Australian Judge David Yeldham

Broadcast: 17/02/97

Courting Disaster

The suicide of Justice David Yeldham after his secret life had been revealed scandalized the judiciary. There is evidence that the highest judicial officers in the state were made aware of his behavior in the late 1980s but failed to take effective action. His practices, in the eyes of Sir Laurence Street, the former Chief Justice of the Supreme Court, made him unfit to hold his office. Original Story.

Reporter: David Hardaker
Producer: Ian Altschwager
Research: Jacquelyn Hole

David Hardaker: They are among the highest in the land, with great powers and independence. But what happens if one of their number falls short of the public's demand for the highest of standards?

Peter Trebilco, Knox Grammarian 1938-46: When you're a Supreme Court judge and you get arrested or a district court judge or any other public figure, the damage to your reputation is absolute.

David Hardaker: How the private sexual life of Judge David Yeldham became public has exposed a judicial system which could not deal with a judge who left his court open to compromise.

Sir Laurence Street, Former Chief Justice NSW Supreme Court: I don't want to sit in judgement on the man. He's dead now. I feel he let me down. I wouldn't go beyond that and I'm sad, I'm disappointed.

David Hardaker: There's now new evidence that information on David Yeldham's activities went to the highest levels of Government.

Tonight on Four Corner's, the tragic double life of a man who betrayed the law and the unanswered questions he left behind.

Title: Courting Disaster

David Hardaker: The celebration of the new legal year -- a time when the might of the law comes before the majesty of the church. This ritual reminds those who uphold the law that theirs is an onerous duty -- that their special position of trust demands the highest standards of conduct. This year at Sydney's St James Anglican Church, those who demand the truth from others are being challenged to seek the truth about themselves.

Reverend Peter Hughes, St James Anglican Church: We may never commit an arrestable offence, but there are things we have thought or done or failed to do which often involuntarily rise to consciousness, stir up a sense of shame and even of guilt and remind us we are not paragons of virtue, we are not entirely what our well polished public image would suggest.

David Hardaker: Hanging over these proceedings is the memory of a late judicial colleague -- the former NSW Supreme Court Judge, David Yeldham, who lived a secret life of furtive sexual encounters with other men in public toilets.

Reverend Peter Hughes, St James Anglican Church: It's the gulf between our public image and our inner reality we know too well, which prompts the fear of exposure and a preference for the obscurity and anonymity of the shadows. Once exposed, it might for some be impossible to endure or survive the public humiliation.

David Hardaker: The exposure of the truth which David Yeldham kept hidden for so long led him to suicide. And his life of deceit has revealed serious flaws in the system of judicial accountability.

John Basten QC, Barrister: I think one has to have a structure which allows for public accountability, otherwise these concerns are raised, complaints are made. But there's no mechanism which allows the public to be reassured that judges do perform their work well and with propriety, or if they don't, that they can be properly dealt with.

David Hardaker: By the Supreme Court's own standards, David Yeldham should not have been one of their number, not because he was secretly homosexual but because he played out his homosexuality in the most public and high-risk way. He broke the law while sitting as a judge, opened himself to compromise and risked bringing the Supreme Court into disrepute.

Sir Laurence Street, Former Chief Justice NSW Supreme Court: I believe that he was a man of such intellectual integrity that if he were confronted with the fact that look David, this is just something you can't continue to remain on the bench when you're from time to time seized by this devil, if you like, which drives you down to this sort of conduct, I think he would have recognised it. But it was conduct which is incompatible with judicial office, in my view.

David Hardaker: The exposure of a judge unfit for office came not from the judiciary but in State Parliament.

Franca Arena, NSW Upper House Member [in Parliament]: What about former Supreme Court judge, David Albert Yeldham -- was he or was he not interviewed?

David Hardaker: A NSW Upper House member, Franca Arena, was concerned that the NSW Royal Commission into Police had gone easy on the judge in its paedophile inquiry.

