An abiding commitment to justice: The Hon Justice Carolyn Simpson AO KC

The Honourable Justice Simpson, the second woman to sit on the NSW Supreme Court bench, was appointed at a time when it was assumed she must be a he. Among the earliest newspaper articles to refer to Justice Simpson, was an excerpt in the Canberra Times, on 11 March 1994 which read:

CORRECTION

Justice (Carolyn) Simpson, of the NSW Supreme Court is a she, not a he, as was reported yesterday.

Her Honour’s first career was as a school teacher. Of that five-year stint she has said:

I did not like it and I was not good at it. Which was cause and which effect I do not know.¹

Examination of close to 30 years on the bench and 1800 published judgments lends some assistance in determining the answer.

The first medium neutral citation attributable to her Honour is the case of Regina v Glen [1994] NSWCCA ¹. Mr Glen appealed his sentence for an offence of sexual intercourse without consent. One of the grounds of appeal was that the sentencing judge failed to give adequate weight to the attitude of the victim, who gave evidence in the sentence proceedings that she had forgiven Mr Glen.

Justice Grove, dismissed the appeal in 18 paragraphs (a simpler time). In agreeing with the reasons for dismissal, Justice Simpson added, in 10 succinct paragraphs her consideration of the relevance of the attitude of a victim in sentence proceedings:

‘…I do not suggest that forgiveness by a victim can never be a relevant factor in the sentencing decision… The converse, of course, cannot so readily be accepted.

An imbalance or one-sidedness is thereby immediately created; a merciful attitude by a victim, or victim’s family may be material, a vengeful attitude cannot or should not be. This imbalance is common to all offences in which there is an identifiable victim, and is only one of a number of reasons why caution should be exercised in the consideration of such evidence’.

Her Honour’s commitment to civil liberties continued. In 1999, her Honour sat on a full bench of the Court of Criminal Appeal in the matter of R v Henry. Counsel for the respondents submitted that drug addiction should be recognised as one of the characteristics of the ‘typical’ offender, and when causally connected, mitigate the offending conduct.

Other members of the bench discussed drug addiction in a way which could be interpreted as particularly black and white. Her Honour, in response, said;

‘Drug addicts do not come to their addiction from a social or environmental vacuum. This court should not close its eyes to the multifarious circumstances of disadvantage and deprivation that frequently precede and precipitate a descent into illegal drug use.’

Her Honour then went on to draw an analogy between the principles relating to the sentencing of Aboriginal offenders in the decision in Fernando, and the principles that ought apply when sentencing addicts, stating in conclusion:

‘Nowhere is it held that it is inappropriate, in sentencing drug offenders, to take into account either the circumstances that gave rise to the drug addiction or demonstrated rehabilitation.’

Universally regarded as someone able to strike at the heart of a legal issue without beating around the bush, practitioners find guidance in her Honour’s concise explanation of difficult concepts.

Prior to being called to the bar I appeared as Trial Advocate for the Aboriginal Legal Service. Appearing in sentence proceedings, I would make submissions regarding my clients’ varied subjective circumstances, and when appropriate, put submissions as to how those circumstances may inform an assessment of their moral culpability.

Often the bench, prompted by the colour of my client’s skin or the identity of my instructing solicitor, or to the fact that I was employed by ALS, would take my reference to moral culpability as a reference to the case of Bugmy.

Some would posit that the exact factual circumstances of the cases of Bugmy and Fernando were the yardstick upon which disadvantage should be measured and insist that a causal connection was required before there could be any reduction in moral culpability:

‘Your case isn’t really that Bugmy though is it?’

‘They didn’t see their mother stabbed 15 times.’

‘But they can read and write ok-ish.’

I was rarely faced with those same comments twice. In my back pocket, I was armed with a quote from Millwood,² the case that introduced me to her Honour’s judgments and one that has accompanied me ever since.

In Millwood, one of the grounds advanced by the Crown was that the sentencing judge gave excessive weight to the respondent’s subjective case leading to the imposition of a manifestly inadequate sentence.

The Crown submitted ‘it was evident that the sentencing judge was greatly affected by the respondent’s tragic and dysfunctional upbringing...’ however, also said, ‘there is little in the circumstances of the respondent that assist him by way of mitigation.’

In response, her Honour stated:³

‘I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing.

‘Commonsense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.’

The decision of Millwood was handed down eight months before the decision in Bugmy, where the CCA said:⁴

‘…that with the passage of time, the extent to which social deprivation in a person’s youth and background can be taken into account, must diminish.’

As we now know, the High Court disagreed with that statement of principle and held that the effects of a deprived background should be given full weight in the determination of the appropriate sentence in each and every case, just as her Honour had earlier stated in Millwood.

From 2012—2018, her Honour’s statement in Millwood was quoted in the single digits, one or two times a year, up to seven. There then came to be increasing debate as to how a disadvantaged upbringing can inform the moral culpability of an offender. In 2019 to combat that confusion, Millwood cracked the double digits. It has only increased in frequency since then. Twenty-five decisions quoted or referred to Millwood in 2021. In 2022 it was quoted or referred to 32 times, including by Justice McCallum as she then was, in Lloyd [2022] where Millwood was cited as authority that a deprived background will always be relevant to the assessment of moral responsibility, even in the absence of a ‘causal connection’ to the offending. The decision has also made its way across the ditch, quoted numerous times in New Zealand, most recently by the Supreme Court in Berkland.⁵

Her Honour’s commonsense and common humanity are not confined to the criminal jurisdiction. Although they are only two examples, both her Honour’s decisions in Cox and Voller have resulted in benefits to the mental health and safety of the masses.

History was made when Mr Cox was awarded one million dollars damages for the harm suffered by being bullied at a NSW public school.

In order to avoid future liability, this decision led to fundamental changes to the way in which schools deal with bullying and the psychological health of its students. Every child who has been through the public school system since 2007 has benefited in some way from her Honour’s decision.

More recently in Voller, the High Court upheld her Honour’s decision that media organisations were liable for the defamatory Facebook comments published under their mastheads. Media organisations now have aresponsibility to monitor their social media for defamatory remarks. This in turn protects individuals, especially those who are in a vulnerable position, from being the subject of unmitigated social media attacks.

Her Honour once told a new appointment to the Supreme Court that they should not underestimate how much good they will do in the job. I hope, in saying that, her Honour is acutely aware of just how much good she has done. Her Honour’s contribution to society cannot be understated.

While I have no tangible comparison to draw from her Honour’s teaching days, it is clear Justice Simpson is not only a good teacher, but an exceptional one.

Her Honour was appointed at a time when it was assumed she was a he.

Fast forward to today, and some are even asserting there has been a feminisation of the Australian legal profession. Both statistics and personal experience contradict such a statement. Much more needs to be done to change the structures which encourage and support sexist views. Luckily, my colleagues and I are ready to do the work.

In her Honour’s retirement speech, she encouraged women, and other outsiders by saying ‘You owe it to yourselves to give it a go and you owe it to the next generation who will, by your efforts, find it a little easier.’

On behalf of the 46% of readers from the May 2023 Bar Practice course who are women, and the female counsel here today, I thank your Honour for your extraordinary efforts, for you have made it more than a little easier for us. BN

^ENDNOTES

^{1 Retirement speech [50].}

^{2 [2012] NSWCCA 2.}

^{3 At [69].}

^{4 R v Bugmy [2012] NSWCCA 223 at [50].}

^{5 [2022] NZSC 143 (7 December 2022).}