Pearls and Irritations

It was a particularly technical legal point. The colleague was an experienced trial advocate with a case in which he felt there was a slim plot of fertile ground on which he might be able to appeal. But he just couldn’t quite work out how all the pieces might come together.

His written materials raked over the broad areas of where he thought success might lie but were far from comprehensive.

He filed his grounds with words to the effect: “It’ll be alright. Refshauge’s on this Bench. If the point is in there, he’ll find it.”

Richard Refshauge’s thoroughly forensic approach, to say nothing of his love for the law and his compassion for the citizen and their rights, has been widely hailed for a long time.

But now, after a decade as a Judge, and almost another as an Acting Justice, capping a half-century in the law, the man himself has departed the Bench for the final time.

Praise from those who have worked with him – from the Bench, the bar and beyond – has been as comprehensive as one of His Honour’s judgments.

Doyen of the ACT Bar John Purnell SC spoke of Refshauge’s appointment to the Bench in 2008 being unique in that it was “spectacularly approved by basically the total profession”.

“He was a great and learned judge whom all counsel enjoyed appearing in front of,” Purnell said. “As the Drug Court, he was magnificent and forgiving.”

As Director of Public Prosecutions for a decade before his elevation to the Bench, Refshauge had “distinguished himself in the Court of Appeal – this was his forte”.

Magistrate James Lawton, who previously served under Refshauge at the Office of the DPP, noted the Court of Appeal work allowed his boss “to maximise his passion for the law”.

“As DPP, he was as fastidious with the law as he was when appointed a Judge,” Lawton said.

Critically, he also took time to look after his young prosecutors, inviting them to lunch, usually in pairs, and usually at Boffins, the restaurant attached to University House.

“He would take the time to learn about them all,” Lawton recalled. “He ensured that a comprehensive Continuing Legal Education program ran at the DPP, inviting external speakers to attend.”

In 2006, Lawton, then still a prosecutor, presented a CLE unit on court etiquette, in which the opening paragraph acknowledged that it was a “shameless reproduction” of an earlier Refshauge paper on the subject.

Not everything went smoothly at the DPP, however, Purnell recalling the infamous “Saudi Bill” case, involving, as Purnell relates it, an accused [Mr Yilmaz] who was “a jealous lover and the fiance of a working girl” who together entered the apartment of the Saudi Arabian Trade Attache [known in Canberra nightclubs as “Saudi Bill”] and “therein stabbed the attache 37 times causing death”.

Mr Yilmaz pleaded not guilty and relied upon two defences: he was not the stabber and, if he was, he was mentally impaired. Notwithstanding the way he ran the matter, the accused chose to give evidence.

“So surprised was Richard that he forgot to suggest in cross-examination to the accused that he had murdered the attache,” Purnell remembers. “This provided an avenue of comment to the jury by the defence counsel [Purnell acted for Mr Yilmaz] that obviously struck a chord … So incensed was it by the acquittal, the Saudi Government threatened to cease trade with Australia.”

Refshauge himself doesn’t back away from the heavily publicised case, even using it in his lectures to ANU students when teaching Evidence in later years, and saying simply of his role that it was “not my greatest triumph”.

Even earlier, Purnell remembers Refshauge, who was the 1972 president of the ANU Students Association, representing many students as a solicitor after gaining his LLB in 1975.

“Richard excelled himself on Friday ‘Motion Days’ wherein Sir Richard Blackburn [the ACT’s first Chief Justice] presided and Richard was the star performer, always prepared and always with an armload of authorities. He was known as Sir Richard’s darling.”

That attention to detail would develop into a body of ACT caselaw, particularly bail law, Refshauge’s unwavering focus on properly deciding issues regarding the liberty of the citizen extending to sitting to 6pm one Christmas Eve.

Magistrate Lisbeth Campbell pointed out at the ceremonial sitting marking her departure from the bench after a quarter-century: “We are our own jurisdiction. We now have an Act on every possible topic rather than adopting what was in NSW … Dare I say it, maybe before Richard’s advent really, there was no real resident legal historian or philosopher committed to creating a body of local jurisprudence.”

Campbell has kept “filing cabinets full” of Refshauge decisions, because his lengthy judgments commanded magistrates to give reasons even for simple drink-driving matters. He also insisted on defendants standing and audibly entering pleas of guilty (closing the loop for those who later sought to backtrack by blaming advice) and when granting non-conviction orders.