Franca Arena, NSW Upper House Member: Only saying that this is one example of a person who appears to have been given preferential treatment.

David Hardaker: Her action came at time when paedophilia was under intense public scrutiny, with constant allegations at the NSW Royal Commission of men who'd cheated the law for years. In this climate David Yeldham, the distinguished former judge, was forced into an extraordinary public denial.

David Yeldham, Former High Court Judge: But if it was construed as meaning I'm a paedophile, well then I strongly deny that and I hate paedophilia, I always have. I've never been one and I'm never going to be one.

David Hardaker: No credible evidence has emerged that the judge was a paedophile, but four days after the public allegations, the loving husband and grandfather committed suicide. The NSW Royal Commission has since heard evidence that David Yeldham engaged in indecent behaviour in public toilets, both as a judge and at other times of his life, and that when he was caught by police, he lied his way out of it.

John Basten QC, Barrister:
Q: If he was a witness in his own court, how would he go down?
A: Well one hopes he would go down. One hopes he would not be accepted as a witness. But the difficulty is, of course, that in the circumstances, his conduct was conduct which was known to police officers, and he himself was required to judge the credibility and the performance of police officers from time to time in his court. That's why it gives rise to concerns for the public.
Q: What of the argument, though, that his judgements weren't affected by being in this position?
A: The trouble with that is that we will never know, and public appearances of justice are as important as its substance. And if there are concerns that there may have been influence, those have to be cleared.

David Hardaker: Raised in Sydney, the son of a doctor, David Yeldham was sent to board at the prestigious Knox Grammar school on Sydney's North Shore. In the war years, when David Yeldham attended, the boys were imbued with the values of hard work and discipline, as one old classmate recalls.

Peter Trebilco, Knox Grammarian 1938-46: I joined the school, I think, 14 years after it was opened and it was based on the fairly traditional English Public School model. And we were expected to behave with courtesy towards other people and not to be a nuisance to anyone. The values were those of the Presbyterian Church -- there's no possible doubt about that, and middle class.

David Hardaker: Virile Agitur is the old school motto -- do the manly thing -- and that's what David Yeldham did. He was a member of the First XV Rugby team, an officer cadet and Captain of the School. He was an achiever -- and there, sharing the schoolboy struggle and strife was Peter Trebilco, the school vice captain.

Peter Trebilco, Knox Grammarian 1938-46: He was always a man I felt very comfortable with. He was -- he had quite a serious speech impediment when he first hit the upper school, and like most of the things in his life, he overcame that, so much so that he won the oration prize in his last year at school. And that's a big jump, I think, for anyone. And being successful, I think, was very important to David. But he was also very shy -- he kept himself very much to himself really. He was a private man, I think that's a proper word.

David Hardaker: Peter Trebilco and David Yeldham shared much in their years together. Armed with their leaving certificates, they left to take on the world but their lives would take radically different paths. Peter Trebilco came to terms early in life with his desire to have sex with men. The old Knox boy is now an icon of Sydney's gay community -- a survivor of less hospitable times.

Peter Trebilco, Knox Grammarian 1938-46: For men of my generation, there was an incredible amount of opprobrium associated with any allegation that you had indulged in any form of male-to-male sex. Whether it was true or not, whether you were acquitted or convicted, your reputation would be permanently damaged, if not ruined, and that's the sort of pressure that men of David's calibre always had to deal with.

David Hardaker: For those at the centre of Sydney's gay community, sex no longer needs to be hidden. But it was a different story when men of Peter Trebilco's generation were looking for partners.

Peter Trebilco, Knox Grammarian 1938-49: One did what are called beats. These are railway stations, public conveniences, parks, and there you met men and you had remarkably anonymous and quick sex, and then put that to one side, that was a part of your life, that for that day was now closed and you went back to whatever else it was that you wanted to do.
Q: And what stage in your life did you...?
A: I started doing that at the age of 11.

