Peter Lyons remembers Peter Underwood ... Governor of Taswegia, former chief justice, former judge ... Social justice and legal education were his calling cards ... Obituary
Underwood: keen on technology
PETER Underwood, who passed away last Monday night (July 7), was Governor of Tasmania for six years; Chief Justice for four; and a judge of the Supreme Court for 20 years before that. But these are the bare biographical milestones of a bountiful life.
Since his death, many people have mentioned his kindness and affability; his erudition and good judgement and his impeccable manners. They spoke of these qualities when he was alive.
His wife, Frances shared his duties as Governor and they worked very hard. He was enormously proud of her.
They threw open the doors of Government House to a vast number of people. Ambassadors and artisans were welcome and the noise of happy schoolchildren often flooded the stately rooms.
He loved theatre and opera and for many years was the Chairman of the Board of the Tasmanian Symphony Orchestra.
He would have been successful wherever he practised. But he stayed in Tasmania and shone. By the time of his unexpected death, the honours were thick upon him.
In his heyday as a lawyer, Peter Underwood was the leader of the bar and a sight to behold. They called him "Hollywood".
He was vain and stylish and dominated a courtroom. Even a slightly whiny Birmingham-Aussie accent, which was easy to mimic, did not diminish the effect.
He would walk to court in an expensive double-breasted suit and sometimes a fur coat. An entourage of adoring apprentices followed close behind.
He was appointed to the bench in August 1984 and soon made his mark. He was a great proponent of early case management and using technology in court. He worked quickly and did not like to leave things lying about.
He was passionate about judicial training and in 2007 was nominated by the Chief Justices of the land to head the National Judicial College.
He was a great advocate for women and equality of opportunity. When he retired as Chief Justice, he spoke approvingly of the significant changes that had taken place in society. It bothered him that when he began as a judge, the evidence of women and children was so suspect that a jury needed corroboration to convict.
As a judge, he was skilful and clear and never patronising with juries. To advocates he was fair but a little scary, although he was kind if you were on top of your case. Counsel who had not done their homework were not so fortunate. The good manners acquired a jagged edge.
I swear you could hear the faint strains of the theme from Jaws when he walked into court.
The former Solicitor General Leigh Sealy remarked that when his Honour said, "Now let me make a note of that," you were heading for a dissection.
"The terror" said Sealy, "lay not in any fear that [the judge] might unjustly rebuke counsel, for it is, I think, universally accepted that [he was] unfailingly patient with counsel if they came to Court properly prepared and were doing their best.
"No; the terror lay in the fact that one knew that one's submission was about to be de-constructed, element by element, analysed and, as likely as not, shown to be found wanting."
It was that step-by-step reasoning – always beginning with first principles – which was the hallmark of Peter Underwood's judicial technique.
On one occasion, someone I had gone to university with was representing a man charged with assaulting a taxi driver. After hearing the facts and the plea in mitigation, the judge was not satisfied about what the accused had intended to do. Was it an intentional assault? "What was your client's intention?" he asked.
"I'll take instructions", said the lawyer and spoke to the client in the dock.
"He did not intend to assault the taxi driver."
"I see" said His Honour.
"No, in fact his intention was to rob him".
Underwood's comments on passing sentence were brutal:
"And despite your counsel's best efforts to have you convicted of a far more serious crime ..."
He was very interested in sentencing. Professor Kate Warner, who wrote a brilliant paper on asking jurors to gauge public opinion about sentences said Underwood's support was pivotal.
Kate Warner: remembers Underwood's "call from the Queen"
Peter Underwood was evangelical about legal education. In 2002, he was appointed an Officer of the Order of Australia for services to legal education and law reform. He later became a Companion of the Order, something he irreverently called an "upgrade".
As a judge and as Governor he never turned down an opportunity to teach. Over the years, he gave hours of his time both in and out of the classroom to students who sought his advice.
Hugh Murray, the Director of the Legal Practice Course said:
"He was a great friend and supporter of this course. Few men in his position would have taken the time, as he did, to give advocacy training to our students. He often 'sat' as a judge in their Supreme Court exercises, and his method of instruction was very effective, and very much appreciated by the students."
