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Obituary: The Hon Philip Damien Cummins AM

Obituary: The Hon Philip Damien Cummins AM

By Law Institute Journal

Legal Biography 


9 November 1939 - 24 February 2019 Philip loved life. He embraced it with an enthusiasm and an energy that was plain to see. He loved the law, a love which I suspect was engendered to a considerable degree by the iconic professors who taught him at Melbourne Law School, Zelman Cowen, David Derham, Norval Morris and Harold Ford. He spoke of them often with affection and deep respect. He saw the law as a powerful force for good in our community, but as much as he loved the law, he was not blind to its deficiencies, and was much involved in its reform. Philip was educated at Xavier College and commenced at the University of Melbourne in 1957 where he graduated in law and arts. His arts degree included a major in psychology, in which he maintained a lifelong interest, later qualifying as a Master in Science (psychiatry) as well as a Master of Laws. He was admitted to practice on 2 March 1964, having served his articles at Cleary Ross and Doherty where he worked as a solicitor for a year before signing the Bar Roll in early 1965. He read with Abe Monester. He practised as a junior principally in the criminal law, but after taking silk in 1978 he appeared regularly in common law cases as well as criminal ones. He served on the Bar Council for 11 consecutive years, being its chair when he was appointed to the Supreme Court in 1988. He was a major contributor to the Bar, serving on 14 committees, seven of which he chaired. He loved his life as a barrister and had a deep and abiding affection for both branches of the profession, but particularly the Victorian Bar. In the course of his farewell as a judge he said “I have a great love for the Bar, and I hold it in the highest regard. The work of counsel not only is demanding, but it can be lonely too; and the ethos of the Bar – its commitment, its principles, its intelligence, and its collegiality – is a precious thing we must nurture and protect. The Bar plays an indispensable, constitutional function in the administration of justice”. He admired and cared for the collegiality of the Victorian Bar and the opportunities it provides for young lawyers to practise at the Bar. As a member of the Bar Council and as chair he supported the endeavours of the Bar to ensure that rents for junior barristers were subsidised and that they could get rooms in proximity to other more senior members of the Bar. There was a time in the mid to late 1970s when the influx of new barristers and the shortage of accommodation required the renting of a building which became known as Four Courts Chambers. It was pretty sub-standard and the intention of having a mixture of seniority was not possible. Philip made a statement by moving in to those chambers so that there was at least one senior barrister there. He must have been flooded with young barristers knocking on his door and seeking advice about problems they had. That advice was always given freely. His sound and thoughtful advice as to the management and support of juries in difficult circumstances was invaluable to me and I know to other judges. Philip was a strong supporter of the jury system. Philip served with distinction on the Supreme Court between February 1988 and November 2009, both as a trial judge and on the Full Court, before the Court of Appeal came into existence. He served from time to time as an Acting Judge of Appeal and in the several years before his retirement he was the senior judge in the Trial Division and the principal judge of the Criminal Division. As a judge of the Supreme Court he dealt with many of the most distressing cases that came before that court during his 21 odd years as a judge. However, he loved the challenge and the hard work that brought. He was a hard worker. If one sought some advice from him, one could be confident he could be approached in his chambers any time between 6.45am and 7pm. He held a great respect for the institution of a fearless and independent judiciary, but at the same time held firm views as to how the judiciary could continue to be a significant force for good in the 21st century. Over many years Philip was instrumental in passing on his knowledge and experience to others and later, in particular, to newer appointees to Australian courts. He wrote about and lectured on ethics. For over 20 years he was an independent lecturer at Melbourne University on ethics and professional conduct. He co-conducted practical seminars on ethical problems for the National Judicial College of Australia for some years. In addition, he supported the Judicial College of Victoria by presenting sessions on victims of crime and family violence issues. Recently he agreed to write the foreword of the College’s forthcoming Victim’s Guide, a publication which arises out of recommendations from the VLRC. However, his interests went far beyond the law. He loved literature and read widely. At matriculation he won the Exhibition in English Literature and the Shakespearean Society prize. Indeed, later in his judicial life he produced several papers dealing with Shakespeare and the law and Shakespeare and psychiatry. In 2011 he led a