David Hardaker: While Peter Trebilco was living a fully homosexual life by the mid 1950s, David Yeldham, the ambitious young solicitor was moving towards the traditional trappings of marriage and family. But it's alleged that as early as 1956, while in his late 20s, David Yeldham was seeking sex in a railway station.

Dr Garry Dowsett, Department of Sociology, Macquarie University, NSW: A railway station is a place where a lot of people travel through each day. There's a lot of trade in a railway station. Railway stations have been known as places for these kinds of sexual encounters, and are today, known that that's possible. It's because there's a large number of people going through, it's possible to find a private space for a very short period of time.

Trevor Richey, Former NSW Senior Transit Police Officer: You'd go to the urinal to go to the toilet and .people'd stand beside you, some of them'd look you up and down and smile at you. Doing the job I've done, I've found out, you know, you make up your mind what they were after. You'd often see a couple of male persons in the cubicles performing sex acts, oral sex and mutual masturbation -- it's things like that. I wouldn't like my son to go into railway toilets and have these sort of actions put upon him.

David Hardaker: The man who says he had sex with David Yeldham in 1956 was then aged 18. He says Yeldham picked him up at St James railway station and from there the two men walked up to the solicitor's rooms, where Yeldham paid 10 shillings to have sex. The two men then saw each other off and on for 10 years.

The young solicitor was taking an enormous risk. Before 1984, homosexual acts were illegal, punishable, at the time, by up to 14 years jail. But Yeldham was also placing his fortunes in the hands of a pretty unreliable character. Before his encounter with Yeldham, the 18-year-old prostitute had been charged and acquitted of paedophilia offences. He later spent time in jail on separate crimes and is now facing more paedophilia charges. But this it wasn't the first time that David Yeldham had run the risk.

Peter Trebilco, Knox Grammarian 1938-46: Quite casually, never deliberately, I would see David here and there. And I saw him in areas where I knew what I was doing there.
Q: These are beats?
A: And I have reason to believe, but I have absolutely no evidence that that's why he was there also.
Q: What period are we talking about here?
A: From his -- well, I was -- I would think 1947, 1948 onwards. Every so often - and this was just a matter of convenience, I think. We never discussed it ever, because one of the things about the beat culture, if there is such a thing, is absolute anonymity is essential.

David Hardaker: As David Yeldham moved from solicitor to barrister through the 1950s and '60s, there was an ever present threat to any man doing a beat.

Peter Trebilco, Knox Grammarian 1938-46: It was very dangerous, not for the reasons that it's presently dangerous, which are the bashing crowd that have been around now since the middle '80s. No, it was dangerous because of police entrapment. Police officers did try and appear to offer inducements for sexual favours for a man, and then, when any response was made at all, would immediately arrest. And I would think that most men who did the beat would at least have been arrested once. They may never have been convicted, but they would have been arrested at least once. And when you're a Supreme Court judge and you get arrested, or a District Court judge or any other public figure, the damage to your profession is absolute.

David Hardaker: In 1974, David Yeldham was appointed a judge of NSW's highest court, the Supreme Court. But his lifestyle didn't change.

Four Corners has learnt that in the late 1970s, Judge Yeldham approached a now prominent member of Sydney's Bar in toilets at Wynyard Railway, in the centre of Sydney's business district. But the barrister decided not to report the incident. Then, in 1980 a police officer saw the judge acting suspiciously around Wynyard toilets and filed a report to his superiors. Rumour began to spread.

Richard Cobden, Barrister: Legal circles are very gossipy circles, and obviously when gay lawyers do get together, they sort of tend to say oh have you heard such-and-such-a-judge is gay or so-and-so is gay? So I've heard for years -- I couldn't put a number on many years, that there was a Supreme Court judge who was gay and his name was David Yeldham.
Q: For 20 years, 10 years, five years?
A: Maybe 10. Maybe 15.
Q: How well known do you think it was around the Bar?
A: Well the Bar's a pretty gossipy place, and so I'd be very surprised if that wasn't widely known, I'd have to say.

