Thank you for agreeing to speak to Hearsay.
10 Minutes with…the Honourable Justice Martin Burns
Justice Burns was appointed a judge of the Trial Division of the Supreme Court of Queensland on 18 December 2014, his appointment taking effect from 27 December 2014. His Honour was called to the Bar in 1991 after a successful career as a solicitor including as a partner in a Brisbane law firm. He took silk in 2008. His Honour enjoyed a wide-ranging practice with a particular focus on criminal law, an area of the law in which he has extensive experience. He appeared in a raft of criminal and civil jurisdiction disputes as well as in many Commissions of Inquiry. From 2019 to 2021, his Honour was the judge responsible for the management of the Supreme Court Criminal List and, over that time, he modernised the administration of the List through the introduction of an Online Portal and helped the court through the worst of the COVID-19 pandemic.
Since 2022, his Honour has sat on the Council of the National Judicial College of Australia and is a regular speaker at the College’s programs, including two of which he currently chairs on the topics of jury management and forensic evidence. Prior to his appointment, his Honour was retained as counsel for the National Rugby League and was Chairman of the Australian Rugby League Judiciary for Test and State of Origin fixtures in Queensland. His Honour was also the founding editor of this journal, Hearsay, and consulting editor (criminal law) for the Queensland Reports.
His Honour spoke with the Editor:
Thank you for asking me.
You were the first editor of this journal, serving from 2005 to 2010, and oversaw the publication of the first 44 editions. How do you see its role – present or better targeted – in the life of bar and bench?
Could I start by saying how pleased I am to see Hearsay’s re-awakening. There was such a wealth of articles and professional information in the last edition, and I hope that continues. Quite apart from being the official Journal of record, the idea behind Hearsay was to create a virtual common room for the bar given the spread, even then, of several chamber groups in Brisbane as well as in the regions. In the intervening years, the bar has of course continued to expand across the State and, with that, the need to maintain the sense of connection which a publication such as this can provide has only heightened. The original conception was for Hearsay to be more interactive, with provision for the leaving of comments and a forum for debate about topics of interest, but all attempts by me to do so failed, so that might be something worth thinking about again.
Hearsay replaced Queensland Bar News, which was of course a hard copy periodical. After the first online issue was published, I received a flood of calls from associates asking me how they could print out the whole edition for their judges. I gave up trying to explain why that was not the idea, that it was an electronic journal, etc but, as amusing as that may seem, I have to say on reflection that we did lose something in the transition – a hard copy record. I would like to see the publication of a Yearbook containing a selection of the best articles, goings-on and the like. That would go some way to making good what has been lost but, then again, I am probably just revealing my boundless talent for coming up with good ideas to be implemented by others.
Your practice as a barrister was somewhat unique, in part, given you were retained by the National Rugby League from its inception until your appointment in 2014. Do you miss that aspect of legal practice?
I had a background with the Brisbane Broncos from when they started in the late 1980s and then Super League so my work for the NRL was really a continuation of that. I always enjoyed it because it was radically different to my day-to-day work and also because I got to work with especially good people. Much of it I should point out could not properly be described as “legal practice” but rugby league had an unenviable capacity to deliver up what we used to describe as “atrocities” on a regular basis. A lot of thinking outside the square was required.
I recall the Chief Executive Officer, and several others, from the NRL attended your swearing-in, no doubt that reflecting your close relationship with them. I cannot recall another instance of a barrister’s former clients attending their swearing-in.
There was a big drink in it for them so you shouldn’t assume their attendance was all about me.
You and others were at the core of fashioning the Supreme Court’s lauded response to the impact of the Covid crisis upon the conduct of litigation. What is the back story to that response?
