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Criminal Bar Association Farewells Judge Kelly, Former Judge of

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Criminal Bar
Association
Farewells Judge
Kelly, Former
Judge of the
County Court
Speech by Sir Daryl Dawson


W
        ILLIAM Michael Raymond Kelly.         But some of us have known him for a
        Most of us have only three names,     very much longer time than that. And he’s
        but Kelly, appropriately, has four.   always been a man with considerable flair
Appropriately, because His Honour has         and panache.
never been an inconspicuous person.              If nothing else, his dress has always    or Bowler hat doesn’t invite attention, then
Many of you here tonight have only known      marked him out in a profession not noted    a monocle and a watch-chain with a large
Kelly as a judge — a very distinguished       for its reticence. If a black jacket and    Hunter at its end certainly does. It can be
judge of the County Court of Victoria.        waistcoat, striped trousers and a Homburg   an experience to walk down a city street
                                                                                          with Kelly and realize that all eyes are
                                                                                          turning in your direction. And the waiter
                                                                                          and the other diners in a restaurant are
                                                                                          invariably galvanized when he flourishes
                                                                                          his monocle before proceeding to read
                                                                                          the menu.
                                                                                              Kelly has always maintained that he
                                                                                          dresses in this way because it’s economical
                                                                                          and saves him from thinking about what
                                                                                          he has to wear each day. He can buy two
                                                                                          or more pairs of trousers for every jacket.
                                                                                          But the real reason, as he confessed one
                                                                                          day, is that in this world, which is grey and
                                                                                          dreary to many, he feels a duty to add a
                                                                                          little colour to brighten their day.
                                                                                              Of course, Michael can even manage
                                                                                          to create an effect unconsciously, as he
                                                                                          did on the day on which he caught fire.
                                                                                          He was appearing in General Sessions
                                                                                          before the late Judge Cussen and a jury.
                                                                                          In those days the County Court sat in
                                                                                          the Supreme Court building. During the
                                                                                          luncheon adjournment Kelly was smoking
                                                                                          his pipe. Before going back into court, he
Sir Daryl Dawson.                                                                         shoved it into his pocket. Some way into

22
                                                                                              I don’t know how many nights Kelly
                                                                                              never actually made it home to Kew.
                                                                                              This became easier when he acquired a
                                                                                              motor car. Not, of course, any old motor
                                                                                              car, but a very large, pre-war Citroën. It
                                                                                              was powerful and known in France as the
                                                                                              Bandit’s Delight and in England as the Big
                                                                                              Six. It was the car that Maigret drove and
                                                                                              all Citroëns of that model in Europe were
                                                                                              acquired for use by the Gestapo during
                                                                                              the second world war. It was a car that
                                                                                              suited Kelly.
                                                                                                  At about this time Kelly was about
                                                                                              to enter a wonderful marriage and
                                                                                              regularise his social life. Its beginnings
                                                                                              were, however, not altogether auspicious.
                                                                                              The happy couple set out in the Citroën
                                                                                              for their honeymoon. On their way back
                                                                                              from the Hawkesbury River they got as
                                                                                              far as Seymour when the Citroën started
                                                                                              to throw a con-rod. Kelly managed to find
                                                                                              a service station and there contemplated
                                                                                              the heap of white metal which he scooped
                                                                                              out of the sump. Now it was not easy to
                                                                                              have major repairs done to a veteran
                                                                                              Citroën Big Six in a place like Seymour.
                                                                                              The couple found an indifferent motel
                                                                                              opposite the service station, but Seymour
                                                                                              in winter was not exactly a vibrant place
                                                                                              to end your honeymoon in a befitting
                                                                                              manner. It was winter, raining and the
                                                                                              summer dust had turned to mud.
                                                                                                  After four days, in need of comfort,
                                                                                              Kelly repaired with his bride, Michelle,
a no doubt very skilful cross examination        Kelly began his practice at the Bar in       to the nearest pub. That turned out to
of a witness, he noticed that the jury        1958 by appearing in Petty Sessions. Most       be fortunate because members of the
were giggling and nudging one another.        of us did then. They were happy days.           Homicide Squad were in Seymour for
The reason was revealed when the old          Work was relatively plentiful and the sum       a committal and were at the pub. On
reservist policeman, who manned the           total of those practising at the Bar was less   learning of Kelly’s plight, they offered
door, tapped him on the shoulder and          than 200. About half a dozen came to the        him a lift home in the back of the squad
whispered in his ear, “Mr Kelly, you’re on    Bar each year. We all knew one another          car. Kelly hesitated to accept such an
fire”. Kelly stopped his cross examination    very well. The work in Petty Sessions           ignominious return to Melbourne. Michelle
and said to the Judge, “Your Honour, I        was not onerous, but it kept you in touch       didn’t hesitate for one minute — she
appear to have set myself on fire”. “Well”,   with the realities of life. You developed       accepted for both of them with alacrity
replied His Honour calmly, “You’d better      your skills in advocacy at a basic level        — and the couple ended their honeymoon
go and put yourself out, Mr Kelly”. That’s    and your mistakes had no very serious           in the back of a police car driven by the
what Kelly did, or thought he did. He         consequences. And you had plenty of time        homicide squad.
came back into court and resumed his          hanging around the courts or afterwards             Kelly has always enjoyed the criminal
cross-examination. Within minutes there       in Gibby’s Coffee Lounge to relish your         law, both in its practical and theoretical
was more merriment in the jury box. Kelly     successes or lament your failures.              aspects. In practice, he was fascinated
was on fire again. This time he adjourned        Kelly’s practice developed and he            by the challenges which it presents to an
to the corridor and put himself out with      moved out of Petty Sessions. Crime              advocate and by the insight it provides
the water jug from the bar table.             began to overtake civil work. He began by       into the human condition, often starkly
    Of course, Kelly carried the incident     prosecuting for the Crown and briefs from       revealed in the criminal courts.
off with great urbanity. He was a born        that source were supplemented by others             In the early 1970s, shortly after I took
barrister. Perhaps he inherited some of       from the Public Solicitor. In the end,          silk, Kelly reminded me of the duty of silks
his aptitude from his father, Sir Raymond     Kelly was doing mainly, although never          to accept briefs from the Public Solicitor.
Kelly, who was the Chief Judge of the         exclusively, criminal work.                     He prevailed on the Public Solicitor to
Commonwealth Court of Conciliation and           Of course, Kelly had a life apart            brief me with himself as junior to appear
Arbitration. But the main thing that he       from the Bar. He has always been an             for a man, aptly named Lawless, who
seems to have inherited from that lineage     instinctive bon viveur. Life at the Bar in      was charged with murder. “It’ll be very
was a determination not to practise in the    the sixties provided plenty of scope for        easy”, said Kelly, “There are only two
industrial jurisdiction.                      good food, good wine and good company.          bits of evidence against him: his girlfriend

