37. The Queen v. Francis Terence Murphy (Rabaul 3-4 March 1952): Part one – The power to prosecute

Paul Quinlivan’s Snapshots

When I arrived in TPNG, in January 1952, most of the files for the criminal cases I was about to prosecute were missing because a senior law lecturer, resident in Sydney, had been briefed to fly up and do the prosecutions. There was, however, a ‘duplicate’ file for the Murphy case and, when I read it, I said to the Crown Law Officer, Wally Watkins: ‘This is really a compensation matter. It should not be prosecuted!’ but he said that Canberra wanted it prosecuted and I was to go ahead with it. I did what I was told but, because of what I discovered when the case came on, I wrote to my parents to send me a file of newspaper clippings concerning the Stone of Destiny which I had been collecting because my name is Quinlivan.
Since this sounds obscure I should explain that ‘Quinlivan’ is the spelling the English gave my ancestors when they outlawed them 900 years ago. The original spelling is Caindealbhan and The Annals of Ireland show (see eg entries for the years 432 and 925) that we were Kings of Ui-Laeghaire, a small kingdom based on Ath Trim, the town nearest Tara. For readers who were taught to sing about the ‘harp that once through Tara’s Halls’ I should mention that the legendary palace was like the temporary Long Houses which some Highlanders build for a special gathering and then tear down. Tara was actually an empty field in ‘No King’s Land’ and its importance lay in the fact that, in that bare field, there were two drinking wells and a small and highly portable rock called the lia fail – the Stone of Destiny – which screamed if a person unworthy to be king sat on it. It was a very convenient way of getting social stability and for generations we Quinlivans had the sacred duty of guarding that rock! Then it was taken, first to Scotland and then to London where it was enshrined as part of the Coronation Chair. Then, just before I went to New Guinea, Scottish Nationalists burgled Westminster Abbey and stole it. And the authorities resolutely refused to do anything about it!

I don’t suppose there was any lawyer, anywhere, more interested in the legal problem which unfolded. As I have said, it was our Stone and we had spent hundreds of years protecting it. Now, Government refused to gaol those who stole it! It was not because there was any lack of proof; the Nationalists named those involved, published their pictures and invited the police to arrest them. And there was no doubt they were guilty of burglary, sacrilege, theft and destruction of property, all serious charges! It was just that Government did not want to give the Nationalists publicity! And their legal experts said that ‘the facts’ were only one part of the equation; that the real issue was whether the Power to Prosecute was being manipulated by outside forces for their own purposes. The arguments and explanations flowed thick and fast and, in the end, formed the definitive statement of the law on Prosecutions, When and Why They Can Be Brought. The situation is best summed up in these words of Lord Simon:

there is no greater nonsense talked about the Attorney-General’s duty, than the suggestion that in all cases the Attorney-General ought to decide to prosecute merely because he thinks that there is what the lawyers call ‘a case’. It is not true, and no one who has held that office supposes it is.

hen, after working 12- to 16-hour days for three months, I again raised the Murphy Case with Wally and asked him what he meant by saying ‘Canberra wanted it prosecuted’, and I gave him a Grand Tour of my unique collection of newspaper clippings. And he gave me an assurance that local considerations, and not outside interference, would rule from now on. This is why he was so upset when an official announcement, made in Australia, forced the Telefomin cases on us at least a year before they should have come before the Courts.