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The new Chief of the County

Every Issue

Cite as: (2002) 76(11) LIJ, p.18

Michael Rozenes QC began his appointment as Chief Judge of the County Court on 25 November. He spoke to the LIJ about his rise to one of the most important and influential positions in Victoria's justice system.

In May 2000, the Channel 9 current affairs program 60 Minutes organised a retrial of iconic bushranger Ned Kelly’s 1880 police murder trial. The original trial went famously against the bushranger and led to his hanging at the Old Melbourne Gaol. But doubts lingered over the fairness of the trial. The 60 Minutes retrial was in an effort to put those doubts to rest, with the Kelly defence being handled by Michael Rozenes QC, now the newly-appointed Chief Judge of the County Court.

For the retrial, Supreme Court Justice John Coldrey presided over the case, Julian Burnside QC prosecuted and a jury was gathered to decide the case.

Counsel questioned five “witnesses” to the shooting at Stringybark Creek and then gave a seven-minute closing address to the jury.

“There was a good bit of research went into preparing it because there were a lot of historical issues that told us what happened out there. And poor old Ned had been very badly advised and was very poorly defended,” Mr Rozenes recalled.

When the retrial was completed, the jury was asked to cheer if they wanted an acquittal or boo if they thought Kelly was guilty.

“The audience cheered and shrieked out not guilty,” Mr Rozenes recalled with a laugh.

Like the jury in Kelly’s retrial, the legal profession has reacted positively to the appointment of Mr Rozenes as Chief Judge, which was effective from 25 November.

Mr Rozenes became only the third Chief Judge in the Court’s history when he took over from Chief Judge Glenn Waldron, who had been in the position since 1982. (The concept of a Chief Judge of the County Court was not introduced until 1975. From 1945 to 1975 a Chairman of Judges led the Court.)

Despite Mr Rozenes’ impressive career and grateful acceptance of the appointment, a career on the Bench was not inevitable.

Speaking to the LIJ from his office in Aickin Chambers, Mr Rozenes said the opportunity to become County Court Chief Judge and make a contribution to the administration of justice was exciting.

“There are great challenges in the County Court, there’s no doubt about that. It is the principal trial court in Victoria,” Mr Rozenes said. “It’s where most of the visible and reportable criminal conduct is dealt with. It’s the sentences in the County Court that are most often seized on by commentators and subjected to criticism. It’s where some trials run longer than expected and again that’s grabbed by people who criticise it.

“I consider that if something can be done to improve the system – and I’m not sure if it can – then this is the place to build on the excellent efforts made to date to improve access to justice and maximise the delivery of efficient and just outcomes.”

The topic of lengthy trials has long been a favourite of his. In 1993, he told the 28th Australian Legal Convention that the Australian criminal justice system was “in danger of collapse under the weight of extremely lengthy trials”.

It is a statement Mr Rozenes still stands by nine years later. He said one statistic he did not mention during the 1993 speech was that Victoria had the highest proportion of lengthy trials in Australia.

“I didn’t then and I don’t now know whether that was a reflection of the barristers or a reflection on the courts that we had and the way cases were run or managed or whether it was just bad luck.

“One ought not lose too much perspective on this because it’s not as if every second case is such a long case. They come along once in a while.”

While pointing out that the situation has improved since 1993 and that the large majority of trials are completed within a reasonable time, Mr Rozenes said the prospect of “mega trials” was still an issue for government, judges and the legal profession.

It is this line of thinking that led to his now famous 1993 observation that the justice system needed more judges to act like Rottweilers by taking criminal trials in their teeth and shaking out the issues.

“By which I didn’t mean to offend any judges, but I meant that you needed judges willing to grab a long or complex case by the throat and give it a shake and make sure that the real issues in dispute between the parties are identified and litigated and not just have judges sitting back with their arms crossed saying ‘Well, I’m the referee here, I’ll just let these people battle in any way they see fit. If they can do it in a week that’s good, but if it takes them six months then so be it’.

“So I was really calling for interventionist judges, bearing in mind that we are working in an adversarial system where traditionally the judges haven’t been interventionist.”

When he spoke to the LIJ, Mr Rozenes still had three weeks to go before he took up his appointment and was stuck in the difficult position of commenting on issues relating to the County Court while still sitting in the chair of a barrister.

Most of the prodding of his thoughts on issues that he will likely have to tackle as Chief Judge is met with some reticence.

“Ask me that question again in three weeks,” he replied to one question.

Mr Rozenes was more forthcoming on the issue of specialisation in courts.

He believed there was an argument for marshalling the expertise of judges on Benches. He pointed to the Supreme Court as an example of creating divisions to deal with certain complex areas of practice.