                                                                                                                                       23
who says that she saws him shoot the
deceased and a cigarette packet with
Lawless’s fingerprint on it, said to have
been found at the scene of the crime.”
“You get rid of the girl”, said Kelly, “And
I’ll get rid of the fingerprint”.
     Now it may seem strange in these
days of sophisticated techniques such as
DNA testing, but at that time it was not
known, although it was suspected, that
a fingerprint could be transferred from
one object to another. One day, as we
were preparing for the trial, I wandered
into Kelly’s chambers to find him leaping
about in delight saying, “I’ve done it! I’ve
done it!”. He had indeed done it. He’d
transferred his fingerprint from one glass
to another with cellotape and was doing it
again and again.
     In the end, our efforts were to no
avail because Lawless dispensed with
our services at the close of the Crown
case and proceeded to convict himself by
calling a string of unsuitable witnesses,
including one on a charge of murder
himself. We were briefed on the appeal,
but were again sacked, only to return in
response to entreaties from the cells by
Lawless “on his bended knees”. This time
we returned by arrangement with the
Chief Justice on condition that Lawless
remained in the cells for the remainder
of the hearing. Thus Kelly and I have the
dubious distinction of having appeared
for the last man in Victoria to have been
sentenced to death. The sentence was, of
course, commuted. After his release from
prison, Lawless suffered a stroke which
acted as a sort of frontal lobotomy. He is
now a gentle character occupied in doing
good works in the community.
     In 1977 Kelly himself took silk. This
was seen then as a brave move for one           Judge Michael Kelly.
who practiced in the criminal law. But it
wasn’t really so for Kelly. By this time he’d       Another case was O’Connor’s Case           when Kelly came back I said to him, “He
developed a healthy appellate practice          which, as you all know, concerned the          tried to nobble you, didn’t he?” Barwick
and there wasn’t much competition at            defense of intoxication at common law.         had done just that. He tried to dissuade
that level. His appellate work flourished       Again I appeared for the Crown. Kelly          Kelly from wasting his outstanding talents
and led to a number of memorable                won that appeal too, but before the case       as an advocate by going on to the Bench.
appearances in the High Court.                  began Kelly had accepted an offer of           Fortunately, Kelly was unpersuaded and
     One of them was in Ward v The Queen        appointment to the County Court. That          so began a long and distinguished career
in which I appeared for the Crown as the        was not generally known. The case was          as a County Court Judge.
Solicitor-General. Kelly appeared for the       heard in Sydney and Kelly and I had a              Kelly has asserted that it was difficulty
Appellant who had been convicted of             standing arrangement that when a case          with provisional tax, that dictated his
murder. The murder had taken place on           finished in Sydney, we’d go out and have a     decision to join the Court, but in fact life
the Murray River down below the bank            really good dinner. After O’Connor’s case      on the County Court greatly appealed to
in the Victorian side. Kelly successfully       was over, I was making final arrangements      him. He had always enjoyed good company
argued that the whole of the River Murray       with Kelly outside the court in Darlinghurst   and was the best of company himself.
between the banks was in New South              when someone came and summoned him             There was a good deal more fellowship in
Wales and that the Victorian court had          to the Chief Justice’s chambers. I guessed     the County Court than in other courts. He
not had jurisdiction, thus rendering me         that Sir Garfield Barwick had heard            could indulge his interest in the criminal
the first Solicitor-General in history to       from somewhere about Kelly’s pending           law without having to justify his existence
have lost territory to New South Wales.         appointment to the County Court and            by writing interminable judgments. And

