“The judge’s actions towards his associate and others were as pathetic as they were commonplace. He was exposed. He paid the price in public humiliation and loss of esteem.” HUGH SELBY thinks there comes a time for forgiveness, without necessarily forgetting.  

This past week a woman with outstanding intellectual gifts and a soaring career penned a well-written article for the Sydney Morning Herald. It carried this headline, “I was among this disgraced judge’s victims. Attempts to honour him are an insult”.

She had worked for the judge 20 years ago as his associate. That is the dream job for many young law graduates. To be any magistrate’s or judge’s associate is to be given a headstart on all your colleagues who missed out.

Of course, there is a pecking order, and being an associate to a High Court judge, as she was, is the apex.

The judge, a towering intellectual figure in Australian law, as a jurist and an academic, had a well-hidden fault: he made serial, unwanted advances to women, young and not so young.

Among his targets was his then associate, the author of the recent piece. It was alleged that other associates and other women, inside and outside the court, were also the objects of his inappropriate conduct.

All of this culminated, some years after he left the court aged 70, in his returning his AO, and three monetary settlements.

This towering figure became, in the public eye, a pathetic, dirty old man.

In not so ancient times misconduct was dealt with by putting the miscreant in the stocks where they would be pelted with food, or by a marking such as “A” for adultery on the forehead. By these ways, earned shame was publicised and its memory implanted in the public psyche.

Given any human’s capacity to think and remember the worst of someone, in preference to her or his achievements, we need not doubt that the judge’s misconduct will figure in his obituary.

Which makes it all the more surprising that his one-time associate penned this recent piece that is so vengeful, even after the passing of 20 years, about his recent academic credential rehabilitation.

Some misconduct is so awful that the offender and their family must change their family name and move locations to establish a new life, free from the opprobrium attached to their past.

Other misconduct, such as misappropriating a colleague’s work files so as to increase your work product at their expense, or giving a conference presentation that is plagiarised from another’s work, has more simple outcomes, such as all those around the malefactor being silently distrustful, even as they say a cheery “good morning” in the lift.

Misconduct with a sexual edge is between those extremes, sliding one way or the other in response to current norms. To take the extreme example there have been renowned High Court judges who were gay. Given that the decriminalisation of homosexuality occurred in Australia between the mid ’70s and the late ’90s one might assume, given normal libido, that they committed unlawful acts.

We, and they, and their partners can be thankful that vigilantes did not stalk them, seeking to gather evidence with which to successfully prosecute them. They were able, thank goodness, to make enduring contributions to Australian law.

This is not idle talk, as the ruin of the brilliant, gay, mathematician Alan Turing shows. His insights helped the Allies to crack German codes. After the war years he was convicted of “gross indecency” and took his own life with cyanide – a tragedy to everyone other than the homophobic.

The judge’s actions towards his associate and others were as pathetic as they were commonplace. He was exposed. He paid the price in public humiliation and loss of esteem. 

He had the good grace to preserve the value of the AO for the rest of us by returning it. Mr Ben Roberts-Smith is yet to grasp his and our need, and the needs of all other recipients of the VC, that he return his medal.

That done, the now former judge returned to his strengths. For a long time, probably decades, his work explaining contract law has been used by law students, lawyers and judicial officers. Until his disgrace it was published in successive editions by one of the best known legal publishers.

Post disgrace he recently self-published the latest edition. This might be explained by the long-time publisher deciding to cut ties, or it may not. Because, given his academic credentials and long-standing authority, he might have decided that receiving all the income, not the pittance royalty paid by the mainline publishers, was a much better return on his invested time.

Apparently, he is to speak at a conference later this year. Good for him, I say. Those in attendance will come away wiser and better informed.

But the former associate writes: “That [conference] platform lends him a credibility he no longer deserves”. 

She goes on to claim that: “His writing may be publishable, but that doesn’t entitle him to public rehabilitation.”

How sad that the pursuit of “vengeance until death” permeates her approach to this multi-faceted man.

He has had his time in the stocks. He carries the branding. But that doesn’t mean he should be treated as a pariah indefinitely, or withdraw to a place of unvisited solitude.

We are all entitled to benefit from his scholarship, and he is entitled to share it, on the book or online page, or at any public forum where there are people who want to benefit.

There were famous orchestra conductors such as Karajan and Furtwangler, who, post war, were regarded as too accommodating to the Nazis. Fortunately, for all music lovers we got to hear what music they could summon from an orchestra.

That didn’t mean that we forgot their transgressions. It meant that we could see their strengths and their weaknesses, and benefit from understanding both.

I hope that the author, the one-time associate, will at some time grasp that one can forgive or accommodate to the whole of a person, while not forgetting their faults. That is on the path to enlightenment.

Former barrister Hugh Selby is a CityNews columnist, principally focused on legal affairs.