Australian Biography

Dame Roma Mitchell - full interview transcript

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We were talking about the fact that men and women's pay was not always equal even in the legal profession. When you went into a legal practice, were there any women working there, or were they all men?

No women lawyers, of course, we had our own secretarial staff, all women. They were receiving what was the pay, but then they were all women doing that sort of work and so one didn't notice it so much. I think I started off on much the same sort of terms as the men who went into other firms, which was very minimal in those days. We received very little but we all expected that, you know, as we walked in. But of course I saw it in government offices. I saw it up at the court where we had government employees in what we called the 'master's office' in those days, where documents were filed and a lot of the court proceedings were really exemplified, and even as Article Clerks we used to visit those offices and we always felt we had to learn from the people employed there, and in that case we all realised that there was a man and a woman there and that the woman was really, she was the expert, and very nice. The man was very nice too but see he received a lot higher salary than she did because he was a man. Now he happened to be a bachelor. She happened to be unmarried, too, but I knew that she was contributing to the support of her parents. So it was one of those things that showed how unfair the system was.

Did you go into that firm as a solicitor or a barrister?

Well, I went in as both but I really always did the barrister's work, that was what we did there mainly. And ...

So in South Australia you could practice as both?

Could practice as both so in effect we did the solicitor's work preparing the cases as well as the bar work in court. We did very little of other type work, very little conveyancing, that sort of thing. It was mainly the court work.

Do you think it's better if the solicitors and barristers, the two professions are one, or do you think a divided profession is better?

I haven't got any very strong views on it. I think it's largely an historical accident. I think it works well either way. In South Australia, although in law the profession is still undivided, there are a number of people who have formed themselves into what they call the separate bar and who do nothing but bar work. I think now that the law has become so much a matter of division in the law itself, I'm thinking of the complications of the company law for instance, corporations law and trade practices and various parts of the law which have grown up in the last 15 years or so.

People have to specialise much earlier, which in some ways is a pity, but they not only specialise they specialise into just doing the Bar work. I do think it's good if people want to go to the Bar, this has always been considered a good thing throughout Australia, even in New South Wales and Victoria. I think it is good if anybody has a few years of doing the solicitor's work and knowing what the nuts and bolts are all about and then moving to the Bar. But I haven't any strong views as to whether people would be better served with a divided or an undivided profession. I think where the profession is undivided people still have to specialise and still have to do a particular type of work, so you'll find some go into court and some don't. It eventuates that way and I suspect, I think, that's what happens in America too.

When you started, you did a bit of everything?

Yes.

And was there any part of it that you enjoyed more than any other, or was there any part of it from which you were excluded because you were female?

Well, I did virtually no criminal work when I first went into practice and I think that is a very good court in which to start to get experience. But you have to remember that women did not serve on juries in South Australia, in fact they were not able to serve on juries until after I went onto the Supreme Court bench. So it was an all male jury, a male judge, the only female person in court would be some poor unfortunate witness who would be accompanied by a member of the women police force, because the women police in South Australia were sort of a separate body of the police. They did only what would now be regarded as welfare work, virtually. And it was not thought appropriate for a woman to hear, and still less to use, some of the language that might be used in the court. And so I felt I would be doing a disservice to the client if I went into the Criminal Court, that I would have been an object of curiosity myself. So I rather eschewed the criminal work. I did do a little of it, but very little. Otherwise I did anything.

Did you enjoy it? Did you really find that you'd found your niche and found good about what you'd trained in?

Oh yes. I always enjoyed it. It was, it was right for me.

Why? What was it about it, do you think?

Well, there's a certain amount of excitement in court work I suppose. It, the Bar and the acting profession are to some extent allied it seems to me. There's a lot of preparation for a case. And, although some people appear flamboyant, they're not going to be successful unless they've done that preparation. So there's a lot of getting ready for a case which is a big case. Then there's the court atmosphere which is an atmosphere of its own. And then there is either the high of success or the low of non-success.

There's a lot of excitement attached to it. But apart from that of course, there is the interest. The law itself is interesting and the facts with which lawyers are concerned are interesting and we do tend to become instant experts for a while. You have to study a particular form of science or anything of that sort and for a while you really become quite knowledgeable about it, you forget it again of course afterwards. But there's all that interest and variety I think.

But the essence of it for you was the drama?

No, I don't think so. I think the essence was getting justice. Because you have to remember that a lawyer is bound to accept that the client is telling the truth so that you're not sitting, you're not there to be a judge, you're there to put that case forward as it's given to you. And so therefore your aim is to establish the truth of that case. You don't, or you shouldn't and I don't think you do, sit back and reason, well, it's probably not true. That's not your role at all, so that you're caught up with presenting the case as it's given to you and with establishing the rights of the client. I think that is really the main interest.

