Chief Judge set to retire after 30 years on District Court bench

Front headshot of Kerry OBrien

As careers in the law go, very few in the profession can even come close to that of highly respected Queensland District Court Chief Judge Kerry O’Brien.

At the age of 39 (which still remains rare for judicial appointments), veteran barrister Kerry O’Brien was sworn in as a District Court judge in Townsville on 27 October 1989.

At midnight on 17 August 2020 – after serving 30 years, nine months and 21 days on the bench – Chief Judge O’Brien will retire, becoming the longest-serving judge of the District Court since it was reconstituted in 1958.

Along the way, the humble Judge O’Brien has seen many changes in the ways and manner in which courts do business – including the first appointment of a woman to the bench in what had been a totally male-dominated domain for several years after his appointment and the introduction of “new fangle” technology such as the computer, a game-changing device that the then District Court Chairman (a title later changed to Chief Judge) was not at all impressed with and did not think would ever catch on.

Chief Judge O’Brien’s illustrious legal profession kicked off when he graduated in commerce and law at the University of Queensland and was admitted to the Bar in 1973.

As a barrister, Judge O’Brien appeared in various courts and tribunals throughout the state – including the Land Court, the Land Appeal Court, the Supreme Court and District Court, the Court of Appeal and the High Court of Australia.

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As Crown Prosecutor and Central Crown Prosecutor, and later as Deputy Director of Public Prosecutions, Chief Judge O’Brien appeared for the Crown in many high-profile criminal prosecutions prior to his appointment to the bench in 1989.

Among his many achievements, Chief Judge O’Brien is a past President of the Childrens Court of Queensland, has administered and presided over the Health Practitioners Tribunal, and has also served as Chair of the courts’ Criminal Law Committee and Aboriginal and Torres Strait Islander Committee.

‘Well, 30 years is a very long
time to be a judge.’

“In 2008 Chief Judge O’Brien was appointed the Judge Administrator of the District Court of Queensland and is a member of the Higher Courts Judicial Focus Group,” his Supreme Court Library profile says. “The Judge has also served as an acting Justice of the Supreme Court.

“In 2014 he was appointed Chief Judge of the District Court of Queensland. As Chief Judge he is responsible for the administration of the Court throughout the State. Apart from his administrative responsibilities, he continues to preside in hearings in both the criminal and civil jurisdiction of the District Court.”

During a recent interview with Proctor, Chief Judge O’Brien gave an insightful interview about his 11,252 days on the bench, the dramatic changes he has witnessed and those in which he has played a pivotal role.

“Well, 30 years is a very long time to be a judge,” he said. “Things were very different when I came onto the court in October 1989.

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“In that year the jurisdiction of the District Court expanded significantly. We inherited a lot of criminal work previously done in the Supreme Court…such as rapes, burglaries, arsons and very serious assaults.

“Our civil jurisdiction increased significantly as well. So it was the start of a clearly different era for the District Court.”

However, he said the most dramatic change during his time as a jurist came with the appointment of women judges and the ever-evolving and increasing use of technology throughout the courts and justice system.

‘So today, about one third of judges on this (the District) Court are females.’

“Probably the most significant and important change is that when I was appointed a judge in 1989 there were no women judges in the state,” he said. “It was another couple of years before we had female judges on the District Court and a further period of time again before there were any female Supreme Court judges.

“So today, about one third of judges on this (the District) Court are females and I think that is a very significant development over that period of time.

“Another important and significant change is that when I became a judge a computer in the courtroom was pretty much unheard of. In fact, I remember the Chief Judge (then known as District Court Chair Judge John Helman) at the time expressing some scepticism about this new fangle technology.

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“But today, computers (and new technology) are very much what we do and the old hardcopy library is pretty much a thing of the past for most judges.”

