Peter O’Callaghan interview 22 July 2009

You said you took any brief that was put to you, but did you ever develop any special fondness for any particular areas of law?

Yes, I always enjoyed jury trials, and as I say as it happened, I did very few after I took silk. But I have done a few, and I don’t think there is any better experience than running a jury trial.

What did you like especially about it, is it the watching of the jury’s faces while you’re putting to them your case, or what mostly appeals to you about jury work?

Well I find that difficult to answer, except that you have what is so obviously a ground for dissuasion, and if you’ve got the power of persuasion, you can produce the result which you or your client thinks is just. And added to that is the tension that I think every jury practitioner will tell you, you have when the jury walks into court, be it a criminal trial or a civil trial. But it’s not something I can precisely articulate except to say that’s what I liked best doing, even though it had its ups and down and its tension.

You alluded to a lot of very fine advocates that you have worked with over the years, how would you describe your own advocacy style?

The thing about advocacy is one essential – you’ve got a judge, a tribunal, or a jury, and you’ve got a case to put to them. So it’s how you persuade your point of view to that tribunal or jury. Similarly with cross examination for instance, you’ve got to be very careful as to how you cross examine, there’s a great myth that the cross examiner is in charge of the situation and the witness is terrified, in my experience generally the opposite is the case, you are tremulous about what’s going to happen with the line of questioning that you are taking. And if I thought I had any attribute, I thought that if you could produce in the witness, that is the plaintiff you called, something like a conversational style, you could get the story told. And that certainly in jury trials, is the most important feature, to have the plaintiff spread out his or her case, and I’ve always found that if you can sort of produce in the witness the ease or the flavour of the conference you’ve had the night or the day before, that’s what works.

I read that the late Joan Rosanove QC when she was doing certain criminal trials, she apparently if the foreman of the jury looked at her when they came in to offer their assessment of a case, if that person looked at her, she knew she’d won, but if they didn’t look at her, she knew that she’d lost the case. Did you find that ever happened with you?

No, I don’t think so - in fact I would be very hesitant to dispute anything that Joan Rosanove said - but it was always my experience that if the jury didn’t look at the accused, you were in trouble. But if the jury walked in and looked at the accused, and there’s no universal result of that, but if they looked at the accused, for the moment you had optimism, and generally that was forthcoming. But I don’t think that a jury walking in would worry about looking at counsel, but they certainly did or did not look at the accused.

Was there ever a time you ever felt very bad about the outcome of a case? Normally of course, most barristers would make it a point of practice not to identify too closely with a client, but was there ever a time when you did feel badly about the outcome of a case, or an inquiry that you worked on?

Oh yes, I think so. I think that there are many occasions when the result was adverse, and you went to bed or woke up and thought ‘well, if I’d done this’ or whatever. I had been told and it’s very important that you should not be more than the instrument of justice in the form of counsel appearing for the particular client, and you are thus not wedded to him or her. But if you say I didn’t kick the cat, and be even slightly averse to the beautiful administrations of my wife, if I’d got a bad result, I’d be telling a lie.

An edited version of an interview conducted for the Victorian Bar oral history project by Juliette Brodsky, filmed by Stewart Carter at Owen Dixon Chambers and edited by David Broder.