It probably all seems entirely manageable now but, at the time, the District and Supreme courts were facing the real prospect of a shutdown. The very first briefing from government was bleak, predicting high rates of mortality in the community, particularly amongst the elderly and indigenous. Not a great deal was known about the transmissibility of Covid. We had to suspend jury trials for a time but the balance of the work of the courts had to continue. By way of but one example, there were something like 7,500 prisoners held on remand and they would not be going anywhere unless their cases came before a court. Shutting down was not an option. A WhatsApp group was formed which, for want of a better name, was called “the Tank”. Its purpose was to gather in one place the right people from various justice stakeholders who had authority to make the decisions necessary to overcome any obstacles. Well, we got the right people. When a problem arose, and that was often, it was promptly solved by one or more members of the group. Jeff Hunter KC was a key driver of the group, displaying great leadership, resourcefulness and support throughout a very challenging period. It was wonderful to see everyone working together for a common cause and many of the solutions that came out of that group have been carried through to today leading to a range of new efficiencies in the work of the courts.
The media plays a critical role in our democratic society reporting court litigation, but sometimes get it very wrong, with inimical consequences for litigants and, occasionally, barristers and judges. Is there anything the profession ought, or can, do to ameliorate this?
I don’t think we can blame the media for every wrong. Quite often they are reporting on a political agenda that drives a lot of the unwarranted and ill-informed opinions which are expressed, particularly about sentencing. Fortunately, both the Bar and the Queensland Law Society have a long tradition of speaking up when the occasion arises and it is critically important that this continues to occur.
You harboured a reputation as a skilled forensic barrister, and have carried that through to your role as a judge. What do you consider are the hallmarks of persuasive trial advocacy?
It is difficult to answer that question, particularly with that lead-in, without sounding like the type of judge who thinks that the overall standard of advocacy at the Bar plummeted the moment he or she was appointed. I will say this, though. Regardless of the nature of the case, the single most important thing is to quickly get to the real issues in the case and then do nothing to distract from them. If you can do that, you will be a long way down the path of persuasion. Far too much time and effort is sometimes wasted on pointless excursions across the evidence or essays on the law which, in the end, have no true bearing on the outcome. Cut through to what really matters, and stick with that. In everything you do in the preparation and presentation of a case, think about how that can best be achieved. An aimless reading of every scrap of paper on your brief won’t; taking time to identify the real issues will. At some point, hopefully early on, you need to put your pen down, walk away from your desk and think through the issues. The best advocacy comes from a clarity that can only be gained through that sort of process.
So, if a barrister fails to do that, would you describe what results as poor advocacy?
No, but the result will be nowhere near as effective. A proper focus on the real issues together with the right combination of what I think are the essential personal attributes of a good barrister – intellect, skill and courage – will almost always be something to behold. I think also that this is where the division of purpose between written submissions and oral advocacy lays. If you feel it is necessary to background your ultimate submissions with a wider survey of the evidence or the law, the place for that is in your written submissions. When you rise to speak, you should devote yourself to the issues that matter.
How about one aspect of advocacy that is widely considered to be a core skill for every barrister – cross-examination? If you could isolate one trait that makes a a good cross-examination, what would it be?
Listening. And by that I mean, listening to the answers given by the witness. I don’t know whether it is because the cross-examiner is following a list of prepared questions or is for some other reason distracted, but you might be surprised to learn how many times a witness under cross-examination offers up something in an answer that should be pursued but is not. Cross-examine by topic, not by lists of questions.
The Bar has changed even since you ascended the bench in 2014. What further changes do you envisage will occur over the next 10 years?
One of the most substantial changes is already upon us – artificial intelligence. Is it to be regarded as a threat or embraced as a tool? Much work needs to be done in this area, and quickly. Perhaps we might have to think about blowing the dust off the Tank.
Is the present conduct of civil litigation too complex or expensive to continue in its present form?
The point has been reached where it is difficult to find anyone who is prepared to say, as a general proposition at least, that civil litigation in its present form is an affordable dispute resolution mechanism for the average person or small business. I expect that in the future, through case management and other means, civil disputes will be streamlined to make their determination less complex and more widely affordable, and therefore available. The days of the disputants themselves marking out the issues for resolution by the court are probably numbered.
In New South Wales the judicial “pasturing” age is now age 75. Many barristers practice well into their seventies, with ease. Do you consider there is merit in the retiring age for judges being enlarged beyond age seventy years?
No. Imagine me at 75. I don’t think anyone wants that judge visited upon them.
Which teams do you think will fight out the NRL grand-final this year?
The Broncos and the eventual runners-up.
Many thanks again for speaking to Hearsay.
It has been a pleasure.