A Stolen Life

by Antonio Buti

  Two ‘respectful submissions’ in succession is not going to spare Walsh from a firm reminder from His Honour that he needs to walk that talk about respect. ‘I didn’t get the impression from the evidence of the children that they thought they had been abandoned by their mother. I don’t know quite what you mean by abandoned; it is rather an emotive word.’

  ‘They were left with Joe Trevorrow. We know that.’

  ‘That doesn’t mean that she has abandoned them, does it?’

  ‘It might have been perceived to be so by those who were observing at the time.’

  ‘“Abandon” sounds like someone has walked away and wants nothing more to do with the child.’

  ‘She did precisely that with Bruce Trevorrow. She left a young child in the hands of someone else. It might have been Steve Lampard. If so, there is some evidence to suggest that he had alcohol problems and insofar as the father, Joseph Trevorrow, we have other contemporaneous documents suggesting that he had a problem with alcohol. That’s going to have to be dealt with, that’s as much as any other contemporaneous document, and then the child goes to hospital. No one visited the child, it would seem. There are no records of anybody visiting the child. This is a thirteen-month-old child——’

  His Honour leaps to Joe’s defence. ‘What would you expect Joe Trevorrow to do in 1957 at Meningie to visit a child in hospital? What would you expect him to do?’ The repeat is not a request for clarification; it is a peremptory challenge to counsel to be reasonable.

  ‘No difficulty going to the police officer and making demands.’

  His Honour doesn’t think that counts as being reasonable. ‘That’s a matter of walking three miles to the local police officer. What do you say he should have done about visiting Bruce in hospital?’

  Judge and advocate both dig their heels in. ‘One would have thought that he would make some attempt to visit the child.’

  ‘How? What do you say he could have done?’

  ‘Go to Mrs Evans, for example. Why not?’

  Burnside thinks this is turning into one of those ‘coulda, woulda, shoulda’ exchanges to which discussion can descend when empirical evidence of what actually happened is lacking.

  In that vein, Walsh answers his own question. ‘We don’t know what was available. What we do know is that, for example, insofar as it is asserted that Mrs Trevorrow would have had difficulty making contact, she was making contact with the Department all the time, if she chose to. There is no difficulty in Mr Trevorrow writing——’

  Justice Gray snaps an interjection. ‘He was illiterate. I think it would be very difficult for Mr Trevorrow to get a letter organised.’

  Now Walsh offers détente. ‘What we are doing, of course, is we are trying to build up a factual conclusion from a lack of evidence.’

  His Honour accepts the offer but with qualification. ‘Yes, one can draw inferences but I might say my tentative view is that an illiterate camp dweller out at Meningie would not find travelling to Adelaide to visit a child particularly easy at all.’

  Burnside, sitting outside the fray, expects Walsh to accept His Honour’s concession and move on. He doesn’t. Instead, he ponders—aloud and directly to the bench. ‘I suppose Mr and Mrs Evans would have been able to provide some of the answers. They are not here of course. Mrs Angas might have been able to provide some of the answers to those questions. She is not here to help either.’

  Not only is that answer unhelpful, it is also counterproductive. It gives the judge another opportunity to strengthen his tentative position. One has to appraise the actions of the Indigenous protagonists in terms of the social and cultural inequalities of that time. ‘We are dealing with Indigenous people who, at that time, have a great deal of difficulty dealing with European authority.’

  As a fellow courtroom advocate, Burnside feels a momentary empathy for Walsh and understands his dilemma. If it were merely a scholarly conversation, upon which nothing significant hung, prudence would suggest changing topics. However, his client’s whole case is at stake. Walsh has to get all his narrative of that case into the record, judge’s tentative viewpoint notwithstanding. He will spend a whole working week and half of the following Monday on his feet, traversing the evidence of all his witnesses to convince Justice Gray that he should change any tentative negative views against the State’s defence.

  Burnside has been seated for over five days, making his own notes of Walsh’s closing address and observing His Honour’s interjections. He has learned much about what Justice Gray wants from counsels’ closings and, perhaps equally importantly, what he does not want. He does not want empty rhetoric, which merely seeks to persuade by its eloquence. Nor does he want rhetoric that simply fills in the gaps of the orator’s knowledge. He wants facts, incontrovertible facts, which need no argumentation. His Honour knows that is an impossible ideal but the closing is an opportunity to at least aim for it in collaborative dialogue with counsel. As Burnside has seen throughout this trial, and particularly in the five and a half days of Walsh’s closing, Gray will often appear brusquely challenging of counsel as he reaches for this ideal, with everything extraneous eliminated.

  ‘Your Honour,’ Burnside begins, ‘can I start with what may be a self-evident account of what we say are really incontrovertible facts, because a great deal follows from the way you understand the facts in the case?’

  Justice Gray has the plaintiff’s written submission and is relieved that it seems Burnside is not going to cover that submission chapter and verse. Burnside notes, with a tinge of guilt—well, with guilty pleasure actually—that he has the advantage of following Walsh in delivering his closing. As he watched His Honour’s sometimes hard-hitting interrogation of Walsh’s closing arguments, he could discern those aspects of testimony that still trouble the judge.