Did you feel you always did get justice, or was there ever an occasion that maybe still burns a bit where you felt that justice was not done?

Yes, I think there's always some such occasion. The ideal is that one doesn't get personally involved and if one is personally involved it's probably not a good thing. But there's always the odd occasion where one feels that judgement was wrong. And I think the main thing is not to have to feel, well, it's my fault. I suppose you do always feel it's my fault in a way but it's much better if you can think that the judge was wrong than if you think you were wrong yourself.

Or didn't do a good enough job?

Or didn't do a good enough job. That's why I say preparation is so important because if the preparation is there then you're likely to do a reasonable job. Not always of course. Nobody's going to present a perfect job.

Do you remember any specific case where you feel, let's put it this way, the judge was wrong?

Yes, I can remember one case years ago where a small boy suffered, had a fractured arm and was in a country hospital where his cries of pain were not heeded and he suffered very serious injuries, and in those days it was practically impossible to persuade any member of the medical profession to give evidence concerning alleged negligence on the part of another member of the medical profession. Now I acted in that case and two of the leaders, whom I shall not forget, were very strong and did come forward and did give evidence as to the fact that there was negligence, but then ranged against them were about six others and the judgement went against us. And I've always felt that was a wrong judgement. Took it on appeal and established that the judge had made an error in one particular crucial fact but the High Court didn't, still didn't feel, that it was sufficient to interfere. I've always felt that judgement was wrong. It was mainly that I don't think that the people who gave evidence for the defence should have. I don't think they were honest.

It was impossible to break it down at that stage although, as I say, I had two leaders who were strong enough to come and point to what was wrong. Of course, it was before you had all the aids to diagnosis, I must confess that. But this small boy was regarded as being a nuisance and they should have realised that he was going gangrenous and they didn't. So yes, that's one I feel very strongly about. I don't know what became of the little boy. He'd be a middle-aged man now.

Was there any triumph that you had, where you really didn't expect perhaps to win the case, but did so? Do you remember any particular moment of great joy after a case?

Oh, there was often a moment of ... like that. But in fact the last case in which I ever appeared as Counsel, and it went on in various forms with various actions for months, was for the South Australian members of the AWU, Australian Workers' Union, who had been dismissed from their posts from the Head Branch of the union and this went on in various forms for months. It was ...

They were union officials?

Union officials. And it was very serious for them because there were months without any income at all. In fact, one of them (they all did well later on) Jack Wright, who became Deputy Premier, he went back shearing, hadn't been shearing for years, went back shearing and they were good. They didn't complain. Well the judgement in that case, in the final case, we'd kept on winning and then keep, you know, other things'd come, was given after I went onto the bench and I didn't think we had a hope of winning the whole lot and we did by a two to one judgement and they still rejoice about it. They still carry on about it, although they've all gone into — or some of them, one or two of them are not living now — political careers in which they were very successful. But that was quite a triumph. For them as well as for me.

Why were they dismissed and who dismissed them?

Oh, I forget all the ramifications now, but it was to do with the elections and there were always queries about elections in that particular union because it spread throughout the state and throughout the country, and they had to take their voting from shearers' sheds and the question was whether they'd, first of all, had an honest election and then whether the subsequent election was an honest election. And oh, there were all manner of ramifications about it. It was really, I suppose, union politics but I didn't ever quite understand those, I didn't ever try it, it didn't matter for what I needed. It didn't matter for them but it must have been one wing of the union had strong views one way and one wing had strong views the other way. But that was a very long case which I didn't expect to win, certainly not in its entirety. And which was a triumph. But of course there were others and they were important at the time. And then you go on to the next job.

You've said that as a lawyer it's your job to defend the person who's your client?

Yes.

And to believe them?

Yes.

Have you ever been in a situation where you in your heart didn't believe your client and really felt that they were guilty, when they were not? When they were pleading that they were not?

No, I wouldn't have ever let myself feel that. I think that is one of the elements that you have to train yourself in. That you do not, you are not, the judge. There have been odd occasions when I've said to a client, well, I believe you because I'm bound to believe you, but it may be very hard to convince a court that way. So I suppose you expect, you're expressing some disbelief in that respect but then you do know that it's not for you to decide whether you believe or don't believe ,because if that were not the situation some people would never get a defence. They'd never get a Counsel to defend them if Counsel allowed himself or herself to be the judge also.

Yes, but the system depends on your speaking for somebody who may in fact be lying?