“It pulled us all up,” said Campbell, who had been on the bench a decade before Refshauge was appointed a judge. “I think he introduced a real jurisprudence … we introduced our own tests …. It made me question my approach to every matter, particularly sentencing.”

Shortly after his appointment as a judge, I’m told that Refshauge quietly expressed to his former DPP colleagues his disappointment that at lunchtime his fellow judges were more interested in complaining about members of the profession than “talking law”.

He became known to most members of the profession when they completed their Graduate Diploma in Legal Practice, as he would give an entertaining presentation on pleadings. His love of procedure is reflected in the fact that he has remained editor of the loose-leaf text on Civil Procedure for the ACT for, as one wag put it, “as long as he has been alive (or close to it)”.

When a barrister, Lawton would explain to clients who were to be sentenced by Refshauge that “I will ask you maybe two or three questions, then the Judge will take over the questioning and ask you lots of questions”.

This care for the citizen is evident beyond the courtroom.

Refshauge has been integrally involved with Directions Health Services since the respected organisation commenced operations in 1977.  He has been a board member, board chair for 20 years, patron, and then chair again.

Chief executive Bronwyn Hendry observed: “Richard led significant growth in the organisation during his two stints as chair, including diversification of our services and funding sources and expansion of our geographic footprint in ACT and NSW.  He has strongly advocated for improved policy and service responses for individuals and families impacted by alcohol and other drug use, including decriminalisation of illicit drug use in the ACT, and establishment of innovative services such as CanTEST, Australia’s first fixed-site health and drug checking service.

“On a more personal note, Richard has had a profound impact on the countless individuals who have come before him during his illustrious career, including his most recent appointment as Acting Justice for the Drug and Alcohol Sentencing List.  Richard’s encouragement, support, and propensity to make people feel valued has endeared him to colleagues, staff and clients alike.  Many credit him with the opportunity to change their trajectory and make a significant contribution to our community.”

His love of his community and of the law has been noted by two former chief justices, Helen Murrell and Terry Higgins.

Murrell was seen by colleagues as a hard task-master, who whipped the profession into line shortly after her appointment as Chief Justice, but at the ceremonial sitting to mark Refshauge’s retirement as a full-time Judge, she showed her great respect for him.

She began the ceremony by simply saying, “Today, we farewell the ACT’s most-loved Judge”.

Higgins, Judge from 1990 and Chief Justice 2003-2013, recalled a long association with Refshauge from the “very thorough” student “who tried to do every subject twice” to the “perfectionist” beside him on the Bench.

Higgins noted wryly what became something of a Refshauge hallmark, the longer judgment, sometimes after considerable delay: “He could make a reserved judgment out of any application.”

But his qualities were demonstrable: “He was very good at legal knowledge and research … he was very conscientious … he was very well-meaning.

“His attitude to decision making was certainly, very much modern.”

The last word goes to one who has seen Refshauge from a perspective many might not have fully grasped.

The Anglican Bishop of Canberra and Goulburn, Mark Short, believed that Refshauge’s first formal position in the diocese was as a Sunday School teacher at St John’s, Reid, the Parish he joined more than 60 years ago.

“It says a great deal about him,” the Bishop continued, “that for all the subsequent roles he has fulfilled it is this early sphere of service that I have heard him mention most frequently.”

His roles since included being a member of Bishop in Council, the Anglican Church Property Trust and the Board of Anglicare. For more than 20 years he was Diocesan Chancellor, “providing wise and measured advice and counsel to a succession of Diocesan Bishops”.

He is a member of the General Synod of the Anglican Church of Australia and, since 2010, has sat on its Appellate Tribunal, the body responsible for adjudicating contested aspects of canon law. He has been involved with the Anglican Board of Mission, including as its Australian chair from 2011-2014.

But he is also just another in the flock with his “regular and punctual presence” at the 7am Book of Common Prayer Eucharist on the second and fourth Sundays of each month.

The Bishop sums up: “Richard’s faith is generous, thoughtful and thoroughly Christ-centred. It animates his commitment to social justice and his concern for the vulnerable and marginalised.

“He exemplifies the pattern laid out by the prophet Micah:

He has told you, O mortal, what is good,
and what does the Lord require of you
but to do justice and to love kindness
and to walk humbly with your God?

“Richard is respected across the theological and ecclesial diversity of the Anglican Church of Australia. He has a great capacity for engaging those who may see matters differently and a willingness to work alongside them to achieve common goals. The Anglican Diocese of Canberra and Goulburn thanks God for him.”