Sully's swansong
Wednesday, March 28, 2007
Justinian in Brian Sully, Deja Vu, Judicial farewells, Media and the courts

Latest in our series on famous judicial farewells ... Justice Brian Sully issued an almighty spray when he said tat-tar to the NSW Supremes ... Law reformers ("unstable obsessives"), bureaucrats ("all-pervading cynics") and the rotten media ("vicious and mendacious") ... So much pent-up anger unbottled on final day at work ... Ginger Snatch was there to catch the full froth 

Sully: opened a vein on valedictory dayAfter 18 years on the Supreme Court of NSW Brian Sully let it rip at his farewell ceremony. 

Among his main targets were general ignorance of our constitutional history; the law reform zealots who are hell bent on upsetting the fragile balance of the common law; bureaucrats who have turned the courts into profit earning cost centres; and, of course, the vile, stinky media.

There's a link to his full tirade below, which you'll find once you get past the display of pocket moistening from the president of the bar n’ grill. Here are some of my favourite bits from the Sully monologue:

On law reformers

"Proposals for law reform these days normally start from people who are single issue obsessives or people who have an unwholesome ambition for personal power and aggrandisement or people who, to speak frankly, are occasionally, not to say floridly, unstable."

Sully thinks that law reformers put forward proposals "aggressively" as though it is a matter of course that they are right, unless someone can prove them wrong.

"One looks at the efforts, to choose a neutral word, of current law reform and one wonders really whether they have not taken their motto famously attributed to Attila the Hun that the grass never grew again where the hooves of his horse had once trodden."

On bureaucratisation of the courts

Sully unbottled himself, big time:

"The creeping bureaucratisation of the courts is not something that one can describe in dramatic sweeps. The process is more subtle than that but it is a real one.

Part of it is what I would call an all-pervading cynicism, that is to say, cynicism in the sense defined famously by Oscar Wilde as the capacity to know the price of everything and the value of nothing.

Fundamental to the way in which the courts are being treated these days is that they are not constitutionally independent arms of government at all but that they are profit-earning cost centres forming part of a particular bureaucratic empire and that is the way they are to perform."

Sully was also upset at what he sees as a "steady hollowing out" of respect for the court. You can see it all around, he said, in little things such as the "failure of what I would call the ordinary decencies of civil commerce among civilised people".

Further, there's the "constant trend to hedge in judicial discretions", which undermines the application of individual justice to the particular requirements of each case.

Intrusions of the media

Sully reserved his real venom for the media. Let him tell us what he really thinks (and there will be some cheering him to the rafters):

"The media, as we all know, react with savage vindictiveness to any attempt to apply to them those standards of transparency and accountability that they are insistent on applying to other people and yet it is important that from time to time certain fundamental truths be recognised and affirmed. May I suggest some of them:

The media are not a constitutional arm of government. To suggest that the media have a constitutional standing equivalent to that of the executive of the legislature and the judiciary is not only constitutionally illiterate, it is at one and the same time a constitutional phantom, a legal fiction, a political subversion and a moral absurdity.

The media are major money-making cartels. They are not knights in shining armour. Their agenda is power. Their strategy is fear and their tactics are a combination of ridicule, sometimes of the most savage personal kind, of a confusion of fact and opinion to the point where the one is virtually indistinguishable from the other and a masterful manipulation not of the lie outright but of what is more important, because more potentially dangerous, of the finely calibrated half truth.

All of those things have been brought together in recent times in particular in a media campaign in the Sydney metropolitan media which in my time has never been surpassed for the persistent, wilful and vicious mendacity with which it has been conducted.

I speak strongly about the matter because I feel strongly about the matter. It is not some trifling incident of civil discourse or of public affairs, it is something which if it is not checked resolutely will hollow out precisely those freedoms which the courts, supported by the bar, fearlessly independent, are supposed to recognise and maintain.

It is time, Mr President, for the bar to think outside the circle. It is time to take the fight to the media by insisting not that they tell us what they are against, for that is easily done, but to tell us what they are for.

If their proposition is that we need an increase in criminal convictions that is a completely logical point of view. What are they for? Are they saying that there should be no presumption of innocence, yes or no? It is not a difficult question.

If the answer is yes, then you cannot have the principal hypothesis that there must be an increase in convictions. If the answer is no, then who is to set the criteria by which it will be judged whether the presumption of innocence runs or not and who will define the criteria and administer the criteria and so forth.

It seems to me that a response to the media that insisted, may I say again, upon their saying with precision what they are for would soon enough demonstrate that like the emperor in the fable more often than not they simply have no clothes."

Never mind the lack of specifics, it was a spray the likes of which we haven’t heard from the bench for yonks.

By the end of the week, Michael Slattery, the head of the "fearlessly independent" bar was schmoozing with the reptiles of the press at a gala bar 'n' grill knees-up.

He even handed out a cheque for $5,000 to a deserving scribbler, Marcus Priest of the AFR, as a prize for his writing.

What Sully managed to do was keep all this teeth-grinding anger corked for 18 years on the bench.

Justice Michael Adams has just learned that is the best policy. The Court of Appeal has overturned a defamation judgment of the bearded porker in a case brought by a barrister, Maurice Kriss, against The Sydney Morning Herald.

A new trial has been ordered because of Adams' apprehended bias, which arose during the trial from his heavy-handed and irrelevant rebuke of the media, and journalists in general, over newspaper coverage of the bankrupt barristers' scandal.

Bias, apprehended or otherwise, plainly lurks on the bench. The smart ones only throw off the wraps on valedictory day.

Read all the speeches at full throttle here

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (
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