The Age tapes and the investigation of Justice Lionel Murphy

In February 1984 The Age newspaper published material from tape recordings of telephone calls allegedly made without authority by the NSW police. The tapes related to a range of possible criminal activities, most of which fell into the NSW rather than the Commonwealth jurisdiction. However they also indicated that a Commonwealth judge, later identified publicly as Justice Lionel Murphy of the High Court, might have acted improperly in attempting to influence court proceedings relating to his friend, Sydney solicitor Morgan Ryan. This precipitated more than two years of inquiries, legal opinions and proceedings that occupied a considerable amount of the time of both Cabinet and Attorneys-General Senator Gareth Evans (until December 1984) and Lionel Bowen. Evans asked Ian Temby QC, Director of Public Prosecutions (DPP), to investigate the material to identify any possible federal offences. Temby reported on 20 July 1984 that the material had no present probative value, that the voices on the tapes could not be authenticated, that it could not be proved that the tapes recorded actual phone conversations and that there was no evidence of offences under federal law (apart from the issue of telephone interception itself) to warrant charges or further investigations. Temby and Evans recommended that in the public interest the report should be released in its entirety, since it would be unlikely to prejudice any present or future investigations. However the Australian Federal Police (AFP) opposed the release of an AFP report attached to the main report, arguing that police operational documents of that kind had never been released before and to do so would be unfair to innocent people involved in the police inquiry. Cabinet decided that the main report should be 'appropriately edited to protect the national and legitimate personal interests' and that the AFP report should not be released at all.

Meanwhile the Senate, in which the government did not command a majority, had set up its own inquiry. Evidence presented to the inquiry in camera included allegations from NSW Chief Magistrate Clarence Briese about Murphy's involvement in the Morgan Ryan case. This inquiry reported in August 1984, but was divided on party lines. On the casting vote of the chairman the committee decided that no conduct of Murphy had been proved that would constitute misbehaviour under section 72 of the Constitution and thus open the way for action to remove Murphy from the High Court. On 3 September 1984 Cabinet considered a submission lodged by Evans on 31 August setting out options for dealing with the Briese allegations. Cabinet decided to ask the Senate committee to refer the Briese evidence to the DPP for consideration as to whether criminal proceedings should be undertaken against Murphy. If the DPP decided that criminal proceedings were not justified, consideration should be given to reconstituting the Senate committee to hear all evidence against Murphy in public. However the Senate decided to resume committee hearings on 6 September, this time in public. Briese gave evidence again and two other NSW judges also gave evidence about apparent attempts to influence proceedings in favour of Morgan Ryan. Murphy chose not to give evidence. A majority of the committee found that, on the balance of probability, Murphy had attempted to influence the course of justice over the Ryan committal. This could amount to misbehaviour under section 72 of the Constitution.

On 14 December 1984 Cabinet noted that the DPP had decided to charge Murphy with attempting to pervert the course of justice; this was a matter for the DPP and ministers would make no comment about it (see A13979, 4558). In April 1985 a magistrate found that Murphy had a case to answer on two counts of attempting to pervert the course of justice in relation to the Morgan Ryan proceedings. In July 1985 he was convicted on one of two counts and sentenced to 18 months imprisonment, but his conviction was overturned on appeal. He was retried and finally acquitted in April 1986. In May 1986 legislation was enacted to establish a Parliamentary Commission of Inquiry to assess Murphy's fitness to return to the High Court. However Murphy was by then suffering from inoperable cancer and he died in October 1986.

Selected documents

Copyright National Archives of Australia 2014