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Evan Whitton
27 August, 2008  
Stewart, Barwick & Ors

Law & Society. Evan Whitton ploughs through the Hon Don Stewart’s memoir and has some nice things to say about the former plod, barrister, judge and royal commissioner


imageGerman jurist Georg Jellinek (1851 – 1911) was not afraid to state the obvious: law should have an intrinsic relationship with society.

Obvious, that is, to everyone except common lawyers like the Rt Hon Sir Garfield Edward John Barwick, 1903-97, BA LLB (Syd), KC 1941, Kt 1953 (possibly for services to Abraham Gilbert Saffron), PC and GCMG 1964, CJ 1964-81.

Barwick seems to have been mostly engaged in a vendetta against society.

By contrast, the Hon Donald Gerard Stewart, b. 1928, LLB 1960, LLM 1967 (Syd), at times managed to do society a bit of good.

The pic on the dust jacket of Stewart’s memoir, Recollections of an Unreasonable Man (ABC Books, 2007), indicates that he must have been a handsome little fellow, and that he kept his looks.

He began as a travelling salesman, cadet reptile at two quid a week on Frank Packer’s Daily Telegraph, pick-and-shovel man, bar useful, and beat cop.

Chief of staff at the Smello was the “god-like” Dave McNicoll. He knew pretty much all there is to know about his trade except the first law: tell the customers what is really going on.

imageDave occasionally gave young Donald a curt nod. Years later, Justice Stewart ran into Dave in the street, manfully resisted the reflex to tug the forelock, and gave him a curt nod.

In 1949, after six weeks of learning nothing at the Penrith police academy, Stewart entered a world in which there was no discernible difference between certain cops and organised criminals, e.g. the depraved whore-master Abe Saffron (seen here) and sly-grogger Doug Barwick, brother of Gar.

It goes without saying that Abe and Doug paid off the cops.

When a judge declared that Abe’s Roosevelt nightclub was a brothel, his mouthpiece, Barwick, had no argument on the facts and so mounted a typically fraudulent attack on the propriety of the judge’s appointment.

It was another 35 years before Saffron went to prison, and it was Stewart who put him there. Meanwhile, he started tramping a beat from Phillip Street to Circular Quay.

Among people he encountered were a cop called “the vacuum cleaner”, for the ability to suck the money from drunks’ pockets, a lady known as Kanimbla Mavis, for her kindness to lonely sailors, and Timothy Bristow, an apprentice cop who graduated to standover merchant (extortionist), drug-runner and briber of wallopers.

Stewart frustrated Bristow’s aim to pursue a life of crime inside the force.

Bristow vowed to fix him in a trial Rugby match in which Stewart was the Manly hooker and Bristow was second row for Gordon.

imageThe threat amused Stewart’s props, Tony (Slaggy) Miller and Keith (Bluey) Ellis, both of whom later played for the dear old Bandies.

Bristow (pic) lasted two scrums. He missed Stewart with a roundhouse swing in the first, and was carried off after the second.

Bent cops and bent lawyers

From 1954 Stewart was at once trying, as a police prosecutor, to put crims in prison, and learning at law school how to keep them out. He writes:

“A recurring theme of my studies was the dichotomy between the appearance and the reality of the law.”

Part of the reality was that crooked lawyers brazenly “duked” crooked cops and cops “verballed” guilty and innocent alike. Of the duking, Stewart says he saw:

  • Solicitors hand banknotes to police prosecutors in the vestibule of Central Court in Liverpool Street, and even in the court itself.
  • Detectives sitting on steps below the bench counting money from either the lawyer or his client directly, and handing some of it to the prosecuting sergeant.

    Of the verbal, Stewart says:

    “Conviction after conviction was obtained on falsified confessional evidence … the general belief [among beaks] was that police did not lie: why would they?”

    One reason, not mentioned by Stewart, was to cancel out the lies of shysters like Barwick.

    Through the looking glass

    Stewart left the force in 1959 and stepped through the looking glass into the Wonderland world of a barrister in the anti-truth adversary system.

    He says the “police brief” was “nothing less than a criminal conspiracy” to pervert the course of justice. That is:

    “The police would refer someone they had arrested for an offence or offences they had or had not committed (as he case may be) to a ‘tame’ solicitor or barrister in return for payment.”

    The proposed bribe (or extortion) was a third of the fee.

    Two detectives making the rounds of barristers’ chambers offered Stewart the deal.

    In their presence, he told his clerk of the offer; threw them out, and reported them to the ethics committee of the Bar Association. Nothing happened.

    In 1976 he got a job in the real world: junior counsel assisting one of the great Royal Commissioners, Justice John Nagle, in his inquiry into the truth of the NSW prison system.

    Nagle found that the system was viciously medieval.

    Back to Wonderland

    imageIn 1977, the Hon N.K. Wran QC b. Oct 11, 1926 (pic), asked Stewart if he’d like to go on the Dizzo.

    Stewart asked if he should apply for silk. Wran told him not to bother:

    “You’re the same man whether you take silk or whether you don’t.”

    That is deeply distressing to me and all senior counsel: in 1983, Mr Wran made me an honorary QC for services to the Wran Royal Commission.