  ‘The first is that self-evidently whatever happened to Bruce Trevorrow at the age of thirteen months was not his fault. At the age of thirteen months, he was obviously taken to the hospital in Adelaide. Two weeks later, he was given away to a foster family. It is clear enough that the Aborigines Protection Board either itself or acting through the Department officers, or possibly just the Department itself, was responsible for giving him away.’

  This point immediately flags an area of testimony that is worrying Justice Gray. Overall, it is the matter of causation, and causation raises questions of duty of care. The essential element of duty of care is to what extent harm is foreseeable. Gray homes in on a report by Mrs Angas, and two paragraphs that Burnside challenges. They relate to her recalling inaccurately two incidents in Bruce’s life—one when he was in hospital and the second the time of his return to his biological mother, Thora Karpany. Burnside attributes the inaccuracies to her recalling the events at a court hearing several years after they had happened. As for the balance of her report, Burnside says, ‘the rest of it is accurate and surprisingly consistent with the views of Dr Jureidini and Dr Le Page’.

  It is Burnside’s chance to emphasise the trauma and consequences of family separation. ‘She says that the “traumatic emotional experiences that he has been exposed to may have limited his ability to cope with the ordinary pressures in our society”, a contemporaneous snapshot of exactly the things Dr Le Page says so many years later: “like many young people who have been segregated … with any particular group”. Mrs Angas, with her fairly detailed day-to-day experience of Aboriginal people over the years, says not only does he have this problem, but he shares that problem with many people who have been segregated from normal family relationships.’

  He is pleased when His Honour notes that a document dated 23 July 1979 picks up ‘the second and third paragraphs of Mrs Angas’s report word for word, which would indicate Mrs Angas’s document was current in the late seventies’. Burnside builds on this observation. ‘That document is also interesting in another way because it has annexed to it what’s already a formidable list being housed with the criminal justice system and, even then, the authorities who are
in the best position to know are attributing his conduct to the separations from his family as an infant. You’ve probably picked this up but that last document is also mentioned in our annexure ten.’

  His Honour has not picked it up. ‘I might say, Mr Burnside, I haven’t found it possible to hold this information comprehensively in my head and obviously I’ve got a lot of reading of all the exhibits, both yours and the defendant’s, in preparing a judgment in the matter.’ Burnside senses that Justice Gray is going to be grateful for any conversation with counsel that might make his task of processing the mountain of documents easier. So Burnside, too, is grateful that his team has identified the significant areas in which the judge might welcome such conversation as he proceeds to guide him through the plaintiff’s exhibits.

  ‘The recurring themes are depression, aggressive conduct, a sense of despair, wants to throw himself under a truck, hurting himself and so on, and careful reading, in our submission, shows that it’s simply a continuation of what you already see in earlier records. So the question then is, what’s the cause of all of this? Your Honour raised the interesting challenge last night of understanding the cases about causation. We have brought copies of perhaps four cases that are of importance: Betts v Whittingsloe obviously is the starting point; Bennett v The Minister of Community Welfare that you mentioned yesterday; Chappel v Hart; and, more recently, the New South Wales Court of Appeal in TC v New South Wales, which discussed each of those authorities.’

  From this point on, a significant proportion of Burnside’s closing is a conversation on the nature of duty of care, fiduciary duty, foreseeability, and the law in relation to these matters. For that reason, Burnside is spared the more combative discussion that was Walsh’s lot as the judge and he debated competing interpretations of testimony variously submitted as fact. Nevertheless, Justice Gray makes no bones about not wanting to be troubled by extraneous matters, as Burnside soon discovers when he is talking about foreseeability and the work of Bowlby.

  ‘What we have done in annexure five is we have extracted key portions of his 1951 WHO report. And it is important to bear in mind that that report was very widely distributed. It was reprinted by Pelican Books and sold four hundred thousand copies, so it was not just a report for a dusty drawer. And I am not sure if you want me to take you through these.’

  ‘No, I don’t.’ Unequivocal, and an endorsement of His Honour’s preference for case law.

  But Burnside wants something for the court record. ‘But in our submission, Bowlby’s report sounded the clearest possible warning for people if they didn’t already realise it, but removing children from their parents carried grave risks. And that, if I may say, supports the initial sense that everyone would have, uninstructed by science, that you only take children away from their parents if they are exposed to such harm that it is worth the risk.’

  His Honour does not comment directly on Bowlby’s view. He respects his specialist knowledge but goes straight to case law to make the same point that Bowlby made. In adopting this approach, His Honour signals his attitude to witness testimony. He values it for its capacity to communicate knowledge that he does not have, nor should he be expected to have. Yet he will not apply it slavishly. He is experienced and knowledgeable in his own specialist field. He has the judicial command to assert that he is better able to identify the facts and their relevance than are experts in unrelated fields. Then, as he does with law in which he also refers to relevant case law authorities, he will apply the science to the facts that he finds. That is as it should be.

  He will have something more to say about expert witness testimony later. Now, however, he does not want to be distracted from continuing his exploration with Burnside of the fundamental question in this matter of whether the Board properly appreciated and fulfilled its duty of care to Bruce.

