Special Feature: The Law, Philanthropy and Shark Wrestling - In conversation with The Honourable Malcolm McCusker AC QC

The Law, Philanthropy and Shark Wrestling

In conversation with The Honourable Malcolm McCusker AC QC Conducted by Thaw-Thaw Htin and Martin Bennett

This in-depth conversation with The Honourable Malcolm McCusker AC QC was organised by Bennett + Co on 17 July 2021 in honour of the forthcoming 60th anniversary of Malcolm’s admission to legal practice in Western Australia on 22 December 1961. As a backdrop to the conversation, a series of slides was shown, which celebrated the many aspects of Malcolm’s extraordinary professional, public, philanthropic and personal life.

Thaw-Thaw Htin: I am very, very excited to introduce our keynote speaker, The Honourable Malcolm McCusker AC QC. Malcolm has held a variety of roles. Many of you would know him as the 31st Governor of Western Australia between 2011 and 2014, as well as being a lawyer, QC, philanthropist and surf lifesaving-shark wrestler. So, we are using this session to learn as much as we can about the roles that Malcolm has held, what these roles have meant to Malcolm, and how we can draw from him the lessons that he encountered throughout all that. Would you please give a warm welcome for Malcolm.

Martin Bennett: Can I say that on the topic of Malcolm’s love affair with the law, in December of this year it is Malcolm’s anniversary of his 60th year of admission in Western Australia. Nobody has survived 60 years in the law without loving the law. You all know that it is a really demanding business: the time it demands, the effort that it demands, the fatigue that it brings, and the ups and the downs are all important. And a career that spans six decades of practice in Western Australia is full of instruction for all of us at whatever stage we are in practice. I can only go back for 42 of those years. I am keen to hear how Malcolm first fell in love with the law and how he got into law, how he went through law school, probably back in the day when there were only four people in the year, and to hear something of the origins of what has been a sustained passion. I can tell you that what I know is that Malcolm is probably one of the very few people who will start to get interested in a point of the law, research it, and stop at about 2.30 in the morning when he has got the answer. Mind you, you don’t have to stay up working to 2.30 in the morning, but if you do, it shows that you have got a passion for this, a curiosity and a continued enthusiasm for learning and the depth of knowledge that is required, but also the depth of preparation that is required. So, Malcolm, how did you fall in love with the law?

The Honourable Malcolm McCusker AC QC: Well, first of all, I am going to correct you. It is a slight understatement when you say that there were only four of us in my year of law. There were, if my memory serves me correctly, about a dozen. When I went to UWA Law School, there were about 70 students in total. So, because of that, sometimes two years were combined for lectures. My second year was combined with the third year. We had a visiting professor (Pedrick) from Northwest University who lectured us in tort law – 5 days a week. He taught the Harvard Law School method, basically a case study approach. It was very stimulating. He was a fine lecturer. Our lecturers at the law school then were almost entirely parttime lecturers, legal practitioners. For contract, we had Mr Burt, who became Sir Francis Burt, Chief Justice, and ultimately the Governor of Western Australia.[1] John Toohey, who became Toohey QC and ultimately a High Court Judge lectured us in Property Law.[2] Ron Wilson lectured us in Commercial Law. He became Sir Ron Wilson and a High Court Judge (the first High Court judge from Western Australia).[3] We had a host of other legal luminaries. They were very stimulating lecturers because they could tell us of their experience on the battlefront. They would relate the theory to the practice. And that, I suppose, started my so-called love of the law, although I hadn’t quite decided then whether I was going to practise law. I was the first member of my family and extended family to ever go to university and I had little knowledge of the profession of law. I had a full-time job with Shell Oil Company when I did my first year at law school.

Many years later, when I was practising law and I went to the Supreme Court to have a chat about my future with Sir Francis Burt, the Chief Justice, I said, “You know, Sir Francis, your lectures in contract made me appreciate what law was all about and enthused me with the idea of becoming a lawyer.” Upon which he looked very solemnly at me and he said, “Oh, McCusker, don’t put that burden on my shoulders.” However, when I got my degree, I didn’t know any lawyers and was still unsure what career to pursue. The Dean, Eric Edwards asked “What are you planning to do next, McCusker?” I said, “I don’t know. I’m thinking of perhaps a career in the diplomatic service”. The Dean wisely advised me: “Well, do your articles first.” He said, “I’ve got a friend Bob Wallace a partner at Kott Wallace and Gunning. I can get you articles with him.” So, I met Bob Wallace in his office. When I said that I hoped he would teach me to practise law, Bob said, “No, we don’t teach you, you’ll have to learn on the job” – which was what happened. There were only three women lawyers practising in Perth then, out of about 350 practising lawyers in Perth. There are now about 7,000 lawyers, I think, so there has been a dramatic change and (it is pleasing to observe) a large increase in the number of women lawyers. The partners in the firm gave me all kinds of tasks. They didn’t quite know what to do with an articled clerk. At the end of my two years articles, Bob Wallace asked if I would like to become a partner. I said, “Mr Wallace” – I didn’t call him Bob – “Mr Wallace, I’ve got no money. I can’t buy a partnership”. He said, “No, no, we will give you the partnership, but do you mind if we hold off until 1 July 1962, which will be 6 months after your admission to practice, in December 1961?” So, I became a partner of the firm at the ripe old age of 23! I was thrown straight into everything. The firm did all kinds of work, commercial work, Court of Petty Sessions work, whatever came along. When I was about 25, I did my first solo full court appeal. It was a commercial case. Sir Albert Wolff presided, as Chief Justice.

Martin: You’ve been through five Chief Justices.

Malcolm: True. When I took on that appeal, I’d lost before Oscar Negus[4] at first instance, but I advised the client to appeal. Although I thought the appeal should succeed, as the day approached, I felt the need for some reassurance. So, I went to see John Toohey, who used to send me a few briefs at that stage. He was practising as a barrister and solicitor. There was no Bar then. I said, “What do you think of this appeal?” He said, “You’re going to lose”. Then I asked Bob Wallace, who also said I would lose. Well, that didn’t give me a lot of courage! Undaunted, I rang Mr Burt – ‘Red Burt’ they called him. I said, “Mr Burt, can I come and see you?” I went through the appeal ground and he said, “I think you’re right.” So, that lifted my spirits, and I pressed on. In those days, a junior lawyer could go to a senior lawyer, and seek advice, which was freely given. I have tried to follow that excellent practice, since becoming a QC.

The Full Court heard the appeal in July 1964 and delivered its decision (in 3 pages) upholding the appeal, 3 weeks later. Brief, succinct, and to the point. Judgments in those times were, generally, briefer and more expeditiously given, than in later years.

That experience, in my early years, was uplifting and caused me to think that the practice of law was an enjoyable and interesting profession, worth staying with.

Martin: One of the things I have always admired about Malcolm is the generalist approach that he has to practice: civil suits of the utmost complexity, criminal suits, and then I know, because of friends that I have, that he doesn’t mind drafting the odd trust deed. A friend of mine was being cross-examined in the Family Court: what sort of trust deed is this? He said, “I don’t know, Mr McCusker drafted it.” So, there’s a spread across everything, contrary to the current trend of specialisation.

Malcolm: True. We did everything in the firm of Kott Wallace and Gunning. At first, I only acted for defendants in criminal cases. But after a while I began to get prosecution briefs from the Crown. I remained as a partner for about six years, and enjoyed it tremendously. I had other interests from law, rugby, surf lifesaving, kayaking and so forth. I was very keen on farming. In fact, I told my father when he asked me (when I was at Perth Mod) what I wanted to do, that I’d like to be a farmer. He said, “We’ve got no money, son, so you’d be a farm labourer. Go to university first and also get a job.” After I had been a partner with Kott Wallace and Gunning for about 2 years, one of the partners said, “We are thinking of buying a farm, Malcolm. Would you like to join us?” I had no hesitation in agreeing, and I’ve been involved in farming ever since.