24
                                                                                              took very seriously indeed. He hated what
                                                                                              he thought to be the new managerialism.
                                                                                              Computerism as an end in itself,
                                                                                              particularly the internal website, was an
                                                                                              anathema to him. But he was forced to
                                                                                              succumb and was even forced, in the end,
                                                                                              to give up smoking cigars in chambers,
                                                                                              but only after threatening to join, fully
                                                                                              robed, the gaggle of smokers outside the
                                                                                              building. Notwithstanding the strains
                                                                                              which Kelly must have placed on the ever-
                                                                                              patient Chief Judge, he was inevitably
                                                                                              forgiven because of the enormous
                                                                                              contribution which he made to the work
                                                                                              of the Court.
                                                                                                  Notwithstanding an undeniably strong
                                                                                              personality, Kelly was, as I’ve written
                                                                                              elsewhere, probably a lenient judge.
                                                                                              He had a toleration for the miscreants
                                                                                              appearing in his court and even a liking
                                                                                              for many of them. He believed that it
                                                                                              was his duty to keep people out of gaol
Colin Lovitt QC.                                                                              if possible. And despite the occasional
                                                                                              expostulation about the law, the
there was a security in being a judge of        particularly new judges, have over the        profession or things in general, he treated
that court which would enable him to            years, sought Kelly’s advice in sorting       counsel with tact, understanding and
enjoy his family life in a way that practice    out the problems which they inevitably        humanity. The guidance which he gave
as a criminal barrister, however successful,    encounter. Kelly has given that advice        was unobtrusive and sympathetic. I know
would never enable him to do. The result        freely — if sometimes at length — and         that counsel enjoyed appearing in his
was fortunate indeed for this State. The        by dint of learning and experience it has     court and the presence of so many here
County Court acquired a judge of the            invariably been correct. He has, however,     tonight is testament to the respect and
highest calibre with a deep knowledge           been capable on occasions of tilting at       affection with which he is regarded by the
of the criminal law, both substantive and       the Court of Criminal Appeal with a           profession.
procedural.                                     provocative ruling, but only where it             This dinner is to mark the retirement
   Kelly didn’t relinquish his individuality    would not harm an accused. It may be that     of one of the great judges of the County
as a judge. He remains a memorable              these were the only occasions on which he     Court. If that were all that it was, it would
member of the legal profession notwith-         was overturned by that court.                 be an occasion to regret the loss to that
standing a quarter of a century on the             The individuality which Kelly retained     Court of the immense strengths of His
Bench. But he was a careful and accurate        on the Bench may have tried those given       Honour Judge Kelly. But this dinner also
judge. True it is that Kelly has an intuitive   the responsibility of administering the       serves to mark the appointment as from
grasp of the law, particularly the criminal     Court. Over time, the Court has become        next year of William Michael Raymond
law, but that intuition is born of great        larger and its administration has become      Kelly as an Acting Judge of the County
scholarship. It involves a capacity to strip    more complex. It has become necessary         Court of Victoria. It’s an occasion,
a doctrine to its fundamentals before           to put new procedures in place. Kelly         therefore, to reverse the old salutation
applying it to the circumstances at hand.       regarded many of these innovations as         and to say instead of Ave atque Vale, Vale
   Inevitably,     his     fellow    judges,    a threat to his independence, which he        atque Ave.




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Description: Criminal Bar Association Farewells Judge Kelly, Former Judge of