Temby's Tales
Tuesday, November 30, 2021 The arc of life ... A memoir from the former inaugural Commonwealth DPP ... The foundation ICAC commissioner ... Momentous decisions ... Searing fallouts ... C.N. Brown reviews With Conviction
Temby: autobiographer
Ian Temby, the former Commonwealth DPP, former commissioner at NSW's ICAC, former political and judicial aspirant, has written a legal memoir, in the tradition of retirees waving goodbye to glittering careers.
With Conviction is published privately so you won't find it at the bookshops, which is a shame as it is filled with front-row insights into harrowing elements of Australia's recent political and legal history.
Temby's biggest and most contentious moments were his decision as DPP to prosecute High Court judge Lionel Murphy for attempting to pervert the course of justice and, as ICAC commissioner, to go after Nick Greiner, the premier who created the anti-corruption body.
For the former he was reviled by sections of the Labor Party and for the latter by the Liberal Party. To that extent it may be said that he was even-handed in dishing out grief.
His early days as an ambitious, smooth, handsome, blade cutting a swathe through Perth are well-traversed. He landed a job at Northmore Hale where he conducted prosecutions for the WA Egg Marketing Board, he moved onto the council of the local Law Society, ran as an ALP candidate for local government (with a moustache) and state parliament (without), then it was to the bar, silk, president of the Law Council - the whole nine yards.
With that background it wasn't surprising that he got the nod from attorney general Gareth-Gareth Evans to become the first Commonwealth DPP and go headlong into a spate of bottom-of-the-harbour tax evasion prosecutions.
There was also a mud-wrestle emerging from the Costigan royal commission and allegations that The Goanna, aka Kerry Packer, was a drug trafficker, a murderer, pornographer and tax evader. A turn of events for which there was insufficient evidence against the powerful Packer - hence no prosecution.
The alleged Goanna
Temby gives us some delightful stories about fact-finding missions as DPP to the Old Dart. In London he found that patronising attitudes to colonials still prevailed. He was told that the preferred way to treat tax cheats was to give them a "jolly good dressing down" and then they could submit an amended return.
In Australia, the DPP retorted, tax evaders were prosecuted and where possible, sent to jail. He bristled at the English idea that the DPP and the AG should have regular meetings about pending prosecutions.
However, this did happen when he was inveigled into lunch at parliament house with Gareth-Gareth who edged the conversation to what was happening with the Murphy prosecution - a matter dear to the heart of the Hawke government.
On a later trip to Blighty during the early stages of the Murphy case, Temby recollects that at a dinner at Australia House, flush with peers and potentates, guests were coming up to him, squeezing his elbow, and murmuring "Keep up the good work, son".
The former Lord Chancellor Hailsham, "a bumptious and opinionated man", announced to the table that people like Murphy should not receive high judicial appointments, as a disastrous outcome was bound to ensue.
The prosecutor found himself in the quaint position of having to defend Murphy to the Poms, saying that he had made a considerable contribution to Australian jurisprudence, but "the trouble is that he never stopped being a politician".
Hailsham: "bumptious"
Temby was partial to prosecuting for contempt. He took on Neville Wran who had told the Daily Telegraph on the day Lionel Murphy's retrial was ordered that, "I have a very deep conviction that Mr Justice Murphy is innocent of any wrongdoing".
The court imposed a fine of $25,000 on Nifty and $200,000 on the Smellograph.
It was a prosecution that further enraged Wran's devotees in the Labor Party.
The ABC also found itself on the receiving end of one of the DPP's contempt prosecutions over a dicey broadcast on the eve of Murphy's committal hearing.
Aunty was slapped with a $100,000 fine.
After the first Murphy trial at which Ian Callinan prosecuted, both the Tub and Temby sued over criticism that they had acted unprofessionally. Callinan cleaned up with a settlement, while Temby dropped the case so he could "get on with doing my job".
The second trial resulted in an acquittal, with the DPP saying that Murphy's dock statement was not shameful. "He simply exercised a legal right which was available to him."