Martin: That was back in the days where it was a really good tax deduction to own a farm.

Malcolm: It was really hard work, I’ll tell you, and I didn’t get involved for a tax deduction.

Martin: Four sheep and you’d know them by name!

Malcolm: A lot more than four sheep, and many cattle. We actually did a lot of work on the farm. The father of Ivan Gunning, one of the partners, had taken part in the Battle of Beersheba, the last great cavalry charge. I thought (and so did he) that with those genes he must be a good horseman. He wasn’t. He was only a little better than me, and I was really bad. But the two of us used to go and round up the cattle on our farm, and imagined ourselves to be real stockmen.

Martin: Where was the farm?

Malcolm: It was at Gingin. And we had a big block on the coast as well. We used to drove cattle from Gingin, out to the coast. There were holiday shack dwellers on the beach. They would greet us, and feed us fish and crayfish. We also drove tractors and did the ploughing. I would turn up on Monday morning at the office sometimes, having worked on the weekend at the farm, my eyes blackened with soot. Anyway, returning to the subject of law, I shall tell you how I came to get prosecution briefs. I defended a young man charged with rape. My first jury trial. I was very conscious of the importance of thorough preparation for any trial. And my preparation went as far as going to the home of the complainant, and managing to interview her parents.

Martin: Did you have your heart in your mouth when you did that?

Malcolm: It was fairly intrepid, I suppose, but when the rape trial began, I was fully prepared. Sir Lawrence Jackson was the judge. I think it was more due to the careful wording of his address, which was slanted subtly towards the defence, than my brilliant defence, that we won an acquittal. A couple of months later the prosecuting counsel – Ron Davies, a tenacious and able prosecuting counsel – got in touch with me and said, “Malcolm, would you be interested in taking some prosecution briefs?” So, from that time on, when I was in my mid-twenties, I guess, I was doing 2 or 3 prosecution briefs each month. That continued for about 10 years. I was combining that with defence briefs. I think it is desirable that defence counsel get a taste of prosecuting, and vice versa.

Martin: It is more than that. You become aware of the precision that is needed on a prosecution and it’s the absence of precision that gives the opportunity to the defence.

Malcolm: You’re quite right. Another case that was memorable was when I acted for a man called Conroy, who was charged with conspiracy to defraud. Two of his co-accused were lawyers, Denis Beere and Brian Singleton. There were two other co-accused, non-lawyers. I, and the two counsel acting for the two other non-lawyers, thought we’re going to go down with the ship because the jury is sure to convict the lawyers, there being a general belief that there would be antagonism towards lawyers, particularly if they’re allegedly conspiring to defraud. But, after a five week trial, the jury came back and acquitted the two lawyers and Martin Bennett, The Honourable Malcolm McCusker AC QC and Thaw-Thaw Htin at the Bennett + Co retreat reflecting on Malcolm’s 60 years convicted the 3 non-lawyers. Conroy was only a young man, a very likeable guy. Mrs Conroy was in tears, and I remember saying to her – looking back, foolishly, because you should never promise any outcome – “Don’t worry, Mrs Conroy, we’re going to appeal and we’ll get him acquitted.” Which we did, on the difficult ground that the jury verdict was “unsafe and unsatisfactory”. The Appeal Court of Jackson CJ, Burt and Wickham JJ delivered its 2 ½ page reasons in just over a month.[5] Singleton QC, one of the lawyers acquitted by the jury was a top criminal defence lawyer. He later said to me, “Do you know, being an accused in the witness box, before a jury, had given me a good understanding of how a poor old accursed feels.” (He used to call the accused ‘the accursed’). He added, “What’s more, my practice got even busier after that.”

Martin: When did you form McCusker & Harmer? Because my first knowledge of you was McCusker & Harmer – a formidable, small firm with Ron Harmer a specialist in insolvency.

Thaw-Thaw: Might you have applied for articles there, Martin?

Martin: I did apply for articles but I was unsuccessful.

Malcolm: What a lapse of judgment on my part! I stayed with Kott Wallace and Gunning as a partner for six years and then I decided to start off on my own. Bevan Lawrence and, later, Ron Harmer joined me. The firm was McCusker Lawrence & Harmer. Then Bevan decided to go on his own, so the firm became McCusker & Harmer. I had a large insolvency practice, and I couldn’t handle it because I was doing so much other work. It was getting a bit too much. When Ron Harmer came along, I said, “Ron, I want you to specialise in insolvency and take over the insolvency practice,” which he did. He’d actually been lecturing in insolvency before that. Years later, Ron was seconded by Michael Kirby to the Australian Law Reform Commission, where he re-wrote the laws of insolvency.

Martin: If you go back to those days, creating a new law firm in Perth was a very rare thing. They pop up frequently on a daily basis nowadays and shut almost as regularly, but McCusker & Harmer was an enduring institution, a small boutique law firm specialising in litigation and insolvency.

Malcolm: Yes, Ron Harmer specialised, as you say, in insolvency. One case, over which Ron and I used to figuratively slap each other on the backs, was when we acted for an insolvency practitioner, Ron Brown, against the Bank of New South Wales. But it was not just against that bank. It was a consortium of banks, because the issue at stake was a very important one to the banking industry. At first instance, we went before Bob Wallace. By then he’d become a judge, and a very quick judge he was.

Martin: In fact, most people said he wrote his judgments before the trial started.

Malcolm: I think they were sometimes right! On one particular occasion he was sitting on the Court of Appeal and before the appeal was heard, he passed round to his fellow Appellate Judges his draft decision.

Martin: He was known as the cobra because he would strike without warning.

Malcolm: Well, Bob – for whom I had great regard – would be listening to, say, counsel for the plaintiff, and he would be nodding his head, and the counsel for the plaintiff would think, ‘I’m winning’. Then Bob would (as you say) strike without warning. Anyway, Bob Wallace heard this very important case. The banks imported Roddy Meagher QC, who became, ultimately, a Judge on the Appellate Court of New South Wales. Ron Harmer and I went before Bob Wallace who, within the space of about ten days, gave a decision in our favour on this very complex case.[6] The banks, as we expected, appealed to the Court of Appeal.[7] We won before the Court of Appeal They took about two or three months. Then the banks appealed to the High Court.[]8 We won again; I think they took about five months. So, Bob showed himself in his true colours. He was speedy and usually got it right. The High Court report, which we used to chuckle about now and again, read:

Counsel for the respondent Malcolm McCusker QC, with him Ron Harmer.

Solicitors for the respondent McCusker & Harmer.

We thought that was unique, although we repeated that, 2 years later, in another High Court appeal.

Martin Bennett, The Honourable Malcolm McCusker AC QC and Thaw-Thaw Htin at the Bennett + Co retreat reflecting on Malcolm’s 60 years

Martin Bennett and Thaw-Thaw Htin presenting The Honourable Malcolm McCusker AC QC with a commemorative bottle of Penfolds Magill 1960, bottled in 1961, the year Malcolm was admitted.