David Hardaker: 1980 was the year it all threatened to unravel for David Yeldham.
Allegations about the judge went to the highest levels of the NSW judicial system. Not only did the then Chief Justice of the Supreme Court hear the rumour, but as we'll see, there's new evidence that the then Attorney-General of the State also knew of allegations. Ultimately though, there was no accountability because there was no system to find the truth.

After 15 years, accounts are confused about how the then Chief Justice of the Supreme Court, Sir Laurence Street, came to hear talk about his brother judge. It's also unclear how much information Sir Laurence had to act on. Retired from the bench, Sir Laurence is now hazy on some detail. He's recalled that a Sydney barrister was the source of the Yeldham rumour. The barrister had heard a story from police that the judge had been picked up by the Vice Squad at Wynyard toilets, but that he hadn't been charged. Sir Laurence called on the barrister to tell him what he knew.

Sir Laurence Street, Former Chief Justice, NSW Supreme Court: See I was concerned, really, to -- with -- there were two alternatives -- either the rumour was true or it was false. In my previous position -- and I say it quite frankly, was that it was false, but it might have been true. But I wanted to have it checked out because if it were false, then it would be a serious case of contempt of court -- scandalising the court.
Q: Because the police are putting about such a rumour?
A: Yes. So I wanted to have the rumour tracked down.

David Hardaker: The barrister checked around his old police mates but was unable to shed any more light on the story. So, Sir Laurence called David Yeldham to put the rumour directly to him.

Sir Laurence Street, Former Chief Justice, NSW Supreme Court: I got a report back negating substance in the rumours, saying that there were no -- there was nothing that had been illicited that could be reported to me. So at that stage, I discussed it with the judge. He denied it. We discussed the likelihood that this was some police officer who may have been harshly dealt with by the judge with spreading some false malicious rumour. It was a totally isolated event and it didn't loom large in my calendar of activities.
Q: Did you think it was possible to ring the Police Commissioner to have it checked out?
A: No. That would put him in a -- one of the best ways to give wide exposure of the rumour, which may well have been unfounded.

David Hardaker: Judge Yeldham had elected to place his interests above the reputation of the Supreme Court.

Sir Laurence Street, Former Chief Justice, NSW Supreme Court:
Q: Do you feel any sense of betrayal that he wasn't candid with you when you confronted him with the rumour?
A: I don't want to sit in judgement on the man. He's dead now. I feel he let me down. I wouldn't go beyond that and I'm sad, I'm disappointed, I might have been able to help to avoid some of the tragedy that followed if he'd been candid with me.
Q: Do you feel that he let down the Court as an institution?
A: Yes, yes.
Q: But it must upset you since you...
A: It does, it does. Anything that touched the court touched me personally.

David Hardaker: The Street family is the country's most powerful legal dynasty, Sir Laurence's father and grandfather preceding him as Chief Justice. Last year, though, the former custodian of the State's highest court found himself on the other side of the Bench when he was called to give evidence at the NSW Royal Commission. Sir Laurence told the Commission his recollection that he probably heard of the Yeldham rumour through talk around the Sydney Bar. But the Yeldham rumour was more than mere barristers' gossip.

Four Corners has learnt that the NSW Attorney-General of the day, Frank Walker, also heard information on the judge. Walker says he asked that it be conveyed to Sir Laurence by his Department head, Trevor Haines.

Sir Laurence Street, Former Chief Justice, NSW Supreme Court: It may be that he mentioned it to me and not the Attorney. It may be the Attorney was the source of it. And they may have independently mentioned it or passed the rumour onto me.
Q: So you accept the then Attorney-General's memory...
A: Oh if he has a recollection, I wouldn't quarrel with that, but as I say it does -- it fits in -- it fills in a missing piece of the jigsaw in that I have no recollection at all. Notwithstanding being prompted by his recollection -- I have no recollection of how the rumour came to me. And that seems to be the pretty obvious way in which I came to be aware of it.