"The decision to prosecute, and the decision to prosecute the second time, were both made by me, and I think they were right."
Further:
"Despite his grave faults, which stemmed from his active involvement in politics after he became a judge, it might be said that Lionel Murphy was a great man, who did more good than harm. But the prosecution of him was necessary. Nobody can be so great that he is beyond the reach of the law."
It's questionable that the attempted suborning of judges and the chief magistrate to protect his "little mate", solicitor Morgan Ryan, accurately fits the description of "active involvement in politics".
The author gives a vignette of his time as chief prosecutor for the Commonwealth - attending a criminal law shivoo at the intoxicating Jupiter's Casino on the Gold Coast, with all the stars of the criminal law monde in attendance.
A woman called Karen Soich sidled up to Temby for a chat and she then sat next to him at the gala dinner. "I imagined that my good looks and magnetic personality were what mattered."
Only a bit later was he told that Ms Soich was the girlfriend of major drug importer Terrance Clark, known as Mr Asia.
Advertising man John Singleton was the guest speaker and unsurprisingly performed after having had "a few drinks".
His theme was the pomposity of lawyers and how useless they were. He said he had once been represented by the god-like figure Murray Gleeson QC, but the shickered Singo thought he was "more or less hopeless".
Finally, he slurred: "You all think you're so marvellous, but let me tell you that the DPP for Australia is now seated next to Mr Asia's girlfriend."
It was another fun moment on the conference circuit.
Singleton: guest speaker
By this time his term as Commonwealth DPP was drawing to a close. The attorney general Lionel Bowen said: "The best I can offer you, Ian, is a seat on the ACT Supreme Court."
That was not Temby's speed at all. "The Supreme Court in Canberra was small and after the retirement of Chief Justice Blackburn was not seen as especially distinguished."
This was a price to be paid for the Murphy and Wran prosecutions.
Fortuitously and serendipitously, the Liberal Greiner government was establishing the new Independent Commission Against Corruption in NSW - and the call went out.
Attorney General John Dowd made a tantalising suggestion: "After you have finished at the ICAC, Ian, go to the bar for a few months and then we will put you on the supreme court."
Just the sort of "cosy and secret arrangement which the ICAC was designed to discourage".
As it turned out there was no secrecy about this and no judicial appointment.
The Metherell affair sunk that prospect. The arrangement investigated by ICAC was whereby the Greiner government gave a government job to Terry Metherell, an ex-Liberal MP who had defected to the cross-bench.
The numbers in the Legislative Assembly were tight and the government wanted the defector's safe seat back. The arrangement was stitched up by Greiner and others with a job at the Environment Protection Agency handed to Metherell without being advertised or made on a merit basis.
Amid the hue and cry about the appointment, it was Greiner who moved in parliament to refer to ICAC the MP's resignation from parliament and appointment to the EPA.
Ultimately, ICAC concluded that Greiner and another minister, Tim Moore, son of Sir John Moore president of the Conciliation and Arbitration Commission, had engaged in corrupt conduct.
In his report Temby said:
"Greiner sanctioned the appointment of a man who had become a political opponent, without interview. He did that with a view to a change in the composition of the Legislative Assembly which would favour the government, Greiner's party, and Greiner personally. It seems to me that these are serious matters, and such as would provide grounds for his dismissal."
Indeed, the Premier did resign because the independents with Labor would support a no confidence motion. Temby observes, wistfully, that Greiner "remains very bitter towards me to this day".
Greiner: corruption finding overturned
For his part Temby to this day questions the Court of Appeal decision that overruled ICAC's finding of corruption in this case. He failed to appeal the judgment because "of a lack of resilience on my part".
"The Court of Appeal decision really knocked the stuffing out of me."
Moore landed a judicial appointment on the Land and Environment Court and Temby was refused a second term on the Sydney Operate House Trust. No other trustee had ever before been denied reappointment.
The ICAC Act was amended so that a breach of the code of conduct by an MP could result in expulsion.