Quite.

And you have to act as if you don't think that he or she is lying. Does that bother somebody who's so concerned with fairness?

I don't think you act as though you don't think he's lying. I think you act as though your opinions are not what are an issue. It's his, it's what he says, his instructions, that's what's at issue. You see, otherwise you confuse the task of the judge and the task of the defending counsel. It is a very important situation. Of course, on the other hand, I think the public sometimes thinks that a barrister puts forward a defense knowing that it's not true. Well of course that again is completely unethical and nobody with any ethics would do that. If the client says, 'Well I'm going to say this but it's not really the fact', well then you say, Well, I'm sorry, I can't appear for you.'

Have you ever been in a situation where you've declined a case?

No, I don't think I have, no.

But you would have been perfectly prepared to do that?

Oh, you'd have to, you'd have no alternative. No alternative at all. The only difficulty that a person, a barrister, can be put into is if halfway through the case, especially in a criminal case, the accused says something which is in effect an admission of guilt. Then the barrister is in the terrible situation that he or she can't throw over the case because that would be unfair to the accused, can't put the accused into the witness box to tell a lie, can't cross-examine the prosecution witnesses to show that they're lying, so really proceeds, if the client wants him or her to proceed, with hands tied behind the back. 'Course the best thing then is for the client to get somebody else. But once or twice people have been put in that unenviable position, which'd be really dreadful.

One of the things, I suppose, that strikes people looking from outside at the legal profession is that it deals with matters, especially in the criminal law, but right across the board, of really great philosophical weight?

Yes.

Things that have great social ramifications, psychological ramifications, in what is a sort of fairly narrow technical framework in order to avoid falling over into any of the areas that you've described. Did you ever find that frustrating?

Ah, no, I don't think I found it frustrating, but I think it's one of the things that I and others recognised as a problem and I don't suppose we found the answers. It's certainly a matter that occupies the mind.

Often in those discussions, the question of the adversarial as opposed to the European system of law comes up. What do you think about that? What do you think of the English tradition?

Well, I have always been a very strong proponent of the adversarial position but there's something to be said for the inquisitorial one. The problem is, I think, that we've come up in the strong belief that nobody should be obliged to incriminate himself. And sometimes that doesn't mesh very well with the inquisitorial system. I think on the other hand that there's one modification that my Commission of Inquiry into the Criminal Law recommended, that has been adopted here that I think is a good one, and that is the abolition of the right to make an unsworn statement in the criminal court.

I think that was ... well, it was unedifying, to say the least of it. In a case of, perhaps, several people charged with rape of a young, perhaps a young girl, having her stringently cross-examined and then having the accused one after another making a statement simply without being cross examined, now that can't happen now. And although nobody's obliged to incriminate himself, if you have evidence for the prosecution which is all one way and the accused chooses not to give any evidence to the contrary, the jury may be told over and over again that it's not for the accused to prove anything, they're almost certainly going to convict him in those circumstances if the evidence for the prosecution is credible. I don't have any problems with that, I think people ought to be able to give evidence and be cross-examined if they maintain what they say is true.

I suppose I was asking you that question in a personal way, in that here was this girl who'd been well-known for saying, you know, the truth must be told, what's fair must prevail, then in a way having to rein in her horns to really act in a very precisely determined role, and I just wondered whether it ever gave you difficulty?

No, I don't think so. You see, I think one of the tenets of the legal profession is that although we have a lot of precedents we'll always say they're only made to be distinguished. In other words, they're made for you to find a way round them; if justice isn't being served then your ingenuity should assist you to find a way around them. So I think there's always that feeling, that you don't let yourself normally be hemmed in. You find some way of getting over what your instructions are is the truth.

Did you ever defend, successfully defend, somebody in a case, where afterwards in your own mind a guilty man's gone free?

Well, once again, I don't think it is appropriate for a barrister to be asking that question. You really wouldn't keep your sanity if you ... perhaps you don't keep it, but you wouldn't keep it if you put yourself in the position of being judge or jury plus defending counsel. Ah, you may think, well, I think he was possibly lucky but you don't really make the decision as to guilt or innocence. You shouldn't.

You said you didn't do much criminal work as a barrister because being in the Criminal Court was a bit of a problem because there were not women serving on the juries?

That's right.

And that you had in fact been instrumental in making some kind of effort in that direction. Could you tell me a little bit about what happened over women on juries in South Australia and what part you played in it?

