THE SUPREME COURT OF WESTERN AUSTRALIA FAREWELL TO THE HONOURABLE JUSTICE GEOFFREY MILLER TRANSCRIPT OF PROCEEDINGS AT PERTH ON FRIDAY, 11 DECEMBER 2009, AT 9.30 AM 1 Farewell to the Hon Justice Miller MARTIN CJ: The Court sits this morning to mark the retirement of Justice Geoffrey Miller from the Bench of this Court. We are very pleased to be joined this morning by his Honour's wife, Rhonda; his son, Julian; daughter-in-law, Ingrid; grand-daughter, Ellen; step-daughter, Marisa, as well as other family and friends. I would also like to welcome Justices Tony Siopis, John Gilmour, Neil McKerracher and Michael Barker of the Federal Court of Australia; the Hon Stephen Thackray, Chief Judge of the Family Court of Western Australia; her Honour Judge Antoinette Kennedy, Chief Judge of the District Court of Western Australia; Mr Robert Meadows QC, Solicitor-General; Ms Cheryl Gwilliam, Director-General of the Department of the Attorney-General; Professor the Honourable David Malcolm, former Chief Justice; and many other distinguished guests too numerous to name, including former members of this and other Courts. I would also like to welcome those who will address the Court this morning, being the Honourable Michael Mischin MLC, representing the Honourable Christian Porter MLA, Attorney-General of Western Australia on behalf of the Government, and unfortunately the Attorney cannot join us this morning; Mr John Prior, representing Mr Dudley Stow, President of the Law Society; and Mr Grant Donaldson SC, President of the WA Bar Association. Justice Miller joined this Court on 3 August 1998. That is, of course, almost 11 and a half years ago. 11 and a half years does not seem like a particularly long time, although it probably would if you were standing in the prisoner's dock at the time that term was pronounced. Some measure of the change that has occurred within the legal profession and the judiciary of this State over the period of his Honour's service on the Court is provided by a roll call of those who attended his Honour's welcome ceremony in August 1998. Professor the Honourable David Malcolm presided as Chief Justice. Present in Court were the Honourable Michael Holden, then Chief Judge of the Family Court; the Honourable Kevin Hammond, then Chief Judge of the District Court; his Honour Judge Fenbury, then President of the Children's Court; Mr Con Zempilas, then Chief Stipendiary Magistrate; the Honourable Peter Sharkey, then President of the West Australian Industrial Relations Commission; Mr Alan Piper, then Director-General of the Ministry of Justice; Mr Richard Foster, then Executive-Director of Court Services; Mr Peter Panegyres, then Crown Solicitor; her Honour Judge Kate O'Brien in her capacity as then President of the Law Society; and Justice McKechnie in his then capacity as Director of Public Prosecutions. I was also present and spoke in my capacity as President of the WA Bar Association. 1 Farewell to the Hon Justice Miller Absent were the State Attorney-General, the Honourable Peter Foss QC, and the Commonwealth Attorney, the Honourable Daryl Williams QC, although I am pleased to see that he has been able to join us this morning. In fact the only person present on that occasion and who continues to occupy the office which he then held, aside from Justices Murray, Owen and Wheeler, was Mr Robert Meadows QC, Solicitor-General, and who was in your Honour's year at Law School. We are all very pleased to see Mr Meadows here again today and I hasten to assure him that I am not trying to make any point by this observation. Rather, my point is that during your Honour's term in office there has been an almost complete turnover in the various offices held within the legal profession and the heads of Courts in this State. Your Honour joined the Bench after a stellar career as a solicitor advocate and then as a barrister. Your Honour was one of the many graduates of Perth Modern School who have gone on to distinguished careers in the law. Your Honour's academic success as a schoolboy was followed by similar success as a law student and you graduated with first-class honours in law from the University of Western Australia in 1963. During your university career you achieved a Full Blue in athletics, which is of course no mean feat, if you will pardon the pun. After graduation, your Honour practised in a variety of capacities before joining the Bar in 1980. You were appointed Queen's Counsel in July 1980 and practised in that capacity for 18 years prior to your appointment to this Bench. At the time of your appointment as Silk you were President of the Law Society and later served as