Last week, the federal Parliament released a large set of documents from 1986’s ‘Parliamentary Commission of Inquiry’ into the conduct of High Court justice Lionel Murphy, which ended without resolution after the sad news broke of the judge’s imminent death. Justice Murphy’s family have strongly objected to the release, noting that the papers include many wholly unsubstantiated allegations and that there is now no possibility of them being formally investigated; instead, the papers can only contribute to the much more ambiguous judgement of history. None of the allegations relate to Murphy J’s actual work as a High Court judge, but instead are concerned with his alleged activities off the bench (albeit ones that may have led to his resignation or removal from the Court.)

An arguable exception is what is known as ‘Allegation 39‘, which states:

The Honourable Lionel Keith Murphy, on or about the sixth day of January 1982, at Sydney, and whilst a Justice of the High Court of Australia, engaged in a conversation with Clarence Briese, the Chief Stipendiary Magistrate for New South Wales, during the course of which the Judge spoke about a case that was then being heard before Bruce Brown, a Stipendiary Magistrate in New South Wales. That case was known colloquially as the “Greek Conspiracy” case. During the course of the conversation, the Judge described it as having been me of the greatest scandals in legal history. Further, the Judge said that it was “oppressive that 180 people could be charged with a single conspiracy”. The Judge went on to say that the Magistrate would be a hero in the community if he dismissed the case, and, for emphasis, in one paragraph.

If Murphy J did indeed say these words, history would largely agree with him: the prosecutions relating to the supposed ‘Greek Conspiracy’,  where doctors, brokers and members of the Greek community allegedly concocted claims of psychiatric illness to obtain social security benefits, were an astonishing debacle in every respect. It is not just the label ‘Greek’ that sits poorly today; the case yielded an important legal ruling from the NSW Court of Criminal Appeal that barred treating what were allegedly hundreds of separate criminal agreements as a single ‘Conspiracy’, precisely as Murphy J allegedly told Briese nine months earlier.

But, of course, the complaint against Murphy J wasn’t that he got the law wrong, but that he shouldn’t have been talking about the case at all, and certainly not to Briese (the same man whom Murphy supposedly asked, a few weeks later, ‘what about my little mate?’, an alleged inquiry about a different conspiracy charge involving solicitor Morgan Ryan that was the basis for Murphy’s 1985 trial and acquittal for attempted perversion of the course of justice.) Allegation 39 suggested that Murphy J’s alleged conversation with Briese about the Greek Conspiracy could be a sackable offence in two ways:

expressing to a judicial officer of an inferior court a strong and concluded view as to the merits of the case which might come before the Judge in his judicial capacity; further and in the alternative expressing such a view to a judicial officer of an inferior court in circumstances where it might be communicated to another judicial officer within the same court, who was then hearing the matter, and where this view, being known to be held by a Justice of the High Court of Australia, would or might influence, in the performance of his duties, the judicial officer then hearing the matter.

The second of these claims would ordinarily be the most serious, because a High Court judge who stated a view about any case could avoid any conflict by stepping aside from any subsequent High Court appeal. However, when the Greek Conspiracy finally did reach the High Court two years later, Murphy J did not step aside. The matter reached the apex Court on a procedurally important but legally minor question: after it quashed the defendant’s convictions for an untenably large conspiracy, should the Court of Criminal Appeal have ordered a retrial? In 1984’s Gerakiteys v R, four of the five judges (with only Brennan J dissenting) held that it shouldn’t. However, that ruling was only legally consequential because a bare majority (Murphy, Brennan & Deane JJ) thought the issue warranted a grant of special leave. Accordingly, Murphy J’s judgment granting special leave and allowing the appeal – six paragraphs, rather than just one – was decisive in formally ending the Greek Conspiracy prosecutions.