Martin: We skipped over the bit about taking silk and I think I have a story about that. Malcolm was the first person from the ‘amalgam’ appointed as Queens Counsel and there’s only been about three all told. And successive Chief Justices have set their face resolutely against appointing Senior Counsel from the amalgam ever since, but yours were unusual circumstances in that –

Malcolm: Yes, Martin. The situation was that until 1963, the Bar didn’t exist. The Bar was started by Burt, John Wickham and Terry Walsh. They invited me to join later, but I said, “No thanks, I’m happy practising as I am.” Then the Chief Justice at the time, Sir Albert Wolff, decided that in future there’d be no appointments of silk unless they came from the Bar, and that became the practice.

Martin: Other than the Crown.

Malcolm: Yes, other than the Crown. Ron Wilson was appointed without joining the Bar. There were big protests from the Law Society who said, “You can’t do this!” There’s no law that says that a Queens Counsel can’t be appointed from the amalgam. The Chief Justice when this began was Sir Albert Wolff.[9] His personal lawyer was Ken Hatfield, an eminent criminal defence and civil litigation lawyer. The story is, I’m sure it’s not apocryphal, that Sir Albert called Ken in and said, “Ken, join the Bar and I’ll make you a QC.” And Ken said, “Sir Albert, I’ll give that careful consideration.” So, Ken was made QC. Sir Albert called him down later and said, “Ken, you haven’t joined the Bar,” and Ken said, “No, I have thought carefully about that and I decided not to join.” So, Ken Hatfield, in fact, was the first from the amalgam, after the formation of the Bar, to be made a QC, not me.

Thaw-Thaw: You’ve spoken so far about your career, and it seems to have gone at warp speed, stellar ahead. Can you explain to us some of the challenges that you encountered during that time when you were starting out, and also the importance of mentors or sponsors during that time?

Malcolm: One of my earliest mentors, beginning from when I was only articled with Kott Wallace and Gunning, was Leonard Seaton QC. He was made QC years before the W.A. Bar was established. Seaton was a brilliant advocate, even though, at the stage that he was one of my mentors, he was on the grog, literally on the grog, so that sometimes I’d take his brief along to the Red Lion Hotel where he’d be seated at the bar, and I would explain what the case was all about. On one occasion, he turned up at the court very scruffy, just in time for a hearing, and said, “What’s this all about Malcolm?” I told him and he said, “Ah!” He had a photographic memory. “You go and find this case for me.” It was an early English appeal decision. “Get that for me.” And he walked into Court with that one case. He was against another QC who had a large number of cases, from which he quoted at length. Seaton QC referred to only the one decision. It was right on point, and he won. I went back to the old United Services Hotel with Seaton afterwards and had a drink with him. I said (a bit naively) “Mr Seaton, how did you get to be so good?” And he said “Malcolm, I always, to this day, seize every new law report and read it”. He said “That’s the only way, you must work at it.” But Len had more than that: he had a brilliant mind. So, he was one of my early mentors. He kept me on my toes, too. In Court, he sometimes, without warning, would lean down and tell me (as his junior) to take over while he went out for a smoke. Burt was also a mentor. I used to watch his style as a barrister – always prepared, always courteous. Whenever I could, I’d go and watch good counsel in Court. In addition, I read every book I could about advocacy. I got a lot of tips, one of which always stuck with me was that the art of cross-examination is not to examine “crossly”. That is very important. And to prepare well in advance. Preparation is everything. You’ve got to be prepared to meet unforeseen circumstances but, as far as possible, foresee what’s going to happen.

Thaw-Thaw: Did you find yourself being in the deep end most of the time? How did you navigate through that?

Malcolm: I can honestly say I’ve never found myself in the really deep end because I would always make sure that I had prepared. Martin said something about my studying until 2.30 in the morning, and that’s true. I remember – jumping way, way ahead – that when I was arguing the appeal for Mallard,[10] before the second day of the hearing in the High Court in Canberra, I stayed up all night, I didn’t sleep at all. I was running on pure adrenaline the next morning. And when we finished Court that day (and were fairly confident we had won), Jamie Edelman, who was my junior at the time said, “Stay and have a drink.” I said, “Jamie, I’m exhausted, I’m just going to have a sleep.” The important thing is, you’ve got to have a passion to do that. You are quite right. You’ve got to have the passion, the belief in your client’s cause and, I suppose, a belief in justice. Sometimes people say, “What’s your most important case?” I reply, “Every case is important to the client.” And you’ve got to remember that: they are all important cases, to the client.

Front Row: L-R The Hon Wayne Martin AC QC, The Hon Malcolm McCusker AC QC, The Hon Justice James Edelman, The Hon Justice Robert Mitchell, Back Row: L-R Rob Meadows QC, Ray Warnes. Government House for Justice James Edelman’s swearing-in ceremony on 22 July 2011 when he became a Supreme Court judge.

Martin: So, how do you balance the pressure of family life, and by that stage, you and your father had established Town & Country Building Society, and you had farming interests and were spreading yourself across. And I know you had given up playing rugby – you were an outstanding winger, can I say!

Malcolm: Well, you can say that of course — one of the most outstanding!

Martin: The fact that he hasn’t got a broken nose probably indicates that he wasn’t caught that often! Surf lifesaving and canoeing. For those of you who don’t know, Jamie Edelman first introduced himself to Malcolm by tipping Malcolm off a surf ski at North Cott when Jamie was, you’d find it hard to believe, a very precocious, hyperactive, young –

Malcolm: Yes, you’re right, and after that Jamie had the temerity to approach me, he was still an undergraduate at UWA doing three degrees concurrently, and ask, “Can I come and do some summer clerking for you?” I still pride myself on my perceptiveness, because I said to him, after he had done a couple of summer clerkships, “Jamie, before I die, I want to see you on the High Court.” That’s literally true. He acknowledged that not so long ago. Even then he showed an incredible work ethic and acumen, and a real passion for the law. He came back to Perth from Oxford, and we worked together as counsel for some years. He persuaded me, at last, to join the Bar. It was a very stimulating and enjoyable period of my legal practice. A lot of interesting work, and quite a lot of fun, too.

Martin: He tried to kill you though before he made it to the High Court, in Oxford!

Malcolm: Yes, when he was a Rhodes Scholar at Oxford. He wasn’t actually trying to kill me, but he nearly drowned me. Talking about balance in life, under Bob Wallace’s urging in my earlier years I participated a lot in the Law Society, the Law Council. I was a junior member of the Law Council, a member of the practice committee, the law reform committee, the conveyancing committee and one of the founders, with Jennifer Carr of “Briefs”, the forerunner of “Brief”. I must say, the tiny legal profession then in those early days, tiny by comparison with now, was a very collegiate group. I knew virtually every lawyer in Perth by their first name. We’d get together at Law Society functions and most of the profession in Perth would turn up, because the numbers were so small. You can’t do it these days. But I do think it is important that young lawyers become involved in, participate in, our Law Society.

Martin: So, did you try and work consciously on the balance of maintaining fitness and family, friends, business, outside interests, or did they just sort of occur naturally, the love of sport and the love of fitness?

Malcolm: They came naturally. I started doing Avon Descents in kayaks and so forth. And I’d always been involved in surf lifesaving since the age of about sixteen. In those early years, when I could, if I wasn’t in Court, I used to go to Beatty Park, which was the only inland swimming pool in Perth, I think, around at the time, and do laps during lunch hour, often with Nick Tolcon, by then also a partner in Kott Wallace and Gunning. Then I’d come back to the office and continue working.

Martin: And so, you competed in the Australian Surf Lifesaving Masters up until the late 90s, early 2,000s?

Malcolm: Yes.

Martin: One memorable event in Queensland where you were upended by a monster wave and clung to a buoy until you were rescued.

Malcolm: Oh, you didn’t have to mention that! I was clinging to the buoy, there were huge waves, I had been on a single ski. And this rescue boat came along, and I thought, “Will I be humiliated and say “help”?” In the end, I did, and jumped in. Most undignified, but safe.