Well, over quite a number of years, the women's organisations including the National Council of Women had been pressing for women to serve on juries, and it was not thought desirable to have women volunteer for service on juries as they did in Queensland I think, and so it was thought desirable that women should be included on juries. It wasn't a judgement by your peers if half the population was deprived of the right of sitting, or the duty of sitting. And they'd made various representations over the years. At one stage, and I don't remember precisely the year but it would have been in the '60s, the National Council of Women asked me to lead a delegation to the then Premier, Sir Thomas Playford, on this topic and previously they had reached the situation in which the Premier had said, "I wouldn't like my wife to serve on a jury." So I put a bit of work into it and worked out the arguments that would appeal to him — the National Council of Women represented however many thousands of women it was, and they were unanimous in all the various arguments in favour of it, and I put the arguments, led the delegation and much to the surprise of everyone he said, "Well yes, that sounds very reasonable. I don't see why we shouldn't amend the law." But then he went back and talked to his ministers and some of them said, "I wouldn't like my wife to serve on a jury." So he did nothing about it. And a few months later there was a change of government and the Labor Government which came in, it would have had Mr Walsh I think as Premier then, but Don Dunstan was Attorney-General and he was very keen on these reforms which related to women and they introduced the legislation. I was always a bit sorry because I knew that Sir Thomas really had reached the conclusion that it was quite a proper thing to do and he'd been thwarted in it. So in fact women didn't come to serve on juries until I think it was the beginning of 1966 or 1967. Anyway, it was after I was on the bench.

Now, could you tell us a little bit about the way you came to be on the bench?

Yes, what happened was that at that stage the numbers of Supreme Court judges were defined by the statute and there had been six judges. Now the number isn't defined by the statute so another judge can be appointed without any legislative problems. But there was an amendment to the Act appointing, making it possible to appoint, a seventh judge and everybody knew that the seventh judge would be appointed. There'd been lots of speculation. Always was in the profession. And it didn't occur to me it was at all likely, at all possible, that I would be invited because no woman had ever been on the bench and Don Dunstan, who was then the Attorney-General, asked me to have lunch with him in Parliament House. And I did. And much to my surprise he asked me if I'd accept an appointment. Jessie Cooper who was one of the two first women in parliament in South Australia, and that wasn't until the '50s, was always very furious afterwards because she'd seen me having lunch in Parliament House and it hadn't occurred to her what the purpose was. In fact, it was about six weeks after that before I went onto the bench.

And you were genuinely surprised?

Absolutely surprised, yes.

And what did you think when you went home that night and thought about it. I mean, did you say yes straight away?

I said yes straight away because I thought I should accept the appointment. I thought I owed it to women. I really didn't want it at that stage. I was enjoying life as a Queen's Counsel and I really didn't want to go onto the bench. And I was very unhappy for the six weeks preceding my going on the bench but I felt I should take it. And I thought I wouldn't enjoy it. And I knew I did enjoy my life as it was, but I was wrong. I did enjoy it. I enjoyed it, it's different. There's no excitement in connection with a judge's life but it was still interesting all the time.

Your motivation, you said, was because you felt you owed it to women?

Yes, well I think I did at that stage. You know, if you don't do a first in something then there's no follow on.

Was that your only motivation?

I think it was my main motivation because I would have preferred to wait. Because, as I say, I was enjoying what I was doing.

Actually, before we go on with that, I missed a step in all of this. I didn't get you to be a QC before I popped you onto the bench. So I think I better ask you about ... so I'll pick that up now.

What was the pinnacle really for you of your practice at the Bar? When did you really realise that you had a very successful career on your hands?

I think it was when I was appointed a Queen's Counsel. At that time in South Australia, members of the Bar didn't apply for silk as they did in the eastern states. It was an appointment by the government on the recommendation of the Chief Justice. And the Chief Justice, Sir Mellis Napier, had been there for many years on the same bench. I think [he] did not really confer with his brethren on these topics but made the recommendation and I really was very pleased about that one. I think it was the pinnacle.

Did you like being a QC?

Yes, it was good because although one does more difficult work and some of the bigger cases, it seemed to me not so much of a strain of jumping from one thing to another. One could concentrate more.

Why do you think that in the present sort of hierarchy of the kind of work that people seek out in the law, commercial law and law relating to those aspects of things has somehow a higher status? Certainly, higher earning power than those who are involved in criminal law?

Well, it has a higher earning power because there's so much money involved. I think it has a status because the law relating to corporations has become so very complicated. It really is a very complicated part of the law and it gets more rather than less complicated. So that to become an absolute expert in that really does betoken something.

Do you think it's an area that could do with some simplification and reform?

I'm sure it is. I don't think I'm alone in thinking that. It's really got out of hand in recent years.

[end of tape]

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