David Hardaker: But the Royal Commission didn't hear that story and it didn't raise with Sir Laurence the prospect that the Attorney-General might have known. The Commission also left unchallenged Sir Laurence's assertion that he spoke to no-one about his meeting with Yeldham. I didn't mention it to a soul, Sir Laurence said, I'm quite certain of that. The Royal Commission has been left with the impression that no other senior law officer knew that the Chief Justice had confronted a brother judge. Now, though, Sir Laurence is prepared to concede otherwise.

Sir Laurence Street:
Q: Would you accept now that you might have discussed that with Attorney-General Walker?
A: It's possible that I rang him back and said look I've had it checked out and it's -- the rumour doesn't -- is unfounded and the judge denies it. It's quite possible but..
Q: Would you concede now, then, that your account to the Royal Commission might have been incomplete?
A: Oh. no, no. What I was intending to convey was that I had not myself furthered the rumour in any way.
Q: It's just that you're so certain in your Royal Commission evidence that you spoke to no-one other than Yeldham about this.
A: Yes.
Q: So....
A: Well that may have been a defect in my memory. I still have no recollection, I still -- if I'm asked did you speak to anybody, I would still say no.

David Hardaker: But there's more to the Walker story. The former Attorney-General recalls that the information he received had come from a mother who said Yeldham made an indecent approach to her 11-year-old son at Wynyard toilets. She was angered the police wouldn't act. According to Walker she made a complaint to the Department. Walker says he asked that the complaint be conveyed to Sir Laurence, but Sir Laurence says he has no recollection of it being put to him.

Sir Laurence Street, Former Chief Justice, NSW Supreme Court: And would have thought that if there were, in the Department, a complaint from a mother of a boy, there'd be no question of my having some under-cover operation to check out a rumour.

David Hardaker: The former head of the NSW Attorney-General's department, Trevor Haines denies he spoke to Sir Laurence about the incident or that his department received any complaint of the kind suggested by Walker. As well, the Department has told us it has no record of the complaint. However, Frank Walker's recollection raises important questions because if his memory of the detail is correct, the incident should have been thoroughly investigated. But, as yet, his version hasn't been publicly tested at the Wood Royal Commission.

Despite the near exposure of his secret life, David Yeldham was still drawn to the railway stations. And while, after 1984, sex between consenting male adults was legal, it was still against the law to have sex in a public toilet.

Peter Trebilco, Knox Grammarian 1938-46:
Q: Why would he place so much on the line by continuing to do that?
A: I can't answer for him. I know that in my case -- and I can speak about this, is that the sexual drive is very, very important and you learn the rules of doing the beat very quickly. And you always remember to apply them, and so consequently you can continue, with some fortune, to live this double life.
Q: What do you get out of doing the beats?
A: I think it's not just the sex. In fact I know some people who will go to a beat just to see if they can still attract another man and if they can they'll go home perfectly happy. But there's a vast amount of excitement. There is -- there used to be -- there still is -- danger associated with this -- and the man you think is interested may not be and he may be very offended and become violent. He may be a police officer.
Q: Much of an adrenalin rush?
A: Oh yes. Yes. Very definitely. Very definitely indeed.

David Hardaker: By the mid 1980s, Yeldham faced other pressures with the judiciary coming under scrutiny like never before. A crooked Chief Magistrate and claims of corruption against a High Court judge and a NSW District Court judge -- both later acquitted -- meant scandal was in the air. The NSW Government reacted in 1986 by introducing a Judicial Commission to investigate complaints against judges. Later came the Independent Commission Against Corruption, which could investigate also the judiciary. Still, Judge Yeldham did the beats.