Martin: My recollection of you obtaining silk, maybe it is apocryphal, is that the late Michael Murray,[11] a Judge in the Supreme Court, was a senior crown prosecutor, an immensely fair, decent prosecutor. He had a car accident and was unable to practise for about six months while he was recovering. So, Malcolm gave up his private practice, stepped in and did all of Mike Murray’s prosecutions. What was notorious at the time is a lot of blokes facing prosecutions skipped bail to avoid Malcolm!

Malcolm: That is definitely apocryphal, although I did take on more prosecutions at that time. One prosecution that sticks in my mind, to this day, was a trial that lasted for about five or six weeks, of four drug squad detectives and a prostitute, charged with conspiracy to sell cannabis. The police internal investigation did a fantastic job, unravelling all the evidence. It was a very strong case, but I noticed during the trial that the jury were looking very worried. They use to file out from the Supreme Court at the end of the day between a phalanx of tough-looking men in business suits. Halfway through the trial I went to the trial Judge Pidgeon,[12] taking the other counsel with me, and I said, “Look, I want you to do something about the jury’s protection.” And he said, “I can’t do that.” So, he didn’t, and it continued. When the trial ended, the jury retired I think for less than an hour, and came back with a verdict of not guilty. They all had their heads down and, as they walked past me, I’ll never forget it, a woman on the jury leaned across and said, “I’m sorry Mr McCusker, it’s not your fault”. So, something went on there. It strengthened my resolve to try and get something done about the jury system, because in this day and age I believe it is an anachronism. But that is another question. Getting back to my becoming silk (after your apocryphal story). What happened was that the Law Society continued its campaign against the condition that you had to be at the Bar to become a QC; but it got nowhere. And then one day – and by this time I’d done prosecutions, defences, civil actions, all kinds of appeals, including High Court appeals — I was called down to see Sir Francis Burt. I had never applied to be appointed silk, but he said, “Malcolm, you haven’t joined the Bar, and you have said you don’t intend to. Well, we’ve had a look at your career, and you are practising as we’d expect a silk to practise. You are getting briefs from all over from the amalgam, from practitioners, and you are always available. We’ll make an exception for you, and we’ll make you silk.”

Thaw-Thaw: What year was that, Malcolm?

Malcolm: 1982. About three years later I was briefed to go to the Privy Council, which was one of the very last Privy Council appeals from Western Australia before the Australia Act, [13] which ended appeals to the Australia Privy Council. It was a great experience.

Martin: It was deplorable that the Australian taxpayers voted to abolish an appeal system where the English taxpayer paid for the appeal. I was a junior counsel in the appeal of Cameron v Murdoch.[14] It was just fantastic.

Malcolm: Do you remember who you had? I remember we had, among others, Lord Brightman and Lord Diplock.[15]

Martin: I know that Diplock had died a month or two months before that. We had Lord Keith of Kinkel, Lord Roskill, Lord Brandon of Oakbrook, Lord Mackay of Clashfern. And for the very first time sitting on the Privy Council, Sir Robert Megarry, the most intelligent person that I have ever seen.

Malcolm: Well, I’m sure that you experienced, as I did, the sharp intelligence and courtesy of those Law Lords.

Martin: It’s like going to the Olympics.

Martin: Allan Myers wasn’t even a silk, and he had an apartment in England, so he was available as a junior on Privy Council appeals. They didn’t speak Australian though, that’s the thing that I found. I went on a farming case that involved living in humpies and sucker bashing and they were really intrigued at both of those expressions, particularly sucker bashing. It’s the practice of removing tree regrowth of eucalypt.

Malcolm: All had a very reserved manner about them, no one got shafted. They were thoroughly prepared, the epitome of what a good Judge should be. And, as you say, the costs of the hearing were paid by the English taxpayer not the Australian taxpayer. So, all that Australians had to do, if they could afford it, was to pay for their own lawyers.

Malcolm: I had only two cases there. One was acting for the State Energy Commission of Western Australia against Griffin Coal.[16] My opponent on that (and many other cases, until he became the Chief Justice) was David Malcolm[17] who was a contemporary of mine, a fellow classmate at UWA Law School. I enjoyed being opposed to David, because I knew I was in for a tough battle, but always courteous and polite. When we finished our appeal, we were told we had the right to have lunch at the House of Lords. So, David and I walked into the House of Lords dining room. We found we were the only ones in this particular dining room, which had been set aside for counsel. Along came a waiter and he said, “What wine will you have?” And David said, “Well, what wines do you have (expecting a wine list)?” The waiter said, “Red or white.” David and I just looked at each other. Not a great choice. After that Privy Council appeal, and a diversion to ski in France, I came back to Australia and did a High Court tax appeal, opposed to Murray Gleeson QC (later the Chief Justice of the High Court). It was stimulating (although we lost the appeal). Then I returned for a Court of Appeal appearance in Western Australia. Burt C.J. was the presiding judge. I found that experience even more stimulating. When Burt CJ asked questions, you knew that there was usually a design behind the question. He’d lead you down the garden path and you knew you had to be careful about agreeing to anything he suggested, because the next step could mean you were gone. He kept counsel on their toes.

Martin: Famous story of the counsel who stood up for the appellant before Burt and said, “I’m here for the Crown,” and Burt leant forward and said, “Which Crown?” That was the end of that appeal.

Malcolm: Yes, which Crown was the question. Was it the Crown in the State of Western Australia or the Crown in Australia?

The Honourable Malcolm McCusker AC QC with his daughter Mary at the High Court welcome ceremony for The Hon Justice James Edelman

Martin: The shark rescue. That’s not an improbable story. Those of you who don’t know it, Malcolm was due to go down to the beach and was delayed going to the beach on the day that Ken Crew was taken, in front of the Surf Lifesaving Club at North Cott.[18] And you arrived at the beach after Ken had died on the beach. Taken in a metre and a half of water by a great white. Where the shark went under swimmers, one swimmer that I know, it grazed his stomach with his fin, just tore the skin off his stomach. It went under him seeking out the person closer to the shore. In 1997, a great white had attacked a surf ski off South Cott. Two of Malcolm’s friends were paddling. So, Malcolm, being Malcolm, went out with another paddler on a double ski to rescue them, notwithstanding that the shark was still there. Did instinct take over before common sense kicked in?

Malcolm: Yes, it did. Common sense kicked in when I got back to the beach. Later on, I was told I was to receive a bravery award – really, some would say, an award for stupidity. When we got out there to rescue Brian Sierakowski, a fellow surf club member and legal practitioner, he had blood streaming from his face where the shark had grazed him and, for the first time I can ever remember, Brian, who was known for his verbosity, was totally silent, except to call out, “Help! Help!”

Martin: As Brian tells the story now, the shark was about 27 metres long! Malcolm: It certainly grew with each telling. He went on a lecture tour. The story became more and more dramatic. It was as if Brian had walked across water to get to shore.

Martin: The surf ski was bought by Cicerello’s, wasn’t it? It’s up on the wall.

Malcolm: Yes, I think it’s still up there, in Cicerello’s.

Martin: Extraordinary thing to do.

Malcolm: I’m quite sure that other surf club members would have done the same.

Malcolm: When we got back to the surf club after the rescue, Brian was interviewed by a couple of TV people. One TV reporter said, “Sierakowski, that name rings a bell?” Brian said, a bit testily, “Don’t you read the papers, son?” Brian is a good illustration of the saying that the price of justice is the price of continuous publicity.

