This interview with our committee member Nicholas Cowdrey AO QC by Peter Fitzsimmons was published in The Sydney Morning Herald on July 3 2022.
Nicholas Richard Cowdery AO, QC, is the longest-serving director of public prosecutions in Australian history, having served in the role for NSW from 1994-2011. I talked to him on Friday morning.
Fitz: Educated at Wollongong High before doing your final two years at Sydney Grammar, what sent you down the path of law in the first place?
NC: Well, nearing the end of my time at Sydney Grammar I paid a visit to the careers master, who would do a bit of an assessment of your academic history and your interests and all that kind of thing. And since I was absolutely hopeless at maths and science, and I was interested in English, history and acting, he said, “Well, the choice is obvious. You should be a barrister.” And that was that!
Fitz: And after graduating from Sydney Uni, your steady rise to the top went from there through four years defending in PNG to becoming a criminal barrister in Sydney in 1975.
NC: Yes, I did a lot of Commonwealth prosecuting work, which ended up including being junior counsel in the prosecution of Lionel Murphy in 1985-86, and senior counsel prosecuting Joh Bjelke-Petersen in Brisbane in 1991.
Fitz: Remind us what the case against Bjelke-Petersen turned on?
NC: Perjury before the Fitzgerald Royal Commission, where he had told lies about the receipt of $100,000 in cash in a brown paper bag from a Chinese developer.
Fitz: And yet those lies were not proven?
NC: Well, we did prove it to the satisfaction of 10 members of the jury, but two members of the jury voted against it, so it was a hung jury. It was very frustrating because for various reasons we couldn’t prosecute Joh again.
Fitz: So in 1994 you take over as director of public prosecutions.
NC: Yes, and that was the most stimulating and rewarding time of my professional life.
Fitz: Looking back upon those years, what are the standout cases? What are the ones you want me to chisel on your tombstone in 30 years time?
NC: All I want on my tombstone is something like “He did his job and left things a bit better than they were when he started.” You’ve got to remember that for 16-and-a-half years, most of my days were taken up sitting at my desk and making decisions about cases; whether to prosecute; what charges to lay; how to resolve witness issues; victim issues, all that kind of thing. And so, you might do 30 or 40 cases in a day. They were very busy times and every case was important, so nothing really stands out. Some that attracted great public attention are described in my second book Frank & Fearless.
Fitz: Alright, let me throw some cases at you. How do you remember the Ivan Milat case?
NC: He was one of the most evil people we had to deal with. The police did a very good job with a small investigation team and I’m pleased that he’s no longer with us.
Fitz: Keli Lane?
NC: A very difficult case, but even though there was only circumstantial evidence, it was very strong. I thought there was sufficient evidence to justify prosecuting and was proven right.
Fitz: And yet, sometimes late at night, as the moon rises and the owl hoots in the distance, there must be times when you think, “There’s a bad bastard out there walking around who should be in prison right now if only I had done something differently”?
NC: No. No, I don’t. There are, admittedly, a few who slipped through the net. But I think by and large, we got the right decisions, in the right cases.
Fitz: You’ve always been a strong voice on the importance of probity in public institutions. What do you think of the culture of politics in recent times?
NC: The pork-barrelling seems to be absolutely naked and politicians generally – with some outstanding exceptions – seem to be more interested in themselves than in us.
Fitz: A case in point being how, in the twilight of her premiership, Gladys Berejiklian more or less said, “There’s nothing illegal about pork barrelling so get over it you ninnies!”
NC: Well, that’s no justification at all. I think pork-barrelling in the sense that we understand that is a form of public corruption, a misuse of public funds for political advantage, and it should be stopped. Back in 1988, I appeared in the Court of Disputed Returns for an unsuccessful candidate in a state election seeking to have the result overturned because the successful party, the Labor Party, promised all sorts of funding for local community groups, sporting groups and the like to the point that Justice Needham of the Supreme Court found, in fact, that this was corrupt conduct on the part of the successful candidate and overturned the election result. The case is in the NSW Law Reports – Scott v Martin.
NC: So there’s legal precedent for pork-barrelling to count as corruption, and I’m surprised that it has not come up elsewhere. It’s all there and anyone can read it. And I’m strongly of the view that this misuse of public funds should be stamped out.
Fitz: Just quietly, you’d be a pretty good first federal ICAC commissioner? You’re born for the gig! If Joe Biden can become US president at 78, why couldn’t you do that at 76?
NC: (Laughs.) I think you’d have to live in Canberra and I have no desire to do that.
Fitz: What do you make of the recent public appointment of John Barilaro for a position that he created, the NSW trade commissioner in New York – even though he has since withdrawn?
NC: We will see what evidence comes out of the two inquiries, but on what we know so far it seems to me that the selection process has been corrupted. And when you have a decision emerging from a corrupted process, there is always at least the risk that the decision is going to be corrupt as well.
