6 minute read
Book review: Chester Porter - Walking on Water
Chris Patterson*
One of the cruel realities of being a barrister is that you spend your career practising with the knowledge that perfection is a wonderful aspiration but impossible to achieve. If you obtain a reputation at the bar for being able to "walk on water" then you are possibly as close to being perfect as any mere mortal barrister can get. I have read a fair number of books written by retired lawyers and several judges reflecting on their careers in the law. Such books contained one or more pieces of wisdom that were usually only obtained through the cruel process of making or observing others making mistakes. It is significantly less traumatic to learn from others' mistakes. Chester Porter QC's book "Walking on Water: A Life in the Law" stands out as being in a class of its own. Porter QC provides a fascinating and insightful glimpse into the significant changes in law and Australian society during his 52-year career covering the second half of the 20th century.
A recent lunch in Westhaven with a client resulted in a copy of Walking on Water landing on my desk a week later. The client was acquitted of a charge of murdering a drug dealer following a three-week trial before jury in Sydney during the mid-1990s. Chester Porter QC was the senior barrister engaged to defend him. I had heard of but never met Chester Porter QC during my decade at the New South Wales bar.
Chester Porter QC was called to the New South Wales bar in 1948. He took silk in 1974 and retired on 30 June 2000. He was counsel assisting the Australian Royal Commission into the convictions of Lindy and Michael Chamberlain. The tragic disappearance of the Chamberlain's daughter Azaria and the legal controversies that followed will be generally known to most barristers, even if they have not watched the movie featuring Sam Neil on the subject. On the topic of famous legal cases that made the big screen, Chester Porter QC represented Detective Sgt Roger Rogerson on bribery charges, which later became the subject of the movie "Blue Murder”. Other notable cases in which he was counsel included acting for Judge John Ford, who was accused of attempting to pervert the course of justice.
Very few aspects of human nature and frailty are missing from Porter QC's book. Generalists will be encouraged that it is possible to reach the highest levels within the profession, at least in NSW, without choosing to specialise. Of particular interest to me was the third to last chapter which is titled "Deciding the Facts". I was surprised and delighted to find a chapter addressing the issue of factual analysis. It is a topic that I have been teaching for nearly a decade via annual national workshops for the New Zealand Law Society and before that for the Auckland District Law Society. The chapter opens with the following paragraphs:
"Some cases involve only questions of law. Others involve both questions of fact and law. However, the vast majority of cases are decided solely on the facts, with no dispute as the law applicable.
It is not only criminal cases that so much depends on questions of fact. Even in giant commercial cases there are inevitably disputes as the facts, in particular what was said by those involved.”
Porter QC provides a few golden pages in the same chapter devoted to the role and performance of witnesses during trials. Much of Porter QC's observations and advice concerning witness performance should be etched in the memory of every barrister as compulsory advice to provide to clients and the witnesses they want you to call to give evidence.
A barrister does not earn the nickname 'The Smiling Funnel-web” without mastering the art and science of cross examination. Throughout his book, Porter QC lays out the basis for why one of Australia’s most notorious criminals Neddy Smith would advise those facing a serious criminal charge to “Get him regardless of the expense.”
Porter concludes the chapter with the following two paragraphs, which sum up much of why I continue to teach factual analysis:
"Our appeal courts have done very well indeed in deciding questions of law, but the mechanics for correcting errors in deciding questions of fact in civil and criminal cases are few and inadequate. Our great lawyers tend to become hopelessly involved in abstruse and difficult questions of law. They tend to regard questions of facts unworthy of their attention. One superior English Court of Appeal actually said as much, but many years ago.
The process of fact-finding courts is not well understood, under-researched and calling for improvement. Hopefully new, and fresh minds in the law, perhaps those of woman in particular, will affect substantial improvements.”
I couldn't have said the above any better and it is no different here in Aotearoa.
“Walking on Water: A Life in the Law” is considerably more than the usual post career reflection of a highly respected senior barrister. It contains insights into how society and Australia, particularly New South Wales, which is not too dissimilar to New Zealand, have changed and where important reforms and developments in the law could improve outcomes for those the law is supposed to serve. It is possibly a little unusual to end a brief book review of what is essentially a memoir with an unattributed quote from an unnamed barrister. However, I am going to so do. Porter QC recalls being told by an older barrister in 1948 that: "In this game, Chester, there will be times when you walk on clouds and there will be others when you walk in deep despair." The unattributed quote strongly resonated with me. The way in which Porter QC reconciled the sentiment of the quote in his book was nothing but masterful. Chester Porter QC passed away on 15 March 2021. His book provides a small but lasting part of his legacy. Despite being published thirteen years ago, much of his advice remains relevant to a trial lawyer today as it was throughout his career.
Imprint: Random House Australia https://www.penguin.co.nz/books/walking-onwater-9781742743646
* Chris Patterson is an experienced litigator and dispute resolution specialist practising in Auckland.