Trevor Ritchie, Former NSW Senior Transit Police Officer:
Q: Is he well known around the railway stations?
A: From my knowledge he was, yes.
Q: For how long?
A: Probably nine or 10 years now.
Q: So this would be going back to the mid '80s?
A: Possibly back that far.

David Hardaker: Declaring he'd had enough of life on the bench, David Yeldham announced in June 1988 that he would retire in 18 months. But within months, Yeldham, still sitting on the Supreme Court, was picked up by the police at Central Railway Station toilets. This incident would again expose the system of judicial accountability as utterly ineffective in the case of David Yeldham -- despite all the new reforms. The ICAC and the Judicial Commission would ultimately take no effective action. First, though, the police.

According to evidence at the NSW Royal Commission, transit police observed Judge Yeldham in a cubicle with another man for 90 seconds. When the men emerged, the police took them in for questioning. Yeldham's first response was to show his judge's identification. Then he lied to the police, explaining he'd felt sick, rushed into the toilet and found another man had followed him in. The other man told an equally improbable story. In the end, the police decided reluctantly to let them go. Trevor Richey didn't arrest David Yeldham, but he's familiar with the law.

Trevor Richey, Former NSW Senior Transit Police Officer: Well, with the way the law is now with the Summary offences, it'd be pretty hard to prove anything in a court of law for conflicting stories. Nine times out of 10, they don't want to go to the court anyhow, so in that sort of scenario you're just better off asking them to leave the station and not to come back.

David Hardaker: Whatever the merits of the police case, it didn't help that a judge was involved because, as Trevor Richey attests, it's part of police culture that taking on a VIP can be a damaging career move.

Trevor Richey, Former NSW Senior Transit Police Officer: There is pressure on the basic uniformed officer, yes, not to charge. Rather than charge, you had it over to someone higher up -- Special Branch or someone like that, and allow them to deal with it, and they usually take it over from there.
Q: Why would you feel that your career could be under threat?
A: Well, I mean, they've only drop words -- only got to drop words in higher places and any promotion you went for wouldn't be favourably looked at then.

David Hardaker: The Central incident might have remained buried, but a year later the ICAC received a complaint, alleging Yeldham was given preferential treatment by the police. The ICAC interviewed the police involved but found no evidence of a cover-up. They also ruled that they couldn't investigate the judge because his behaviour did not fit the ICAC's definition of corruption. The then Commissioner Ian Temby can't speak about the decision because of secrecy rules.

However, Four Corners has interviewed a man who's account of the Central railway incident of 1988 differs sharply from accounts which have been given to the ICAC and the NSW Royal Commission. His first-hand account suggests Judge Yeldham had a contact in the police who came to his rescue when he was brought in. The man now believes that that contact was from the NSW Police Special Branch. The man has declined to appear on camera and his words are being spoken by an actor.

Reconstruction of Witness: So I looked down and I saw the judge speaking to someone on the phone and I basically said what the fuck's going on here? And the arresting officer come over and he said look, look, it's OK, it's OK -- he's a judge, he's a judge, you know, don't worry about it, it's OK, he's a judge. And I said I don't give a fuck who he is mate, I mean, what's he doing on the phone -- he's got the same rights as anyone else, why's he getting a phone call? He's not meant to get a phone call until after he's charged. He said look it's OK it's OK, he's a judge.
Q: How long do you think the judge was on the phone?
A: Probably two minutes, maybe a little bit more, maybe a little bit less.
Q: Do you know who he was calling?
A: I had no idea.

David Hardaker: The witness says no police made a telephone call -- only the judge and within 10 - 15 minutes a car arrived at the station.

Reconstruction of Witness: So a couple of fellas come through the door, you know, plain-clothes detective-looking, they identified themselves -- they had badges. I'm pretty sure one of them was a sergeant or that sort of rank. And I remember realising well, you know, the brass is here, you know, I've got to keep my nose right out of this thing.