    Stewart had done well enough at the bar to buy an S3 Bentley. On his first day at the Dizzo he drove it proudly into the judges’ car park at Hospital Road.

    Eyeing the tank, Chief Judge Jim Staunton said:

    “Stewart, you will find that the longer you sit as a judge, the smaller your car will become.”

    Mr Big Enoughs

    A whole new drug trade was the legacy of Seppoes on leave from the Vietnam morass, and for a price cops conferred virtual immunity on the Mr Big Enoughs: Bob Trimbole and the Griffith cell of the ‘Ndrangheta from 1971, the CIA’s Nugan Hand Bank from 1973, and Terry Clarke’s Mr Asia heroin syndicate from 1976.

    Barwick meanwhile was running what can be seen as his fraud-on-the-revenue caper out of the High Court.

    The drug bizzo was incestuous. Stewart says “the Nugan Hand group … were involved with the Mr Asia group”, and Trimbole bought into Mr Asia in 1979.

    Trimbole had no reason to fear NSW police, but he fled the country in May 1981 when a cop tipped him off that Stewart was to run a Mr Asia Royal Commission.

    The “mad eyes” of a CIA director

    imageBill Colby (1920-96, pic), lawyer and passionate believer in Opus Dei (the work of God), ran the CIA’s torture/murder Operation Phoenix in Vietnam from 1968 to 1971.

    President Richard Nixon appointed him CIA director in 1973 at a time when the CIA needed another bank to help fund the CIA’s “off the books” operations.

    In Prelude to Terror: The Rogue CIA (Carroll & Graf, 2005), Joe Trento says Colby and Theodore Shackley (who advised ASIO to get rid of the Whitlam Government in 1975) “turned to two of their Laos colleagues: [Bernie] Houghton and [Michael] Hand”.

    The result was the Nugan Hand Bank stuffed with former military and intelligence officers.

    When President Gerald Ford dismissed Colby in 1975 and replaced him with George H.W. Bush, Colby joined a Washington law firm, Reid and Priest, and took on Nugan Hand as a client.

    In 1982, Stewart’s Mr Asia terms of reference were enlarged to deal with Nugan Hand.

    He took evidence from Colby in Washington and was struck by his “mad eyes”.

    Colby apparently was downed in 1996 by a person or persons unknown.

    In his book, Stewart says it “was probably not the case” that Nugan Hand had connections with the CIA. I think he’s wrong about that, but you can’t win them all.

    Bjelke out, Saffron in

    In 1984, Stewart became the first chairman of a body, the National Crime Authority, which was obliged to investigate organised criminals.

    Queensland’s “Sir” J. Bjelke-Petersen’s connection with organised criminals can be gauged from the fact that, as Stewart records, his government “repeatedly refused to grant a particular reference knowing that an investigation would reveal wholesale corruption in its own ranks”.

    On the other hand, in 1985 Stewart was at last able to put the wood on Abe Saffron. His criminal record then absurdly consisted of two ancient fines of £20 and £5. Stewart says:

    “Clearly he was being protected by NSW police at all levels”

    imageStewart’s solution was to have two Melbourne detectives, Chief Superintendent Carl Mengler and Detective Sergeant Bernie Hansell, roust Saffron at his Vaucluse mansion at 7.15 am on Thursday, November 14, 1985.

    Sydney’s collective jaw dropped.

    A bail hearing on tax evasion charges was held later that day. Where Saffron’s earlier mouthpiece, Barwick, had gone for obfuscation, Laurie Gruzman QC (pic) opted for droll.

    In a rollicking performance, he said it was unclear whether the Crown was suggesting that “money paid to police in the ordinary course of business should be tax deductible”.

    Bail was set at $500,000. Saffron got the then max, three years, in 1987.

    Service to society is not without risk. Stewart was told that in prison Saffron was bugged instructing another prisoner to kill him when he got out.

    He didn’t manage to kill Stewart, but he did kill a working girl in a Saffron brothel in Kings Cross.

    Along with his NCA work, Stewart was loaded with another Royal Commission in 1985, to inquire into The Age Tapes, which brought Barwick’s enemy on the High Court, Justice Lionel Murphy, undone.

    imageJustice Murphy was undoubtedly guilty of criminal acts, but in my view his crimes were minuscule compared to Chief Justice Barwick’s (pic).

    Larry and Geoff and Don

    Stewart’s term at the NCA ended in 1989.

    The inquiry specialist ran several more, including one into the highly dubious administration of “the world game”, Association football.

    He went back to the Dizzo in 1999 to help clear the backlog, and retired in 2004.

    In his long and ultimately distinguished career, Stewart spent almost as much time in the pro-truth world as in the anti-truth world.

    The title of his memoir comes from George Bernard Shaw:

    “The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.”

    In that sense, former NSW CJ Sir Larry Street and former Queensland appellate judge Geoff Davies may be termed unreasonable men: they are prepared to say the adversary system is inimical to justice.

    The paradox is that Stewart, who had more experience than either at investigating the truth, does not say that judges doing that work would be more use to society than lawyers in the looking glass world.