The Life of a Former NSW Judge: An Interview with John Nicholson SC

John Nicholson SC has had a long and illustrious career within the NSW judicial system. On 23 July 2001, he was sworn in as a judge of the NSW District Court.

But prior to law, he had a number of other careers.

In the mid-70s, he was the secretary of the Independent Teachers’ Association, where he practised advocacy on behalf of members who’d been dismissed.

During that time, he attended night courses at the then Barristers Admission Board and was called to the bar in June 1977.

Mr Nicholson practised industrial, common and criminal law at Wardell Chambers until 1 August, 1984, when he was appointed to the position of public defender.

From there, he went from strength to strength, taking ‘silk’ (senior counsel) on 4 November, 1994. Two years later, Mr Nicholson became a deputy senior public defender and in 1999, he was appointed to the position of senior public defender.

The plight of Indigenous Australians under the criminal justice system has always been a special concern for Mr Nicholson.

Whilst he held the position of senior public defender, he was instrumental in establishing a scheme to assist Indigenous lawyers to be placed at the Public Defenders’ Office.

After taking the ‘bench’ (becoming a judge), Mr Nicholson was outspoken on many controversial matters.

In 2008, he wrote an article for the June edition of the Criminal Law Journal critiquing Australia’s current sentencing model, with its emphasis on punishment and retribution.

A later article in the August 2012 edition of the same journal titled Sentencing – good, bad and indifferent was a further critique of the existing system.

“We live in an age where there is a growing realisation… that the time has come to dismantle to a considerable extent the punitive paradigm of sentencing,” Mr Nicholson wrote, “reserving it for hardcore and pathological offenders.”

His Honour was also vocal about the need for a Bill of Rights in NSW, believing such a document would provide tangible legal resolutions to rights issues.

Mr Nicholson hails from Perth. He spent several years in Canada, before living in Gladesville during his teens, where he attended Drummoyne Boys High.

Since retiring from the bench on 1 July, 2012, he’s returned to his work at the bar.

Today, the 76-year-old practises as a barrister at Sydney’s Sir Owen Dixon Chambers, as well as holding the position of assistant inspector at the NSW Independent Commission Against Corruption.

Sydney Criminal Lawyers® spoke with Mr Nicholson about his career as a judge with a reformist stance.

What led you into a career in law? And what were your first days of practising like?

I joined the bar in June 1977 on the suggestion of one of the opponents that I’d had in the Industrial Commission. They said I should go to the bar.

I had a teaching career before I was secretary of the Independent Teachers’ Association. And I was going back to teaching.

They said, “No, no. You should have a go at the bar.”

I came to the bar. My first year I was on a retainer from the union. So I didn’t do too badly. I dealt with a number of industrial matters.

In the second year, that retainer was stopped because forces – contrary to the forces I had led in the association – had taken over and they didn’t continue my retainer.

So the second year was my hardest year. I moved into crime, supported by a number of other barristers on my floor, and began to find my feet in criminal law.

In 1994, you were appointed to the position of senior counsel. What was that honour like? And how does it change your responsibilities as a barrister?

Well before I became a senior counsel, I became a public defender. I had applied for silk on three or four occasions and got it then.

The point about silk is you get the hard cases. And I had been doing a fair amount of work in the Court of Criminal Appeal and in the Supreme Court by way of cases for murder and manslaughter.

It was a leadership role at the bar. I felt honoured, but also thrilled. And I welcomed the challenge of doing more difficult cases, than I had been doing previously.

In 2001, you were sworn in as a judge of the NSW District Court. How did you come to take the bench?

I had been the deputy senior public defender for a long time, maybe four or five years. And the senior public defender for two or three years by that time.

I was invited to consider a position in an unofficial sort of way: whether I’d be interested or not. And I indicated that I was.

Bob Debus, the attorney-general, rang me up during the course of a trial and asked if I would go to the bench. That trial was Phuong Ngo, who was charged with the murder of John Newman, the parliamentarian.

It was a three month trial and I got the offer in the first month. And I couldn’t accept it until I had completed the trial. I finished the trial and took the bench.

I thought that I could, in taking the position, give back to the profession. I actually really love advocacy, probably more than judging. But I thought that I could give back to the bar by indicating to advocates strengths and weaknesses in their work.

Are there any cases that you presided over that stick out to you the most?

Yes there are, possibly for different reasons.

I was a great believer of using what’s called Section 11 – that’s the old Griffiths remand section – to see if I could keep people out of gaol. And there were some good success stories and there were some sad failures, well near misses.

In 2008, you wrote an article in the Criminal Law Journal critiquing Australia’s current sentencing model. What was your main argument against this system?

The primary argument against the system is the use of gaol is not targeted. There are too many reasons to send people to gaol, in a situation where gaol is counter-productive. Nobody comes out of gaol better than when they went it.

If you’re going to send someone to gaol, it really needs to be a sentence of last resort. The trouble with it, if you look at the act, there are too many reasons to send people to gaol.

The primary reason should be major punishment, in my view. And the least valid reason for sending people to gaol is deterrence.

And what’s the alternative to the current system?

The alternative is to spend money on programs. Intensive Correction Orders are a start. The Section 11 option is another start.

In other words, the court ought to be supervising more people for a longer time, before they’re put in gaol.

Now purists would say, “That’s nonsense because that’s an administrative function and not a judicial function.”

My view is that sentencing ought to be a little bit of both anyway.

You’ve always had a deep concern for the plight of Indigenous Australians under the criminal justice system. How would you describe the situation for them today under this system?

Absolutely appalling. Beyond belief. I speak of the incarcerated generation.

The new substitute for displacement by government now is incarceration.

One in 50 Aborigines and one in 25 Aboriginal men is currently in gaol. There’s no imprisonment rate higher in the world. And I think in Western Australia it’s one in ten.

So we are just incarcerating for the sake of getting these people off the street.

During your time as a judge you spoke out about the need for a Bill of Rights in NSW. What would that provide citizens in our state with?

Access to legal resolution of rights problems.

The right to privacy. Where is it? And where is it established?

It isn’t established in any of our laws, so if somebody reduces your reputation, you’ve got to rely on defamation.

But if the right to privacy was established as a bill right, you’d have a mechanism or an avenue to stop people intruding on your rights.

What would you say you achieved in your role as a NSW judge?

What I tried to achieve is an awareness of what constitutes crime. Why some behaviour is anti-social.

If you look at my judgments, I would try and introduce any judgment on sentencing in respect of why the conduct was worthy of criminal sanction.

So I tried to identify the social mores behind making things criminal.

That’s one of the things I tried to do. And the other is I tried desperately to make people aware that imprisonment is counter-productive to law and order.

And why’s that?

Because people come out of prison worse. Seventy percent of prisoners re-offend.

And lastly, today you’re practising as a barrister at Sir Owen Dixon Chambers. Why did you decide to retire from the bench and return to your role at the bar?

I decided to retire from the bench because I was 72. So I didn’t have a big option about retirement.

I came back to the bar because I was going crazy sitting at home doing nothing. I still felt I had a brain that could work and I thought that I could help people doing what I did prior to becoming a judge.

Thank you very much for speaking with me today John.

OK. Thank you.