Vice-President of the WA Bar Association. During your time at the Bar your Honour practised in a variety of professional areas, including especially personal injury litigation and increasingly the criminal area. You gained renown as an outstanding advocate and your Honour's services were in strong demand, particularly from those who had a difficult criminal defence to present. I was fortunate to have the privilege of acting as Junior Counsel to your Honour on a number of occasions, and later as opposing Counsel. I learnt a lot from your Honour in both capacities. Your Honour was well known as a very worthy opponent both inside and outside the Court. One of our areas of ideological difference at the Bar was in respect of the head gear and robes appropriately worn by Counsel in Court. My various attempts to persuade a majority of a general meeting of the Bar to support change in that regard failed ignominiously in the face of your Honour's strident opposition. I will say nothing of 2 Farewell to the Hon Justice Miller the renewal of that ideological difference when I joined the Bench as I would not want to spoil this occasion for your Honour. As a consequence of your Honour's appointment to the Bench, you felt obliged to give up a number of non-professional activities for which you were well known. Your Honour's fleetness of foot had been followed by an enthusiasm for fast cars and horses and you were prominent in the fields of motor racing and horseracing. The detective skills of Sherlock Holmes were not required to identify your Honour's car in the basement at Bar Chambers. It was usually bright red and a hotted-up, high-powered Falcon or Holden. At the time of your welcome to the Court, your Honour's aptitude for completing work in about half the time taken by others was the subject of much comment. That has also been a characteristic of your Honour's work on the Bench. One of the challenges of sitting with your Honour on the Court of Appeal has been to try to arrive back at Chambers after the completion of the hearing before the arrival of your Honour's first draft of the judgment. Your Honour's vigour has not been constrained to judgment writing. Following my arrival at the Court, I received the inestimable benefit of your views on a wide variety of subjects by memos delivered on average three or four times a day. This gained you the honorary title of Judge in Charge of Ideas. Some of them were very good ideas. In your capacity as Judge in Charge of the Criminal List you suggested a form of mediation of criminal cases. This was a novel idea. Until your Honour's proposal there was a widely held view that mediation, which had become such a central feature of the civil work of the Court, was inappropriate to the criminal work of the Court because of such principles as the presumption of innocence, the burden of proof resting at all times on the State, and the right to silence. But more detailed analysis revealed that notwithstanding those principles, which are of course very important principles that must be respected, there was still significant scope for a modified form of mediation process to facilitate the narrowing of issues to be tried and the possible resolution of a case by way of a plea of guilty, perhaps to a modified charge. The process commenced under the name of Voluntary Criminal Case Conferencing, and your Honour successfully recruited Mr Ron Cannon, a very senior and experienced criminal practitioner to conduct the programme in the first instance, and you drafted the protocol governing the 3 Farewell to the Hon Justice Miller operation of the programme. The programme has proven to be a great success and Mr Cannon's services have been augmented and in due course replaced by retired Chief Judge Hammond and retired Judge Jackson. If I were to take on the invidious challenge of attempting to identify a single characteristic of your Honour's judicial career, I would nominate your Honour's prodigious capacity for completing large volumes of work in a fraction of the time taken by ordinary mortals. The success of this programme has attracted interest from other jurisdictions, and a number of States are looking carefully at the programme with a view to emulating it in their own jurisdictions. This was evident during your Honour's time in the General Division, particularly when serving as Judge in Charge of the Criminal List, when a busy list of status conferences or pleas would be dealt with by your Honour with a degree of military precision, made possible by your Honour's capacity to assimilate the facts and legal issues in all the cases in that list in a very short period of time.