And they've pulled the arresting officer aside um spoke to him, spoke to the judge, spoke to the judge's friend shall we say. Basically spoke to everyone. And then the detectives or whatever they were, well Special branch fellas, in hindsight, they said look don't worry about this fellas, we'll work it out the judge is going to come with us. Basically same old story -- we weren't here, this didn't happen, let's just leave it at that, OK, we'll do all the paperwork, we'll look after it. And they went within minutes.
Q: And you have no doubt that Judge Yeldham left in the company of these plain-clothes officers?
A: No doubt whatsoever, no doubt at all. No, the officers jumped in the front seat and the good judge got in the back seat and they drove off down the ramp.

David Hardaker: When this incident came before the Wood Royal Commission, there was no mention that plain-clothes police officers had intervened. But one transit policeman said he'd been told by a senior officer that Judge Yeldham was a known cat or homosexual and was on-side.

John Basten QC, Barrister: I think the serious concern arising out of what the Royal Commission has been told, is probably that a judge in Mr Yeldham's position did not himself appreciate that he was in a difficult situation. Immediately the police were concerned with his conduct and immediately they became aware of his status, and apparently offered lenient responses because he was a judge. Once that situation had arisen, he was compromised, and he should have known it.

Ian Temby, Commission Independent Commission Against Corruption: [Archive 1989] I recognise that the notion that you don't dob in a mate's part of Australian culture. On the other hand, the sort of practices we're interested in are very gravely against the public interest -- they do harm to all of us.

David Hardaker: But there's more to the ICAC story. Within weeks of receiving the original complaint about police protection of the judge, Commissioner Ian Temby, now an Acting Supreme Court judge, met with the Chief Justice and President of the Judicial Commission, Murray Gleeson.

The new Chief Justice was about to hear a story about David Yeldham and an incident in a public toilet. But this wasn't news to the Chief Justice. According to notes made by Temby, the Chief Justice replied that that had gone around the Sydney Bar three years ago. As it turned out, Temby's was a new story and although Gleeson wanted to know more, Temby wouldn't go into detail. The two men agreed that the ICAC should handle it -- why? Well, the Judicial Commission had no power to investigate a retired judge and by late 1989, David Yeldham was only a month away from leaving the bench.

John Basten QC, Barrister: I don't believe that any conduct which occurs whilst a judge is in office should be immune from investigation, and the public confidence in the conduct of the judiciary demands that. But judges also retire from judicial office, but not necessarily from public life. It's very frequent that judges are reappointed after retirement, either as acting judges in the same court, or as Royal Commissioners, or various other functions in which their prior role as a judge has been instrumental in them being appointed to the new position.
Q: So, why though, is that a problem?
A: If they have been improper conduct - if there has been improper conduct in the past, the public should know about it and if it's something which would have prevented their reappointment, then the Minister or whoever is responsible for making the appointment should know about it.

David Hardaker: The Yeldham incident has highlighted the shortcomings of the Judicial Commission. It was created as an independent body to inquire into complaints about judges, but it seems almost designed not to find the truth. A Judge can retire and avoid public scrutiny of his behaviour. As well, the Commission must wait until it receives a detailed written complaint before it can act. John Basten QC says it should be able to investigate rumour of the kind which surrounded David Yeldham.

John Basten QC, Barrister: You have to make enquiries. You have to talk to the people who have heard the rumour, see if there is any detail and if there is detail, then you check out any corroborative sources and you speak to the person who is alleged to have misconducted themselves.
Q: This may involve contacting the Police Department?
A: Yes, it may.
Q: Could that not, though, fan an unfounded rumour?
A: The danger of fanning a rumour is always present in any police investigation, including of public officials in any walk of life. One has to work with as much discretion as possible. And obviously the enquiries will be discreet until they are clearly established. But that is a risk that one has to take.