Fitz: OK. I was shocked and thrilled in equal measure a couple of decades ago to see you write publicly, even though director of public prosecutions at the time, that the drug laws you were administering were insane.
“It defies understanding,” you wrote, “that the self-administration of drugs should be a criminal offence. Isn’t the user doing enough self-harm without having a criminal penalty loaded on top?”
You said the truth: we’re never going to win this war on drugs and we’ve got to normalise drug laws.
NC: If anything, my views have hardened since then. I wrote that in 2001, in my first book Getting Justice Wrong. By then I had decades of being involved in drug cases from the minor use and possession level in the Local Court, up to major drug importation cases that I had been prosecuting for the Commonwealth. And I had a pretty good overview of the nature of the drug trade and the complete futility of trying to stop it by criminal laws, when by criminalising you were guaranteeing that the criminals would make extraordinary profits and corrupt everything around them.
Fitz: And yet nothing has changed.
NC: Things are worse. In the last 18 months in Sydney, at least a dozen men who have been involved in disputes about drug trafficking and turf wars have been shot dead – and it’s all because of the huge profits that are available from drug trafficking. And the only way to stop it – and we’re seeing enlightened jurisdictions around the world coming to this view now and implementing it – is to “legalise, regulate, control and tax” all drugs. And I mean, all drugs, with a different regime for different drugs of course, but we have to take the criminal profits out of the trade. And the only way to do that is to put all drugs on the same sort of footing as we do with drugs like nicotine and alcohol.
Fitz: So if you had your way, and I was a heroin addict, what you’re saying is there will be a door I can knock on, where I’ll say, “Here is my script and credit card, so can you give me one vial of heroin, please? And I can even claim it back on Medicare?”
NC: Yes. Different regimes for different drugs, and with heroin I suggest you would need the prescription, with a medical professional intervening in the process, and the whole intent being to regulate it and take the criminal profit out of it – and to provide proper care to the user.
Fitz: Ok, the insanity of the laws has long been obvious to medical professionals like Alex Wodak, heavyweight legal-beagles like you and many commentators in the media like me, as well as a huge proportion of the population. Mick Palmer, former commissioner of the AFP, says that we can’t arrest our way out of drugs. It has to be obvious to some leading politicians over the years, and yet none speak up! Certainly, no premier comes to mind with the courage to say this out loud.
NC: Quite. Politicians won’t speak out about it, because they think they will lose electoral support. They’re afraid people will think that they’re soft on crime which is utter nonsense. I think they would gain support. It’s about being smart on crime, not necessarily just tough on crime. It has to be legalised, regulated, controlled and taxed and the criminal law would still apply to anyone who tried to avoid the system. I once had a radio interview with your great friend Mr Jones, where I made the case and even he said, “Well, maybe there’s something in that” – I nearly fell off my chair – but he never came back to it.
Fitz: Over your 16 years as director of public prosecutions, you had four attorneys-general. Who was the best?
NC: Bob Debus was the best. He hadn’t always been a politician, and he had a huge amount of common sense and a desire to get things done in a practical way. He was always very personable, thoughtful and polite and not given to excesses.
Fitz: Moving on. The topic of the week is Roe v Wade being overturned by the US Supreme Court after 49 years. What do you make of that?
NC: I think the Supreme Court of the United States is now a totally discredited institution. And that’s a pity because over the decades and centuries, it’s had some absolutely outstanding lawyers presiding, but now it has been turned into a political instrument, which I think is a terrible shame. The decision overturning Roe v Wade totally ignores the principle of stare decisis – the reliance on precedent.
Fitz: Do you fear for the United States?
NC: I do. Part of the problem, I think, is the conservative side in the United States doesn’t accept that the country is changing. The population is changing, it’s becoming more black and more Latin, more progressive, and the way things were done before the Civil War just doesn’t apply anymore, although there are some who would like to take the country back to that. And there is a growing failure by the conservative side to put into practice the democratic principles that they go on about all the time. They talk “democracy” a hell of a lot, but they don’t practise it.
Fitz: What are you doing with your energies these days?
NC: I teach a postgraduate course at Sydney University called Discretion in Criminal Justice. And I’ve just published my third book which is, in effect, a textbook for that course with the same title, but I think general readers might also get something from it. I also lecture from time to time at the University of NSW and less frequently at the University of Wollongong. I speak to many Probus clubs and U3A meetings. I am still involved with the International Association of Prosecutors (of which I was president) and the Justice Reform Initiative, which is working to get away from our reliance nationwide on imprisonment as the answer to everything.
Fitz: NSW owes your careers master back at Sydney Grammar a round of presumably posthumous applause. You’re a credit to your calling, and I thank you for your time.