“It doesn’t mean they stay there forever, but it certainly means that you try to have experts if you can as trial judges in complex areas. For example, building disputes are complex areas of litigation and why would you have judges sitting in that area that know absolutely nothing about such matters. If you can get judges to specialise and to have groupings of them or panels of them, then isn’t that what the community expects?

“Now, whether that is good for the individual judge in the long term is another story. Judges may say that that doesn’t suit them because they lose touch with everything else.”

Mr Rozenes is also passionate about the impact of current levels of legal aid funding.

As chair of the Criminal Bar Association, he has been one of the leading figures speaking out for increased funding of legal aid. He points out that a barrister whose practice is 80-85 per cent made up of legally aided criminal work makes on average about $60,000 a year. This figure is before tax, the cost of running a practice, superannuation and other expenses and stands in stark contrast to the money being made by barristers in other areas of practice.

“You’re better off in the Magistrates’ Court doing crash and bash motor accident cases where you get paid twice as much than if you represented someone charged with a serious criminal offence,” he said.

“So, how we attract people to do crime constantly amazes me. Maybe what is happening now is that people don’t stay in crime for long.

“There was always a clear tradition when I started at the Bar that you could make a reasonable income acting in criminal cases and develop that practice over many years. I think what’s happened in the last 10 or 15 years is that people who practise in crime have dropped out after four or five years because they recognise that they cannot make ends meet.”

Mr Rozenes’ professional history and public stance on issues such as legal aid has led leaders of the legal profession to praise his appointment as County Court Chief Judge.

Law Institute president David Faram described Mr Rozenes as an intelligent and experienced barrister who had demonstrated the organisation skills needed for the position.

“He had a very good reputation as federal Director of Public Prosecutions, he has got demonstrated organisational skills and is a hard-working fellow.”

Bar Council chairman Jack Rush QC said Mr Rozenes was a good administrator and a clear thinker.

“I believe that he’s direct yet understanding of other views and also everything else that he has approached. Whether it be the Commonwealth DPP or his own practice, he has always been able to generate a great enthusiasm for those who have worked with him and around him.”

Mr Rozenes was born in 1946 in Sosnowiec, Poland, a country freshly torn apart by World War II. His family went to Paris for a year while awaiting sponsorship to Australia, which eventually came through in 1949.

He lived with eight other family members in a small, two-bedroom flat in Toorak (“but it wasn’t the good part of Toorak,” he quickly adds). The family eventually rented a flat in St Kilda.

He went to a state school at Caulfield North until Grade 4 and then went to Brighton Grammar until he matriculated in the mid-1960s.

At Brighton Grammar, Mr Rozenes excelled at running – he equalled a 28-year-old sprint record that was promptly smashed soon after – and held dreams of studying engineering at university.

However, a lack of aptitude for maths scuppered those dreams. It was on the advice of a relative that saw him study law at Monash.

“My cousin George Hampel was a very successful young barrister in those days with all the trappings of a great life. He said, ‘You ought to come to the Bar’ and I thought that sounded good.”

While studying law, Mr Rozenes did summer work at the firm of Galbally & O’Bryan. He spent a lot of his time during those periods with Frank Galbally, who Mr Rozenes counts along with Mr Hampel as one of his mentors.

“I was just absolutely intoxicated by the excitement of criminal law and the way these two lawyers dealt with their clients was just quite dramatic,” Mr Rozenes fondly recalls.

“I thought it was important, very important work. I thought that dealing with people who were in conflict with society and where the downside was jail was a much more important exercise than shuffling money from one person’s pocket to another.”

Mr Rozenes did his articles at Galbally & O’Bryan, was admitted to practice in 1971 and then signed the Bar Roll in 1972. He took silk in 1986.

Six years later, he was appointed the Commonwealth Director of Public Prosecutions. An initial three-year term was extended by another two years.

The position called on him to administer an organisation with offices around the country, more than 300 staff, and a budget of $50 million a year.

It was a job he enjoyed greatly, including the time spent on administrative duties. It is there that he honed his style of leadership: get people to own the problem, show a willingness to join them in dealing with the problem, and then move forward to achieve the solution together.

“That’s the best form of leadership. I don’t think there’s much value in having someone come in and just wield his or her authority for the sake of doing so,” he said.

“Certainly that’s not my style.”

JASON SILVERII

FACT BOX

MICHAEL ROZENES QC

• Born in Poland in 1946. Migrated to Australia with family in 1949.
• Went to school at Brighton Grammar and then studied law at Monash University.
• Did articles at Galbally & O’Bryan.
• Joined the Bar in 1972.
• Took silk in 1986.
• Began five-year stint as Commonwealth Director of Public Prosecutions in 1992.
• Returned to the Bar in 1997.
• Chairman of the Criminal Bar Association since 1997.

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