  ‘Do you deal somewhere with comments by the court of a general nature at that time? I was looking at a decision in Mace v Murray from the mid-1950s in the High Court, 92 CLR 370. At 380, Chief Justice Dixon and Justices Webb, Kitto and Taylor say this—it is in the context of an adoption case: “It was plainly right thus to emphasise at the outset a necessity arising from sections of the Act [Child Welfare Act 1939–1952 (NSW)].” It rather seems to recognise that the general approach of the time was to recognise the important relationship at least between mother and child.’

  ‘Yes.’ What more would a thankful counsel want to say? What follows is a collaborative conversation—unlike the usual combative conversations that are the essence of an adversarial court—as judge and counsel try to reach an understanding of duty of care as it applies in this case.

  Burnside draws the judge’s attention to the Children’s Protection Act, which gives the person with the warrant to act the discretion to detain a child until they can be brought before a court where there is reasonable cause for suspecting that a child is being ill-treated. The important point which is relevant to Bruce’s circumstance, Burnside says, is that the Act ‘seems to give power by invoking the help of a court to hold a child not found to have been neglected et cetera, but suspected of being neglected’.

  His Honour immediately grasps the significance but seeks confirmation of what counsel is submitting. ‘So this would allow the welfare board to move in a case of reasonable suspicion?’

  Burnside confirms that it gives the chairman of the Children’s Welfare and Public Relief Board power to act in a real emergency, subject to the constraints of the Act.

  ‘So,’ Justice Gray says, ‘this Act would suggest that in the case of reasonable grounds to suspect neglect, this is a procedure that should be followed. Why would one infer that the Protection Board could act of its own volition to deal with the child in those circumstances without order of the court?’ He adds, ‘Here I am seeing a statutory regime which gives the court jurisdiction in a case like this. Why would the Protection Board and an officer of the Aborigines Department have wider powers?’

  ‘Indeed,’ Burnside agrees.

  Justice Gray offers an alternative viewpoint. ‘Mr Walsh will say the answer was that it’s the legal guardian and it’s got the power to act in regard to the welfare of the child. It doesn’t need a court order.’

  Burnside demurs. ‘In our submission, the powers of the Aborigines Protection Board as guardian can only be determined by looking at what the Act empowers them to do, and if it confers some powers coupled with constraints, then their power can’t be assumed or inferred without the constraints.’

  His Honour sums up the point. ‘Well then, there is really the approach that you need an express power to act physically to remove a child from the care of the parent.’

  ‘Yes.’

  Justice Gray asks a pertinent question about the legislative scheme. ‘But these Acts appear to be enacted and consolidated all about the same time, don’t they? This is 1936.’ His implication is that they were meant to work together.

  ‘Yes,’ Burnside affirms. ‘It is easy to see where the gaps in one are supplemented by provisions in the others. It makes sense that parliament meant them to be understood together, in particular, may I say, because both the Children’s Protection Act and the Maintenance Act apply to children generally. They do not exempt Aboriginal children.’

  ‘It is really in this context that the opinions of Hannan40 and Chamberlain41 come forward, isn’t it? At the time they were well aware of all these different Acts and had been no doubt working with them.’

  ‘Yes. It is our submission in relation to their opinions that these opinions were right for the reasons they articulated economically and we advance the same arguments because what matters in this court primarily is the question of interpretation, not the Crown Solicitor’s answer to that question.’

  ‘Yes,’ His Honour affirms.

  ‘The Crown Solicitor’s answer matters very much when it comes to seeing what the Board understood of its own powers.’

  ‘I understand that,’ His Honour says. ‘They were not more than opi
nions of a solicitor of the day.’

  Burnside is comfortable with these answers from the judge, who, he believes, has now firmed his tentative position on whether the Board acted within its powers. He now redirects his focus to causation and the duty of care.

  ‘I think I covered what we say about the nature of the duty and the sources from which that duty can be derived, and they are really common sense and the ordinary sentiments of mankind, as reflected in common experience about human relationships.’

  ‘What are the salient features in this case that give rise to the duty of care? I know you say they might be self-evident.’ Justice Gray is looking for something more than just common sense.

  ‘The salient features are the vulnerability of the infant when an agency of the state is interfering with that infant’s life. It’s difficult to imagine a more vulnerable person than an Aboriginal infant in the 1950s where an agency of the state wishes to interfere with its day-to-day existence. He has absolutely no power to protect himself and his parents have got extremely limited ability to protect him because they can only do it through the agency itself.’

  His Honour still needs him to be more specific. ‘At what point did the duty arise in this case? Was it always there as a duty of care or did it arise when the Board or Department had dealings with Bruce after Christmas Day 1957?’

  ‘It had duties and powers that section seven sets out and it always had those duties and powers. The way those duties operated in its conduct before it directly interfered in Bruce’s life is more difficult, but we don’t rely on that. Once it begins to take positive measures in relation to his circumstances, then you can identify specific duties.’

  Justice Gray pushes further. He needs to get to the essence of his concern, which is the nature and extent of common law duty of care. ‘Because one starts with the statutory duties but it doesn’t necessarily give rise to any common law duties of care in a general way.’