Thaw-Thaw: Can you tell us about the call that you received one fateful day from Colin Barnett?

Malcolm: Oh, yes. Well, I had a call to go to see Colin Barnett in his electoral office in Nedlands, and I thought, well it must be about a case that’s brewing. I was very busy at the time. I went along, and he sat me down and said, “Malcolm, I’d like you to think about becoming the next Governor of Western Australia.” It was just out of the blue. He said, “I know you’re going to say no.” He was right, I was. And he said, “Just promise me you’ll think about it over the weekend and talk to Tonya”. So, I did, I talked to Tonya (my wife) and I decided to accept. She didn’t talk me into it, but she did say, “Look, you are very keen on not only being philanthropic, but also to encourage philanthropy. As Governor you can influence the wider community.” I was quite dumbfounded that Colin had offered me the position. No one had ever suggested to me that I was going to be the next Governor. But Tonya and I were glad we took the position. I say ‘we’, because she played a large part in my fulfilling the role.

Martin: And you didn’t draw a salary for that time period?

Malcolm: I decided at the very beginning that I didn’t need it and I didn’t want it to appear that I was taking on the position for money. I think the salary was $480,000 a year or thereabouts, so I said at the outset I will donate this income for the three years of my term, to several charities that we thought were very worthy; and that is what I did.

Martin: You are very much involved in philanthropy. Do you see it as separate from the law or part of law even to this day of giving back to the community in capability?

Malcolm: Well, I do think lawyers could and should do more philanthropically, although they do give to the community in ways that aren’t fully perceived by the public. I’ve been involved, and I know your firm has been involved, as others have, in pro bono work, which is giving back to the community; but lawyers could do more. Town & Country Building Society – I was one of the founding directors with my father at the age of 27 — went very well. We were eventually bought out for a large sum by ANZ bank, so for the first time we had considerable funds to give to charity. My father had always encouraged giving back to the community, but we didn’t have that much to give until then. We decided to give back to the community. When we started, the major donation was to medical research, which is still a large focus of the McCusker Charitable Foundation that I have established.

Martin: And especially medical research into Alzheimer’s disease. That’s because of a personal experience within your family?

Malcolm: Well, that’s correct. My mother suffered from Alzheimer’s, and we appreciated what a huge toll is taken on those who have to care for Alzheimer’s patients and the enormous burden on them. So, we got involved in both Alzheimer’s research, supporting one of the major researchers to this day in our State, Professor Ralph Martins, and also in providing means whereby carers for Alzheimer sufferers could be helped. The McCusker Nurse programme has just celebrated its 10th anniversary. They do a great job for carers, who can call upon these nurses, who go to them and give them a lot of assistance, not just nursing but showing them what to do and where to go. We have had many letters from carers who have been helped in this way.

Martin: We had the experience of watching one of the finest legal minds I’ve ever seen, Geoffrey Kennedy,[19] get Alzheimer’s. It totally changed the personality of a very quiet, modest man. His son’s speech at his funeral explained how he was a different person.

Malcolm: Sir Lawrence Jackson, in the end, also suffered from Alzheimer’s. David Malcolm didn’t have Alzheimer’s, but he had something which was akin to it, affecting his brain. I went to see him a couple of times when he was in the nursing home, and it was tragic. The second time I went there with a couple of his former fellow students from law school, he didn’t recognise us.

Martin: Let’s go back to the law. What do you see as the change? You’re now 59 and a half years into practice, how do you read the practice of the law nowadays?

Malcolm: There seems to be a lot more high pressure, despite the technology which was supposed to make practice easier. I’ve always put myself through pressure but there were times when the Law Society members, back in the early days, could relax and go for a drink and socialise with each other. That doesn’t seem to happen much now. Everyone is busy, and some young lawyers are, I believe, overworked — slaves to the “billable hours” dictate.

Martin: Too many bloody emails today!

Malcolm: You rightly touch on that. In those early days, and until comparatively recent decades, people didn’t trundle down to the law courts with huge volumes of books and huge lever arch files of papers, because you couldn’t afford to produce all that. If you dictated a letter the typist couldn’t get it wrong, because we had nothing to fix it with. It had to be right first time.

Martin: I once fell asleep dictating.

Malcolm: So, there has been a great change, for good and for bad, because you can have much more access to information you couldn’t get back then. There was no internet, no photocopiers in those early days. It all sounds terribly crude now. If you wanted to produce, say, High Court appeal books, you had what they called a Gestetner machine and the typist would type everything onto a waxed sheet, which you would then turn the machine, by hand in order to produce the number of pages needed.

Martin: They came out purple.

Malcolm: Sometimes they did.

Martin: The late Alan Goldberg[20] referred to unpublished judgments as purple gutsers because he reckoned in his career he’d go down and his opponents would pull out this unreported decision in purple and he’d come a complete gutser as a result of it. Jamie Edelman,[21] as a Judge in the Supreme Court, said that in every case he knows what the decision is, but he’ll never deliver it ex tempore because there’s no such thing as a dusty judgment sitting in the back corner of the Western Australian Supreme Court library. Everything is on the internet, so you’ve got to go away and make sure it’s right. How do you think the junior practitioners should cope with this increased pressure of immediacy of response to emails and the demands of massive discoveries, the pressure of litigation?

Malcolm: Well, I don’t know how they do cope with it frankly. It’s a very changed world, this requirement that you respond to an email at once. What drives me almost mad, perhaps I am antediluvian, is that you send someone an email, then they send one back to you saying they’ve got it. Well okay, I know you’ve got it, the machine told me that. So, when you’re going through your emails you’re saying, who said that? But discovery has also become ridiculous. Something must be done about the extent of discovery, because it was never so large once. Sometimes discovery is given, even though it is in breach of the requirement of the rules, deliberately so that the person who receives the discovery is deluged with documents, irrelevant documents often.

Martin: The avalanche theory – hide the needle in the haystack and hope they won’t find it.

Malcolm: Correct. Martin, you haven’t mentioned one case that you and I appeared together in as fellow counsel.

Martin: Malcolm, you’ve done an enormous amount of pro bono high profile cases, the acquittal on appeal of the Philip Walsham convictions, the three young blokes, and Mallard was hugely important, rectifying a gross miscarriage of justice. The case you’re referring to is the Mickelbergs’ second application to the Court of Criminal Appeal.[22]

Malcolm: Third.[23]

Malcolm: Yes, but you were on the winning team!

Martin: Third. I only had a guernsey on the third, you were in there before me.

Martin: Mallard was a huge case. Malcolm: Mallard was a case undoubtedly of injustice and wrongful conviction. Ultimately it was found who the true murderer was. So, Mallard was not just acquitted. He was definitely innocent. When I took his case with James Edelman, now a High Court Judge, as my junior (he juniored me also in the Mickelberg case) before the Court of Appeal in Western Australia[24] there was undoubtedly hostility toward the appeal from the outset. Jamie was the first to notice. I had expected, when I opened the case for the appeal, that there would be immediate hostility towards the prosecution, asking “Why wasn’t all this disclosed?”, because there was a lot of material which had not been disclosed at Mallard’s original trial. Towards the end of the appeal hearing, Jamie Edelman said he felt we were going to lose, despite the strength of the appeal. The appeal went for an extended period of about ten or eleven days. At the end of it, the Court adjourned, and delivered a unanimous decision, dismissing the appeal, in less than ten working days. We (the appeal team) were shocked.

Martin: John Quigley[25] was involved as well, wasn’t he?

