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A fair hearing


Cite as: (2003) 77(7) LIJ, p.27

“Respect”, for the client and for the justice system, is the credo of magistrate Andrew Capell.

Andrew Capell joked that he was “Mr Unallocated”. His name was yet to be fixed to his office door, and he was still finding his way around the Magistrates’ Court complex in Melbourne. But Mr Capell said that his most pressing challenge, following his appointment as a magistrate in April, was coming to grips with the computer system.

“Having been an advocate, I now appreciate that not only do magistrates have to listen, think about what’s been said and then give reasons as to why they have made their decision, they then have to put all that into the computer,” he said. “I think it will be a real challenge to be able to listen while at the same time have some control over the computer and not be distracted by the need to make entries. It can appear to be impersonal.”

As a solicitor, Mr Capell specialised in criminal law, but he also has an extensive history of community service.

Principal of Ballarat law firm Capell Burke from 1992 to early this year, Mr Capell also spent 15 years as a prosecutor for the Department of Human Services, more than 10 years as a volunteer solicitor at the Central Highlands Community Legal Centre and 16 years as a duty solicitor at Ballarat Magistrates’ Court. He also worked as a volunteer solicitor at the North Melbourne Community Legal Centre earlier in his career.

Mr Capell was modest about his community involvement, insisting that he was no different from other judges or magistrates, but admitted that a family history of social justice concerns may have influenced him.

Mr Capell’s grandfather, uncle and one of his cousins on his mother’s side were all Supreme Court judges in Queensland; however, it was his father, a gynaecologist and obstetrician, whom Mr Capell credits as his most significant influence.

“He is a humble and modest man,” Mr Capell said. “As a doctor he did a lot of free work for those who were disadvantaged and also did a lot of gynaecological work for the nuns and never charged them.”

Mr Capell seems to have come full circle, as his father grew up in Ballarat but came to Melbourne as a young man and has never returned. He, on the other hand, moved to Ballarat as a young man and is still based there 21 years later.

Mr Capell’s move to Ballarat was prompted by a combination of family and work considerations.

In 1982, after working at Carlton firm Kiernan & Forrest for a few years, he travelled in Europe to “get it out of my system”. But although he worked as a labourer, taught English to Italians in Italy and worked as a journalist for Vatican radio, he always knew he would come back to Australia as a lawyer.

He began work at his uncle’s firm, RG Dobson & Co, in Ballarat. The combination of the work, the lifestyle in Ballarat and the fact that he met his wife Prue saw him put down roots there. He and Prue have twin 15-year-old boys, Campbell and Tom.

As a magistrate, Mr Capell will commute to Melbourne by train, which affords him the luxury of being able to read the newspaper, something he has not had time to do in the past few years.

“I see this period as an overall education,” Mr Capell said. “Not only re-educating myself in terms of this new role, but re-educating myself in relation to world affairs.”

While becoming a magistrate “wasn’t anything I set out to do”, Mr Capell said he was looking forward to playing a different role in the justice system. He hoped to emulate the many judges and magistrates who demonstrate that when a person leaves the Court he or she feels that they have been given a fair hearing.

“Last year there was a client who had a trial and was found guilty,” Mr Capell said, by way of example. “He felt the judge didn’t give him a fair go. He obtained a retrial and received the same outcome. But he said that he was happy with that because of the way he was treated by the judge. He felt he was treated with respect.

“At the end of the day, whatever the outcome, I’d like to think that people feel that they have been heard. That’s the general principle I’d like to follow,” he said.

“Whatever you do, the person before you should come away with an appreciation of and respect for the justice system – because it works.”


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