David Hardaker: In the end, the two bodies which could investigate a judge were prevented by their own rules from investigating Judge Yeldham. It meant Yeldham retired with all entitlements, including a Government-funded pension.

David Yeldham, Former High Court Judge: The system of justice at the moment is a farce.

David Hardaker: In retirement, David Yeldham continued his involvement with the law, in this interview campaigning to abolish the use of unsworn statements in sexual assault cases. And with the mantle of a retired Supreme Court judge, he continued to carry out public duties. He received work from his old court, acting as a referee in commercial disputes. He conducted arbitration's for Government departments. And he was appointed an Assistant Commissioner at the Gyles Royal Commission into the NSW Building industry.

John Basten QC, Barrister:
Q: Does it concern you that after leaving the Bench, Mr Yeldham acted as a Royal Commissioner?
A: I think the concern is that his conduct, if it were known at that stage, had not been the subject of appropriate inquiry and investigation, the Royal Commission that he was involved in -- with had very little or nothing at all to do with the police. So in that sense there was no problem, I would have thought, but he might equally in retirement, have been appointed as Assistant Commissioner with the ICAC, or even with the Wood Royal Commission, which in -- was investigating police misconduct. Now those appointments would have been quite inappropriate for someone, if the rumours which we now know of, were true. And the fact that they were not investigated, simply because he retired as a judge, is a cause for grave concern.

David Hardaker: It's now known that in his retirement -- and before he was made an assistant Royal Commissioner, Yeldham was again caught -- this time in his old haunt of Wynyard where it was alleged he masturbated on the stairs. According to evidence at the NSW Royal Commission, again the Police Special Branch intervened and protected him from prosecution.

Franca Arena, NSW Upper House Member: [In parliament] What about former Supreme Court judge, David Albert Yeldham -- was he or was he not interviewed?

David Hardaker: Right to the end, as his secret life began to unravel, David Yeldham tried to get away with it again. He tried to bluff his way through one last time when questioned in camera at the Wood Royal Commission. I'm bisexual, let's face it, he said. He admitted he lived with the fear of blackmail while a judge, saying I realised it was a possibility, but it never happened and I suppose I was lucky, I just didn't think too much about it. Finally he admitted to an indecent act on the stairs at Wynyard, but said he regarded it as relatively minor.

Within hours of making his partial admission, he gassed himself in his car at home, leaving a distraught brother to defend a life even he didn't fully know.

Peter Yeldham: He lived by the law, he was a very good servant of the law, and the law, to my mind, in the end seemed to let him down.

David Hardaker: There were two services for David Yeldham -- the first, for friends and family was held at his beloved Knox school. The oration was given by the Governor-General of Australia and former High court judge, Sir William Deane who'd been through university with the young Yeldham. And there, anonymously, stood Peter Trebilco.

Peter Trebilco, Knox Grammarian 1938-46: And we were waiting and then it was time for the family, the mourners -- the principal mourners to arrive, and we all stood up and waited and then we all sat down. And the first lesson was read by the Governor-General of Australia. And I said to my friend, that's the noise of the establishment closing ranks.

David Hardaker: At St James Church, the legal profession gathered to pay its last respects to a man they were only just beginning to know.

Sir Laurence Street to Minister: It was a beautiful service.

Sir Laurence Street: I think if it -- there's was one lesson I've learnt from the Yeldham situation, is that one never really knows anybody 100 per cent throughout, and simply that's human nature.

David Hardaker: This month the gay and lesbian community celebrated its coming out at the launch of the Mardi Gras. But to the end, David Yeldham was trapped by the strictures of his times.

No-one knows if David Yeldham and his judgements were compromised -- and that is the dilemma facing the judicial system. Forced to live a lie while demanding the truth of others, he was driven to jeopardise the standing of the State's Highest Court and betray the trust of every person who appeared before him.

Link to this article: http://www.abc.net.au/4corners/stories/s72790.htm