Judge O’Brien said various other important changes to the administration of justice in Queensland included the types of cases – most particularly sexual and drug-induced offences – that the courts dealt with on a daily basis and the way in which evidence is taken from victims such as children, women and vulnerable witnesses – now commonly pre-recorded to play to jurors during trials.

“In the criminal jurisdiction we’ve developed significantly in the way we treat witnesses. The evidence of child witnesses these days is pre-recorded, so to is the evidence of other disadvantaged people such as victims of domestic or sexual abuse, even as adults. Their evidence can be recorded and later played to the court so they don’t have to come into court to retell their stories to 12 strangers (on the jury).

“There has also been a considerable tightening of the rules around the sort of questions that can be asked of witnesses in those situations.

“The type of criminal case we deal with has also changed significantly. We undoubtedly deal with more sexual offences than we did 30-years ago. I don’t know that necessarily means sexual offending is more prevalent today. It could mean that it is just a case now of people being more willing to disclose (sexual abuse).

“The other big issue is drugs. We deal with more drug cases today than we did when I started out. When I was a young barrister 40 years ago we might deal with cases involving marijuana or cannabis.

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“Today we are dealing with much harder drugs; and the impact on society of those drugs, like methylamphetamine for example, is enormous. There is a real detrimental impact on society, not only in the way it effects the individuals but the type of crimes it generates.”

While Judge O’Brien is quick to point out that he is not the longest-serving judge to sit in the District Court, he is the longest to preside in the jurisdiction after it was reformed by the Queensland Government.

And he’s not particularly sentimental about the larger, high-profile cases he has presided over during the decades – saying: “I not particularly good at that.”

He does make a brief reference to trials of high-profile politicians such as former state Labor Party Government Ministers Bill D’Arcy for child sex abuse and Gordon Nuttall for fraud, but says it is the lesser-known cases that have had the most impact on him.

“I’ve been involved in a lot of cases over the years. I’ve done some high-profile ones I guess – a couple of politicians, Gordon Nuttall and D’Arcy,” he said.

“People always remind of the Tahitian prince (Hohepa Hikairo ‘Joel’ Morehu-Barlow).”

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The flamboyant, self-proclaimed Tahitian prince garnered international media exposure in 2012 when he was arrested for swindling taxpayers to the tune of more than $16 million while working for Queensland Health between 2007 and 2011.

At his sentencing before Judge O’Brien in 2013, the prosecution revealed Morehu-Barlow used the ill-gotten gains to lead a luxurious lifestyle and the purchase a $5.6 million Brisbane inner-city apartment, 63 pieces of artwork, wardrobes of designer clothes and apparel, 27 pairs of designer sunglasses, 52 pairs of shoes, 16 hats, three Bibles, 22 sets of rosary beads, a Hermes saddle and a Louis Vuitton surfboard.

Judge O’Brien, in sentencing the fake prince to 14 years’ jail, said: “It was an audacious scheme that involved the manipulation of a grants scheme…(you ran) to maintain an opulent lifestyle.”

But as a veteran judge slowly easing his way into retirement, Judge O’Brien said it was the smaller, simple cases which had left an indelible mark on him personally.

“People often say to me: ‘Oh, what about such and such case?’ But, I have found it’s the smaller cases that can leave a greater memory (to me personally).

“I mean, every case is important to someone. And sometimes they involve an outcome in which you feel as though you have made a contribution to providing a solution to someone’s problem, or delivered justice or corrected what was otherwise a terrible wrong inflicted (by a criminal you are sentencing). So I tend to remember cases for those reasons.”

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When the conversation turns the future, Judge O’Brien says the global coronavirus pandemic had put paid to his initial plans to travel abroad. However, he says he still has plenty of things to keep him busy in the meantime – such as his involvement in local sporting clubs and catching-up on chores he has avoided doing at home during his prolific law career.

Chief Judge O’Brien will be honoured with a valedictory ceremony at Brisbane’s Queen Elizabeth II Courts of Law on Thursday.

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