District Court A View from the Bar Table
firm guidance, not just on the law but also on the facts. O’Dea DCJ, when a jury returned a not guilty verdict, threw his pen down and exclaimed; “You didn’t listen to a word I said”.
By Richard Utting
A friend of mine tackled a District Court Judge at a social gathering as to why he didn’t uphold his ‘no case’ submission. “Ah, I suppose I should have” was the reply. “But I thought I could walk him through the jury”.
When I was admitted in 1975, the District Court was a mere 5 years of age. Prior to its creation, criminal and civil law was the province of the Court of Petty Sessions/ Local Court and the Supreme Court respectively. The District Court became the muchneeded middle tier. It was based in the Supreme Court for criminal cases and had four Judges. It now has its own building and thirty judges. Had it not been for the generous judicial pensions, it may have been difficult to recruit Judges to the new court. However, the pension made it very attractive for lawyers, approaching sixty years of age. Do ten years as a Judge and get the pension. As a result, the early Judges were white men in their late 50’s. Associates and ushers were the same. Associates were typically ex-service officers, ushers, ex-NCOs. The court was very WASPish. One of the main problems in criminal law trials then was the admissibility of police interrogations. Verbal police interviews were not recorded, apart for notes in pencil, made
22 | BRIEF APRIL 2021
He couldn’t.
on unnumbered sheets of foolscap and unsigned by the accused. Where the content of these verbal interviews was significant, a voir dire was held as to whether the admissions were voluntary or, whether they should otherwise be excluded.
I had a trial before Ackland DCJ. Chris Zelestis was prosecuting. It was in Court 7 Supreme Court thus it was before 1982 when the court moved into the Central Law Courts. His Honour was very even handed. He treated everyone, counsel, accused and jury with contempt. The trial lasted three days. My client, a vegetarian, was remanded in custody during trial.
Good luck trying to persuade a conservative white judge that your indigenous client was beaten up by the police or that the coppers were lying to get a drug dealer convicted. However, the same evidence could be placed before the jury.
It was unusual for an accused to be granted bail once a trial started, the integrity of the trial process was thought to be too important. They would be carted off to the East Perth lockup for the evening.
‘Verbals’ became so notorious within the community, that juries would not convict based on one. The High Court eventually ruled that when a prosecution case relied on a ‘verbal’ the jury had to be given a warning on the dangers of convicting on such evidence. This led to the videoing of confessional material which, in turn, halved the length of trials.
The lockup could be quite lively. Gambling was then illegal except for a few establishments “tolerated” by the police. Every now and then the police would decide to raid a “tolerated” casino to prove it was not, in fact, tolerated. Appropriate warning was given before the police descended – that meant that the regulars would clear off.
Some Judges thought that juries needed
Thus, the raid would net a few dozen
