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Deja Vu
28 April, 2010  

Remember NSW Supreme Court Justice David Yeldham? ... The powers-that-be knew of his activities in the railway toilets of the underground, but looked the other way … The Police Royal Commission’s final report tracked the history of inaction by ICAC and the Judicial Commission … From Justinian’s hard copy archive

From Justinian September 1997

Royal Commission Capers

Yeldham – cracks and crevices

The final report of the NSW Police Royal Commission was highly critical of the way the Yeldham affair was allowed to “fall within the cracks” – so to speak.

Justice Wood said that quite clearly there should have been a proper investigation into Yeldham’s activities.

Yeldham – as barrister, Supreme Court judge and in his retirement – has been seen in significantly compromising situations at railway stations around Sydney, or detained on suspicion of indecent behaviour in railway toilets – on a number of occasions, over many years.

Some of the details of the judge’s career as a “cottager” were know to NSW Chief Justice Gleeson, to ICAC, to railway police and to the special branch of the NSW police.

On November 15, 1989 ICAC received a complaint about an incident at Central railway station which took place on December 12, 1988.

Two transit police officers had sprung Yeldham with another man emerging from the same toilet cubicle with “dishevelled clothing”.

Yeldham’s explanation to the police was that he was vomiting in the toilet cubicle and that the other man had come in to see whether he was all right.

The other man gave police a totally different explanation. He said that Yeldham had followed him into the toilet, and “not being sure what to do … allowed him to remain”.

At the time Yeldham was a judge of the NSW Supreme Court.

On November 29, 1989 Ian Temby, then head of ICAC, went to see Gleeson about this incident.

They both agreed that an investigation should be done by ICAC, not the NSW Judicial Commission.

The royal commission report records that because Temby was not originally from the Sydney bar, Gleeson took it upon himself to provide some background information on Yeldham.

In the words of the royal commission report, Gleeson said that:

“Yeldham was a married man with a family, was reputedly a person of extremely conservative personal habits, held high office in the Presbyterian church, and was generally regarded as a person extremely unlikely to have engaged in conduct of the kind that had been the subject of the earlier rumour, which so far as he was aware had never come to anything.”

Temby must have agreed with Gleeson that Yeldham was beyond compare.

ICAC never even interviewed the judge. When asked for his reasons for this, Temby told the royal commission:

“The function of [ICAC] was to investigate corruption, not crime. Somebody from the ICAC could have gone to ask him whether the information, which the police had concerning him, had been used to sway him from the proper course of judicial duty. That would surely have been pointless. Had it been desired to find the answer to that question, a full investigation using hearings and coercive powers would have been necessary. I did not and do not believe that was warranted.”

ICAC concluded that no offence had taken place on December 12, 1988.

Its focus had been not on the conduct of the judge, but on that of the police – how their records had been maintained and whether the information could be used for improper purposes.

In September 1990 the operations review committee of ICAC decided that the matter should not be further investigated.

Just one of the “cracks” through which Yeldham was allowed to escape.

But although critical of the way the whole matter was handled, Wood was reluctant to point the finger at anyone:

“It can only be said that the various incidents, complaints and rumours circulating within legal and government circles concerning Mr Yeldham were very badly managed…

If as now appears to be the case, there was shared suspicion concerning Mr Yeldham’s activities, then it would have been highly desirable for an official inquiry either by the Police Service, the ICAC, or the Judicial Commission to have been initiated.

Had there been a more frank and explicit exchange of information and an official investigation then it is more likely that Mr Yeldham would have taken the course that he did with the royal commission, that is, to admit to the truth of the matters that had come to notice.”

The strong implication to be drawn from the report is that there was resistance to at all levels to do anything about Yeldham because it would have caused too much of a scandal.

Yeldham was simply allowed to proceed to his retirement on a full judicial pension without any fuss.

He was then eligible to be made an acting judge, as had been contemplated by the Chief Justice, or possibly even appointed to the conduct division of the Judicial Commission.

* * *

However, we were all led to believe after Temby’s evidence to the royal commission in December last year emerged, that ICAC’s investigation was to have been thorough.

Indeed, the public relations machine for Gleeson, Mrs. J. Nelson, went to considerable trouble to point out in a letter to The Australian Financial Review last December that it was false to suggest that nothing would be done by ICAC in its “investigation”.

“On the contrary,” she stormed, “the agreement was that the matter would be investigated by ICAC, a body entirely independent of the judiciary”.

The chief justice explained through Mrs Nelson that to “divert” the matter from ICAC to the Judicial Commission, of which he was president, would have caused an uproar.

So at least two of the bodies suggested by Royal Commissioner Wood to investigate Yeldham proved either unwilling or unable.

The cracks were widening.

However, we always thought the conflict of interest excuse about not sending it to the Judicial Commission was a bit fishy and now it turns out to be positively embarrassing.

* * *

The Judicial Commission did receive a complaint about Yeldham.

It came from ICAC and was originally made by Dr Leszek Rajski back in October 1989.

Rajski claimed that Justice Yeldham had shown bias in a case before him.

Specifically, Rajski submitted that Yeldham had refused to approve the prosecution under s341(1) of the NSW Crimes Act 1900, of Garry Bertram Richardson for perjury.

The charge related to evidence given on November 19, 1981 by Richardson in the long running case of Tectran Corporation Pty Ltd v Raybos Australian Pty Ltd and Rajski.

The application was made to Yeldham by the DPP on at least two occasions – in chambers and in open court. Both times he refused to approve the prosecution.

Rajski claimed that in Yeldham’s ex-tempore reasons for his refusal, he made false and defamatory statements about him, including the description of Rajski as a “vexatious litigant”.

The judge, on the same day as his refusal to allow an appeal, sent his letter of resignation to Slattery CJ at CL – June 8, 1988.

He was to go on extended leave from July 31, 1989 and depart the court on January 28, 1990.

On the morning of December 12, 1998, (the same day as the incident at Central railway station) Rajski served a summons on Yeldham charging the judge with contempt of court, on the basis that he was “acting in wilful excess of jurisdiction [and] failed to act bona fide in the exercise of his office”.

Who knows, maybe the judge was so upset by Rajski’s summons that by the afternoon he felt an urgent desire for a knee-trembler in the Central railway toilets.

On October 4, 1989, the NSW Court of Appeal found that Yeldham was protected from the contempt charge by judicial immunity. However, Kirby P in his judgment described the case for allowing the perjury prosecution as “a strong one”.

On October 6, 1989 Rajski wrote a letter of complaint about Yeldham to ICAC, and three months later, on January 18, 1990, ICAC secretary David Catt replied to Rajski, stating that the complaint had been referred to the Judicial Commission in late December 1989.

On February 19, 1990, Catt wrote again to Rajski, informing him that the Judicial Commission had dismissed the complaint on the basis that Yeldham had retired and so was no longer under the Judicial Commission’s auspices.

Yeldham had fallen through a ruddy great crevice.

* * *

ICAC’s file on the Yeldham complaint was lent to the Police Royal Commission upon request.

ICAC has successfully resisted repeated requests from the Joint Parliamentary Committee on ICAC to give it access to the file.

ICAC’s commissioner, Barry O’Keefe, says that to have agreed to the request from parliament would compromise his independence.

Perhaps ICAC was stridently guarding its file because it is embarrassingly slim.

[Readers may be unaware that nowadays there is a musician who plies his creative trade under the name “Justice Yeldham”. YouTube has the details.]