program for the Victorian Judicial College on Shakespeare and the art of judging, which explored the universal themes of law, justice and ethics in Shakespeare’s plays. In 2012, in the same vein, he led a program on justice and the judiciary through the eyes of Charles Dickens. Philip loved travel and in recent years, particularly his travels to Europe with Maree. He loved talking to people outside the law. During university vacations he had been a jackaroo, a truck driver and had been a cook in the Army during his national service. Perhaps by reason of that, he loved the outback and the people who lived there. He enjoyed outback pubs and invariably struck up a conversation with shearers, truckies or whoever was in the bar and showed real interest in what they had to say. He was genial, witty and generous. He was generous to his staff both at the court and later at the Victoria Law Foundation and the Victorian Law Reform Commission. I know from what he said to me how much he appreciated and enjoyed the people he worked with at both organisations. The VLF observed last week that although he had a sparkling legal career, the staff of the VLF knew him best “as a witty, warm hearted and generous friend”. That will have been the experience of everyone who came to know Philip as a friend. Upon ceasing his judicial life in 2009 and after recovery from a stroke, he did what he had always done and that was to get to work. He became president of Court Network. Philip identified with the Court Network service philosophy which is based firmly in the belief that anyone who comes to court is entitled to be treated with dignity and respect, and to have information about court processes explained to them. In addition, Philip chaired the VLF from 2009 until 2014. He was particularly passionate about the education function of the VLF and its aim to assist Victorians to understand the law. Even after ceasing as chair in 2014 he continued to travel Victoria, speaking to school children about the law. I regularly telephoned Philip to have him tell me that he was in Mildura or Warrnambool or Robinvale undertaking talks to schools. Philip had a long commitment to child protection. In 1993 he was the judge in the trial relating to the murder of Daniel Valerio. The circumstances which led to that case appalled Philip, and it was a catalyst for the introduction in Victoria of mandatory reporting of child abuse, which he recommended. Upon his retirement from judicial office in November 2009, he became co-patron of Child Abuse Prevention Research Australia (CAPRA), and also undertook research in the Faculty of Medicine at Monash University into child abuse, with a particular focus on children’s experiences of the court process. Consistent with his long-held concerns about the welfare of vulnerable children, a matter to which he had regrettably considerable exposure as a judge, he chaired the Protecting Victoria’s Vulnerable Children Inquiry. The inquiry was announced by the then Premier on 31 January 2010. The inquiry presented its report to the government in January 2012. It was a mammoth achievement, the report being more than 700 pages in length and containing 90 recommendations. Philip’s contribution to the welfare of vulnerable children in this state cannot be overstated. That task done, Philip was appointed chair of the Victorian Law Reform Commission in September 2012, and led the VLRC over the course of some 16 inquiries. He later also became president of the Commonwealth Association of Law Reform Agencies in London. Significant changes to Victorian law resulted from VLRC reviews of the role of victims of crime in the criminal trial process, the legalisation of medicinal cannabis, adoption by same sex couples, and jury empanelment, among others. Philip was particularly committed to the VLRC’s community law reform program, which enables it to take on reviews of the law as suggested by members of the community. He believed strongly in community consultation, and participated in numerous public consultations all over Victoria. Philip’s work was unfortunately not finished, although perhaps no matter how long he might otherwise have lived, it might never have been finished. In 2016, he commenced part-time candidature for the degree of Doctor of Philosophy on Judicial Culture and Judicial Office in Australia with one of his supervisors being his long-time colleague and friend Professor Michael Crommelin. That work was well advanced and it is a great loss that Philip could not finish it. In June 2014 Philip was included in the Queen’s Birthday Honours list as a Member of the Order of Australia, the citation reading “for significant service to the judiciary and to the law, to criminal justice and legal reform, to education, and to professional associations”. That citation could not reveal the depth and width of that significant service. Neither, in the time I have here, can my remarks do so. However, there can be no doubt, as the Attorney-General said, that the state is poorer for Philip’s passing. Philip’s legacy of public service is and will be a source of comfort for Maree, the family and Philip’s many close friends. n This is an edited version of the eulogy given by the Hon Murray Kellam.

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