Malcolm: Well, Quigley wasn’t involved as counsel, but he was certainly involved in getting the material which enabled the case to go to the Court of Appeal. I’d take about two days to tell you the whole saga, but we couldn’t believe that this appeal had failed, and so quickly. I said, “Look, we’re going to go to the High Court and to win it,” which was a bit rash, but I had to say something to lift their spirits. To that, Jamie said, “Well, you know that the odds of getting special leave now, are statistically, about five or six per cent.” Anyway, we did get leave. We went to the High Court. I led Jamie. We had the support of three pro bono lawyers from Clayton Utz. Cynthia Sargent (now, sadly, deceased) was one. She was brilliant and meticulous. None of them had ever done criminal work before. All were absolutely committed and diligent. They were so incredibly hyperactive in the High Court – passing notes all the time to Jamie, who acted as fielder of the notes, passing some to me. Cynthia said to me afterwards, when we finally succeeded – we won five/nil in the High Court – “I’ve never done criminal law before, but I’ve got to tell you that this was the most rewarding experience of my entire legal career.” I remember, going back to my early days at law school, that on one occasion the then Dean, Professor Beasley,[26] said to us, words which stuck in my mind: “You law students are privileged, because you are going to embark on a noble career.” He paused, and said, “It’s noble because it’s noble to seek justice and it’s noble to correct injustice.” And I’ve always thought they were quite inspiring words – “noble to correct injustice”.

Fabienne Sharbanee: Malcolm, that was the question I had for you, picking up mainly on Mickelberg and Mallard, but all of those clients you acted for, for quite some period of time until you succeeded, what is it that drives you to stick with someone? Is it the gut knowledge that you’re coming from the right side of the fence?

Malcolm: It’s stubbornness perhaps, but stubbornness born of a conviction, based upon close and objective examination of the case. Take Mallard. I was asked to look at his case pro bono by the British Consul (I was his honorary legal adviser) Mallard’s parents were of British stock. They had approached the British Consul via their local member. I read the papers and said, “He’s exhausted all his rights of appeal.” This was about 10 years after he was imprisoned, I said, “it’s extraordinary that he was ever convicted on this evidence. You’ve got to get fresh evidence if we have any chance of getting back to the Court of Appeal for a review.” That’s where John Quigley came in because John Quigley, to his great credit, and defying convention, managed to get access to the DPP’s file. I still remember John ringing me excitedly one Saturday morning saying, “I’ve just discovered this previously undisclosed report. What do you think?” I said, “That’s going to get us back to the Court of Appeal.” And it did – by reference from the then WA Attorney General; Jim McGinty.

Fabienne: I guess I look at it, having been involved in legal work with you, you had run that race with the Mickelbergs for fifteen years, and obviously Lewandowski’s affidavit significantly changed the picture. So, we suddenly had a hook that we didn’t have. What was it before they got that?

Malcolm: My first encounter with the Mickelberg case was walking down Hay Street with Henry Wallwork QC.[27] We were talking about the jury decision in the Mickelberg case. I said, “Henry, there’s something wrong with that case.” He said, “Why?” I said, “Look, these fraudsters (whoever they were) were very clever. They wouldn’t go spilling their beans as alleged by the police.” In those days, verbals were used frequently by the police. The police alleged the Mickelbergs had confessed. Nothing signed. It didn’t sit right. Several years later, after they’d exhausted their rights of appeal, and indeed gone back for a further appeal and failed, Henry rang me and said, “Do you remember that conversation we had?” I said, “Yes,” and he said, “Well, are you prepared to take on a pro bono appeal to the High Court?” Which I did, for Peter. His appeal was successful in the High Court.[28] One of the Judges, Justice Deane,[29] was wavering as to whether to simply allow the appeal and quash the conviction, it was that close, but they sent it back to the WA Court of Appeal which said no, thumbs down again. And it just went on. There were three Attorney Generals’ references back to the Court of Appeal. On the second last one, we were certain we had it won. The police had repeatedly denied Peter Mickelberg’s allegations that the police had beaten him up, and Justice Wheeler[30] said to me, “Well, Mr McCusker, your clients said that they went and got a medical examination after the event.” I said, “Yes.” “Why wasn’t that evidence given at the trial?” I said, “I don’t know, I wasn’t at the trial.” I turned to Ray Mickelberg, and said, “Ray, go and get that doctor if you can.” He raced off, and caught the doctor. He was about to go and play golf, and was not happy but he got his notes of his medical examination and brought them to Court and I sought to introduce that evidence. The Court said, “Well on what basis do you seek to bring this evidence at this stage?” I replied, “In the interests of justice, your Honours, to prove that he was beaten.” So, we got the doctor’s evidence in. Peter did come back, he had marks on his body. I thought that since the police had sworn that they’d never beaten him, and had claimed that the alleged unsigned confessions were voluntary, we were going to win. Even The West’s experienced Court reporter, who hitherto had been a strong believer that the Mickelbergs were guilty, told me he thought we must win. But in its reserved decision, the Court said – well, yes, it looks as though he was actually beaten, but not to the extent that Peter has alleged! We could not believe it. Martin Bennett came to Court for Peter on the third appeal. Do you remember the blowing up of ex-detective Inspector Hancock by the bikies, obviously it was the bikies?

Martin: Billy Grierson.

Malcolm: Yes, and when Hancock died, when he was blown up, his 2 I.C. in the Mickelberg investigation, Lewandowski, came forward and confessed that all the alleged verbal confessions were fabrications. We won the appeal but even then, only by a majority.[31] Michael Murray was still against us. Chris Steytler[32] was the President of the Court of Appeal. He gave what I consider a brilliant and thorough decision. It was so brilliant that for the first (and only) time in my life (perhaps I should have done it more often) I wrote him a note of congratulations. Years later, when Tonya and I met Chris and his wife for lunch (after he retired) one day, Chris told me that one of the features of the Mickelberg appeal he recalled was the alleged forgery of Ray’s fingerprints, and said with a slight smile, “I get a Christmas card every year, anonymously, with a fingerprint on it.” Experts had given evidence to prove they were, or could have been, forged, but the Court just didn’t want to accept it. I remember David Ipp, sitting on the second last appeal, saying to me, “But Mr McCusker, if what you’re saying is true, then this is not just a conspiracy between Lewandowski and Hancock. A number of other police were involved.” I replied, “Yes. Has your Honour read the report of the Fitzgerald Royal Commission into Police Corruption?”[33]… But to answer the point you’re making; why did I stick with it? It is because I had looked objectively at the evidence and I concluded that there had been a miscarriage of justice, which had to be corrected.

Martin: The criminal justice system is an appalling system where people spend millions defending themselves. They get no recompense whatsoever, they’re financially destroyed, and now we’ve got this tremendous problem where people are sitting in jail, they can’t get bail. The length of time to get to a trial is so extraordinarily long. It’s a ruinous period. And the answer: we haven’t enough courts for judges to sit and hear serious cases. They’re fighting over courts because we didn’t build a big enough building.

Thaw-Thaw: The final thing that I wanted to touch on, you have certainly shared aspects of your journey and I think we will all agree that it’s been spectacularly successful, but we’d be interested in knowing what success means to you.

Malcolm: Oh, success generally means having the love of one’s family, and good friends. But alongside that, of course, success also means knowing that you’ve done the best you can. Look, none of us is perfect. I can think back on cases where I think I could have done that one better. I think of one case, when I probably asked one question too many. That can happen. The important thing in examination and in cross-examination is knowing when to stop. But success is when your judgment has been vindicated, and that injustice has been corrected, and that you have played a part in that. On top of that, hopefully, encouraging other people to be more philanthropic and to help others. I think that’s terribly important. When I retired as Governor, I returned to practise law. That raised a lot of eyebrows amongst my contemporaries. They think I’m crazy, or past it, or both.