Kate Warner remembers the Governor's phone going off while they were selecting a witness examination team. Much to the delight of his students, he pretended it was the Queen calling and said he would get back to her.
He gave many seminars to the profession. I remember one in 1993 when the judge talked about the importance of openness at the interlocutory stages of a civil matter. He said that it was in the interests of justice that the parties and their counsel be frank with each other.
Two able but belligerent local practitioners disagreed with him. They weren't going to give their opponents a free kick, especially if they were defending someone. They must use the law to their client's advantage. That was not justice, countered Underwood.
I wanted to lighten the atmosphere and had the temerity (or maybe it was a beer in the lunch hour) to put up my hand.
"Yes Peter", said the judge.
"When did Your Honour" I asked cheekily, "first form the view that the law had anything to do with justice?"
There was a gasp from the younger members of the audience.
"20th August 1984," came the reply.
Peter Underwood had an ability, not often found in ambitious people, to laugh at himself.
Members of the profession performed a sacrilegious skit called Under Peterwood at the Bar Convention at Cradle Mountain in the presence of Underwood J and quite a few distinguished judges.
Hit at Cradle Mountain
The tuneless musical was based on a plot that Tassie's judges had been asked to vote in conclave for the job of successor to Sir Guy Green, their Chief Justice who had been made Governor.
The only one who wanted the job was the thrusting Underwood. The "actor" playing him sang an altered song from My Fair Lady which began:
"I have often thought of that seat before. But when Guy would move upstairs, I haven't been so sure ..."
The nub was that although no-one wanted the job, no-one wanted Underwood J to be the Chief.
As soon as the production finished, a beaming Peter Underwood went straight over to the cast to congratulate them.
The irony is that when he did become Chief Justice, he was the most congenial of leaders.
Although he loved the pomp of our institutions and the shiny trimmings, Underwood believed strongly in social justice. He was fearless in saying what he thought was right.
His speech at the Cenotaph on Anzac Day this year which called on us to stop glorifying the myths of war caused the rabid Andrew Bolt to scream for his resignation.
It seems that in these hysterical times we can no longer have what the Archbishop of Canterbury, Justin Welby, calls a good disagreement.
As Chief Justice, Underwood made a speech to newly-admitted practitioners in 2003 which was not reported. He spoke of the importance of the day. He said:
"The obligation to contribute to the public good, being one that all lawyers assume upon admission to practice, cannot be over-emphasised. All too often important principle is set to one side in the name of political expediency and economic rationalism. The media that is always hungry for sensationalism and trivia all too often ignores important principle."
He spoke of the fact that Australians had been locked up in Guantanamo Bay without trial and said:
"It appears that if they are ever charged with a crime and tried ... it will be by a tribunal that owes its first allegiance, not to principle, but to the prosecutor, the President of the USA.
It seems that the majority of our legislators condone this state of affairs. If that is right, what is there to stop the same procedures – imprisonment without charge and denial of access to an independent judiciary – becoming law in this country?
[It may be] under a claim that this is necessary to combat terror. The answer is only the legal profession"
Then he looked at the young people in the courtroom. "You have become a member of a privileged profession. But public duty is attached to that privilege."
On the day before he entered hospital for an operation to remove a diseased kidney, I had lunch with Peter at Government House; as one of my friends put it, "in the conservatory with the lead piping".
Underwood was 76; looked 56 and thought 36. He was a great conversationalist because he was genuinely interested in what people had to say.
Unlike many judges and senior practitioners in social situations, he did not pontificate or seize the last word.
After 90 minutes of unbridled chat and laughter, it was announced that the taxi I had ordered had arrived. The Governor of Tasmania walked me to the cab and opened the door. He stood alone in the driveway and waved goodbye.
Clive James said recently that "to die in your own time having lived a full and rewarding life is a great privilege. It is bad manners to complain".
Peter Underwood did not die in his own time. But he would not have complained, least of all because of his excellent manners.