unerringly humble.
65.
Sometimes the need for humility has been foisted on you. In your early days at
the DPP, you apparently bore a resemblance to Mr Phil Crowe. That was, of
course, at a time when Mr Crowe had hair. The two of you would, from time to
time, be confused for one another before the District Court. I am told that when
mistaken for you, Mr Crowe relished the opportunity to deliver particularly
extravagant and inflammatory submissions on behalf of the Crown. These
would invariably still be ringing in the ear of the judicial officer when next you
would make your appearance.
66.
On another occasion, you were concerned not to be seen to be “showing off” for
the benefit of your junior counsel and instructing solicitor when appearing
before the High Court. So concerned were you about not wishing to be seen to
14
“grandstand”, that you gave your junior and solicitor the wrong time for your
appearance in the High Court, ensuring that you performed “solo”.
67.
Your Honour, you have engendered a great degree of respect, admiration and
goodwill from staff at both the DPP and the Legal Services Commission by
your preparedness to engage in hard work and your willingness to mentor
younger practitioners. You have engendered an atmosphere of inclusion and
involvement, organising not only Compulsory Professional Development
sessions, but enjoyable social activities as well.
68.
Your colleagues at the Commission are genuinely sad to see you go and wish it
to be known that they have greatly enjoyed and benefited from your leadership
in your years at the Commission.
69.
No doubt it is particularly pleasing that your wife, Faye, and your daughters
Katie and Claire, can share this occasion with your other family and friends
here today.
70.
Whatever surprise you may have experienced on being informed that you were
being considered for appointment, when your appointment was announced it
was widely regarded as entirely appropriate and deserving. You have the
respect and support of the entire profession. The Bar is in no doubt that you
will successfully shoulder the burdens of judicial office.
71.
We wish you a long and rewarding career as a member of this Court.
72.
May it please the Court.
M.C. Livesey QC
President, SABA
17 July 2012