They are probably right, but I love the law. It is tough, a hard mistress, but a very engaging one, and if you can use whatever skill you have acquired, to help others, that is very rewarding. To give you an example: On my return to practice, a lady rang me. I didn’t know her. She said, “Can you help my husband? He’s been convicted, wrongfully, of a sexual offence.” She said, “My husband would never do this.” She told me the story. I agreed, pro bono, to look at the papers. I said there was nothing wrong with the judge’s directions. “I’ve looked at the transcript, but where’s the evidence that your husband gave?” She said he didn’t give evidence. I said, “Why not?” “Oh, his counsel said not to.” I said, “What? So, it was the complainant’s word against no-one’s?” Anyway, to cut it short, we successfully appealed.[34] It’s tough as you know to win, on the ground of unfair trial due to the incompetence of counsel, so, that was a gratifying outcome. By the way, I think it’s high time that this country got rid of the principle of advocate’s immunity from suit for negligence. I can’t see any justification. It’s been abandoned in the UK, in New Zealand and in Canada. There should be a concerted effort to get rid of that common law immunity in Australia. Any lay person to whom I explain it, any non-lawyer says, “What? But doctors, accountants, a host of other professionals can be sued for negligence.” “Yes, but not advocates”. It makes us look bad. And, while I am still on a hobby horse, I think we as a profession should also urge for the appointment of a judicial commission, so that people who’ve got a complaint against a Judge may go to a Commission and lodge a complaint. There are two reasons for endorsing that: first of all, it will give the public more confidence in the judicial system and, secondly, I think it would, for (happily only a very few judges) be a deterrent against being discourteous, irresponsible in their language or in delaying a decision.

Nathan Ebbs: One of the criticisms, Malcolm, that you see publicly is that very well-to-do Australians aren’t putting money back into philanthropy and those causes, and one of the things that we look at when we look at you, there’s got to be something in that because at no point have you said, “Well, I have succeeded in that field,” the law for example, “and so I’m not going to do anything else. I’m just going to rest on my laurels.” Getting in a kayak and paddling out to save somebody, that’s you. And I wonder where does the drive come from?

Malcolm: Well, I’m not a psychoanalyst, but I think a large part of it comes from my family upbringing, my childhood. My parents, although they weren’t extremely religious, they had strong Christian principles, and imparted them to me. They always said that you’ve got to show charity by example, and give to others in need. Within their limited means, they did help other people. Actually, they were truly Christian, I suppose, because in those days the Church was a pretty central thing in the lives of many, and they met in the church choir. Bob Wallace, my master, was also very philanthropic. He was a strong member of Legacy, which looked after the widows and children of deceased war veterans. And I know that the legal profession had then, and I think still has, a strong view that people less fortunate should be helped, particularly in the legal sphere. Well before the Legal Aid Commission (which I chaired for 27 years when I was in my junior years), the legal profession had a system whereby anyone who had a meritorious case and was in real need of legal assistance, but couldn’t afford it, would get it pro bono. You may remember that Red Burt appeared pro bono for Beamish in his original trial[35] and his appeal to the High Court. He was unsuccessful, and he was always upset about that because he thought, rightly, that Beamish should have been acquitted. You probably don’t know what I’m talking about.

Martin: I do.

Malcolm: You can tell the others later. But it was a ‘Trial of the Century’ at the time, and it has much later been established that Beamish was wrongfully convicted. The trouble in those early days was that police verbals were the order of the day and you didn’t dare, as counsel, be too critical of the police. I was told by one the top defence lawyers back then to be very careful about cross-examining police and suggesting that they’ve done something wrong, because it will go against you.

Martin: There is still, perhaps, an element of ‘ends justify the means’: we’re convinced you’re guilty, so it doesn’t matter what means we use to secure your conviction.

Malcolm: It was once called, absurdly, ‘noble cause’, by some — only a few. Okay, we know he’s done it, we’ve got a gut instinct that he’s done it, so what we will do is fit him up. Avon Lovell wrote a book about that – “The Mickelberg Stitch”. Talking about things that need to be remedied, one of them is that something should be done about those police officers who cross the line. Nothing happened to the police in the Mickelberg case, or (so far) in Mallard’s case, or Austic.

Martin: Same with the police in Rayney’s case.

Malcolm: Yes, that’s right.

Question: Malcolm, how do you deal with pressure? What advice would you give to people?

Malcolm: Ron Harmer went down to the Court once to tax some costs for a case that I’d done. He told me that the Registrar said to him, “Well, what other disbursements were there?” Ron told me he replied, “I think, a bottle of red wine, to cope with pressure.” But I hasten to say I do not suggest that drinking red wine necessarily relieves pressure. The problem with pressure is if you can’t cope with it, obviously. Pressure is good for you. Pressure makes you work. To cope, I think you need to exercise, if possible. Martin, I know, would agree with that. And I think you need to now and again step back and say, “Look, this is pressure, but I can’t let it get to me because that will affect the work I do for the client.” You mustn’t let pressure, in effect, prejudice your client’s case.

Question: Malcolm, quick question on being bold. When do you know or how do you find it within yourself to be able to take that bold step that makes you test the boundaries, because we’ve heard these stories from you where you’ve clearly done something unprecedented?

Malcolm: Well, it probably comes back to the fact that, as I said earlier, I’ve read quite a lot of books about the art of the advocate. In fact, one was called exactly that. And the message that comes through is you must be bold, provided you’ve got right behind you. Fortunately, these days, it doesn’t happen as much as it used in the past, but if a judge is nasty to you, don’t knuckle under. Just stand up for yourself, not being rude, not being silly, but do stand up. As counsel, you are on your feet, not your knees.

Martin: It gets back to what you said at the beginning, preparation is the key.

Malcolm: Ah yes. What do they say about property – it’s position, position, position. Well, trial is preparation, preparation, preparation. You’ve got to be ready to be quick on your feet, but you won’t be quick on your feet if you haven’t prepared.

Question: Malcolm, we touched on the fact that law and justice aren’t necessarily the same thing, how would you suggest that as advocates we could advocate for justice when the law is against us?

Malcolm: Well, you can do it of course and I think it’s important, that if you think the law is in need of correction you should make submissions to the Law Reform Commission, to the Law Society, and perhaps submissions to the Government. We’re blessed at the moment with a very justice-minded Attorney General in John Quigley. The Government, under his guidance, is in the process of passing a Bill to allow a second right of appeal, directly to the Court of Appeal rather than via the Attorney General.[36] Under the present system, an Attorney General doesn’t have to give any reason, or even a response, to a petition for referral of a case of alleged miscarriage of justice to the Court of Appeal. A decision on Scott Austic’s first petition was delayed far too long – then rejected. It was only when a new Attorney General, John Quigley, was appointed, that a second petition was dealt with expeditiously, and his case referred to the Court of Appeal. So, I think that this new system (which has already been legislated in South Australia, Tasmania and Victoria) will be an improvement because it will give people who are wrongfully convicted an opportunity to go directly to the Court of Appeal. I read a very disturbing report once by a former Judge of the Supreme Court of Appeal in New Zealand, who has also been a prosecutor in his time. He said that in his view about four to five per cent of prisoners were wrongfully convicted. That’s frightening. It was Martin Luther King who said that “injustice anywhere is injustice everywhere.” And it’s very true. We can’t sit back and just say, “Oh well, too bad, it’s only four or five per cent.”

Question: So, what does it make you think then when you can get three against you in the Supreme Court and you go to the High Court, and you get five for you? What reaction do you have?