No Supreme Court appointment was offered, so the ex-commissioner went to the Sydney bar where cases, commissions of inquiry and investigations piled up at his door.
He did make a curious observation about Eddie Obeid - the former politician twice jailed after findings of corruption by ICAC.
He thought it was "silly" to denigrate Obeid as a "cheap crook" - because "we all have strengths and weaknesses".
"Obeid is a man of values, but the only straight course to which he holds fast is to benefit his people, and in particular his family."
Obeid: values
By contrast to noble Eddie, Bob Carr as Premier was busy stuffing the state with poker machines - "evil devices which serve the purpose of transferring money from the poor into the pockets of the rich".
It's sobering to recollect that at one stage this crook, cheap or otherwise, was a trustee of the Art Gallery of New South Wales - just one of the many appointments harvested by Obeid.
Temby also acted as counsel assisting at other ICAC inquiries conducted by retired judge Anthony Whealy - including Operation Cyrus into the grant of retail leases at Circular Quay.
That landed Obeid in jail for misconduct in public office.
"I take pride in the fact that this was the only inquiry into any aspect of Obeid's affairs which has led to charge, conviction and imprisonment."
That generous bit of self-regard was premature, because ICAC's Mount Penny coal lease inquiry subsequently saw the ex-Labor strongman doing another stint of porridge following a trial conducted by Justice Elizabeth Fullerton.
At one time during ICAC's private hearings Obeid moistened Temby's pocket, telling him: "Your conduct today has partly restored my faith in this institution."
While others may cringe, Temby thinks that "courtesy never goes astray".
He also appeared during Operation Jasper as a barrister at ICAC for one of Obeid's land acquisition surrogates, Justin Kennedy Lewis - looked upon as the "fifth Obeid son".
Lewis was subjected to withering cross-examination by Geoffrey Watson SC, counsel assisting, about whom the author couldn't resist making a bitchy aside.
Temby objected to a question from Watson about his client's yellow Lamborghini. Apparently, Watson agreed that the question had gone too far and apologised to Lewis, who by all accounts was a piece of work.
Temby asked his client whether an apology had been forthcoming and he agreed it had been.
"Do you know what I said to him, Mr Temby? I said 'You'll keep, cunt'. Was that all right, Mr Temby. Was I allowed to say that to him?"
After Temby's term as ICAC commissioner finished he judged that the commission had been "beaten down" by subsequent appointments, particularly Barry O'Keefe QC and Irene Moss. "He did little work by way of investigations and public hearings, and she did less."
There is also a nice little aside about Arthur Moses, at the time a junior barrister, who asked Temby to assist with an advice for the state Liberal Party.
The client wanted the advice signed by a silk, and the issue was whether the ALP's Paul Whelan, who held extensive interests in hotels, was conflicted as Police Minister.
Temby rewrote Moses' draft and the advice, averse to Whelan, was tabled by the Liberals in parliament.
He now thinks, "There is room for the view that Moses played me like a fish".
Moses: advice for Liberal Party
After 25 years at the Sydney bar, golf and bridge beckoned. His wife, Diana Higgins, advised him to "get off the stage while they are still clapping". Possibly, the applause was thinning in any event.
The final trigger happened at home in the kitchen. He asked Diana whether they had any of those "you know - little things like onions you slice up and fry to add taste?"
He was groping for the word "garlic". It was definitely time to pack it in at the bar.
With Conviction is not short of self-basting, as might be expected in an autobiography. Yet, it does have moments of self-deprecation.
As the author himself reveals, the Urban Dictionary says that "temby" means a rectum or arsehole, as in "shove it up your temby".
This was coined by NSW coppers and lawyers after a "lawyer who was universally despised".
With Conviction - An Australian Legal Memoir by Ian Temby - Son. Jackaroo. Father. Lawyer. First Federal DPP. First head of ICAC. XVPXO Publishing
Reader Comments (5)
..Wran, who was accompanied at the meeting by his consigliere, Gerry Gleeson....
If only there were more like the above and less half suppressed truths, for fear of defamation.