Malcolm: It speaks for itself, doesn’t it?

Martin: Malcolm and I had a case against each other, which I started as an articled clerk, and . . .

Malcolm: Oh, yes, did you have to bring it up?

Martin: Malcolm ended up with five judges in his favour, and I ended up with four in my favour and we won.

Malcolm: When you say you won, David Malcolm won.

Martin: It was Geoff Kennedy’s argument; David Malcolm took the credit for it. Kennedy won at first instance before Wickham and then got appointed to the Bench. David Malcolm went before the Full Court and lost spectacularly three/nil, but we went to the High Court, and we won three/two. Can I say, it’s the only time I’ve seen Malcolm temporarily lost for words because he’d done enormous preparation in the respondent’s appeal and he got up in front of the High Court and said, “If this is a case for the sale of goods, there’s no case at all in the history of England and Australian law that supports the appellant’s position. And if it’s a case for services, there’s only one case.” And so, Harry Gibbs,[37] in his nasally Queensland high voice, said, “So what, Mr McCusker! There’s a lot of law in Australia for which there’s no authority.”[38]

Malcolm: Yes, I was taken aback. It was a novel finding, that an “equitable lien” defeated a liquidator’s claim based on a preference. Francis Burt saw me in the street, about a month after that High Court majority decision. He came up to me and said, “Malcolm, that was a most mischievous decision of the High Court.”

Martin: Thank you very much for your time, Malcolm, we deeply appreciate it. We spoke to Tonya and asked what would be an appropriate gift for you, and Tonya said red wine. What we are also doing is donating to the McCusker Foundation. But this is for you. Lawyers are like wine. Some of them leave a bitter taste in your mouth, a lot of them are bland, not many of them are cheap and not many of them are value for money. Some wines, however, are spectacular. Some wines with age develop a maturity and a complexity that’s to be admired. This is a wine that was harvested in 1960 in South Australia in a particularly wonderful vintage and it’s a Penfolds Magill 1960. It was bottled in 1961, the year you were admitted, and it was such an outstanding wine that Max Schubert, the legendary founder of Grange signed it. The appropriate wine for you in your 60th celebration!

Malcolm: Thank you very much. Martin and I go back a long way, 40 years, and I’ve greatly enjoyed our professional and social relationship. It’s great to be here. I hope I’ve given those present some ideas, some thoughts about your future career. You started by asking what brought about my love affair with the law. Well, I think it is really a love affair. If you don’t love your profession, you’ve really got to get out of it, because it’s not good for you and it’s not good for your client. You can do a lot of good for people as a practising lawyer in many different ways, and I’m sure you’ve had the experience, that people look up to you for what you do and can do for them. So, thank you all for being here and thank you for listening so patiently.

End Notes

1 - Sir Francis Burt AC, KCMG, QC served as Judge of the Supreme Court of Western Australia from 1969 to 1977, as the 11th Chief Justice of Western Australia from 1977 to 1988, and as the 27th Governor of Western Australia from 1990 to 1993.

2 - John Toohey AC, QC was appointed a Judge of the Federal Court of Australia in 1977. He served as a Judge of the High Court from 1987 to 1998.

3 - Sir Ronald Wilson AC, KBE, CMG, QC was Solicitor-General of Western Australia from 1969 to 1979. He served as a Judge of the High Court from 1979 to 1989.

4 - Oscar Negus was a Judge of the Supreme Court of Western Australia from 1962 to 1969.

5 - Conroy, Warn & Sisson v R (1976) WAR 91

6 - Bank of New South Wales v Ronald W. Brown [1981] WASC 30 (26 February 1981) (Wallace J)

7 - Bank of New South Wales v Ronald W. Brown [1981] WASC 290 (22 October 1981) (Burt CJ, Wickham J, Brinsden J)

8 - Bank of NSW v Brown [1983] HCA 1; (1983) 151 CLR 514 (8 February 1983)

9 - Sir Albert Asher Wolff KCMG served as a Judge of the Supreme Court of Western Australia from 1938 to 1959, and as the 9th Chief Justice of the Supreme Court from 1959 to 1969.

10 - Mallard v The Queen [2005] HCA 68; 224 CLR 125

11 - Michael Murray served as a Judge of the Supreme Court of Western Australia from 1990 to 2012.

12 - William Pidgeon served as a Judge of the District Court of Western Australia from 1970 to 1977; Chief Judge from 1977 to 1982 and Justice of the Supreme Court of Western Australia from 1982 to 2001.

13 - Australia Act 1986

14 - Edith Mary Maud Cameron and Others (Appeal No. 29 of 1985) v Lady Barbara Marshall Murdoch and Others (Western Australia) [1986] UKPC 9 (12 February 1986)

15 - Metro Meat Limited (Appeal No. 31 of 1984) v Fares Rural Co. Pty. Limited Rachid Fares (Western Australia) [1985] UKPC 1 (21 January 1985)

16 - Griffin Coal Mining Company Limited v The State Energy Commission of Western Australia (Western Australia) [1984] UKPC 52 (10 December 1984)

17 - David Kingsley Malcolm AC QC served as the 12th Chief Justice of the Supreme Court of Western Australia from 1988 to 2006.

18 - On Monday, 6 November 2000, 49-year-old Ken Crew was attacked at North Cottesloe beach by a great white shark in waist-deep water just 30 metres from the shore, as he and fellow swimmers were exiting the water.

19 - Geoffrey Kennedy served as a Judge of the Supreme Court of Western Australia from 1981 to 2001.

20 - The Hon. Alan Goldberg AO QC served as a judge of the Federal Court of Australia from 1997 to 2010.

21 - James Edelman served as a Judge of the Supreme Court of Western Australia from 2011 to 2015. He was appointed to the Federal Court of Australia in 2015. In January 2017 he became a Judge of the High Court of Australia.

22 - Mickelberg v The Queen [2000] WASCA 163 (15 June 2000)

23 - Mickelberg v The Queen [2004] WASCA 145 (2 July 2004)

24 - Mallard v The Queen [2003] WASCA 296

25 - The Hon John Quigley was appointed Attorney General of Western Australia in 2017. Prior to that, he was a member of the Western Australian Parliament for 16 years, and a lawyer for the Western Australian Police Union for 20 years.

26 - The University of Western Australia Law School was born in 1927. Professor Frank Beasley became the first Dean and the only full-time staff member.

27 - Henry Wallwork was appointed QC in 1980. He served as a Judge of the Supreme Court of Western Australia from 1989 to 2002.

28 - Mickelberg v The Queen [1989] HCA 30; 167 CLR 259.

29 - Sir William Deane AC, KBE, QC served as a Judge of the High Court from 1982 to 1995, when he resigned to be appointed Governor-General.

30 Christine Wheeler served as a Judge of the Supreme Court of Western Australia from 1996 to 2010.

31 - Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13.

32 - Christopher Steytler AO QC served as a Judge of the Supreme Court of Western Australia from 1994 to 2009.

33 - The 630-page Fitzgerald Report was tabled in Queensland Parliament in July 1989. The Inquiry changed the policing and political landscape not only in Queensland but across Australia.

34 - Jeffery v The State of Western Australia [2018] WASCA 219

35 - Beamish v The Queen [1962] WAR 85.

36 Criminal Appeals Amendment Bill 2021, introduced 11 August 2021 by Mr J.R. Quigley (Attorney General).

37 - Sir Harry Talbot Gibbs GCMG, AC, KBE, QC served as a Judge of the High Court from 1970 to 1981, and Chief Justice from 1981 to 1987.

38 Hewitt v Court & Evans (1983) 149 CLR 639