26 September 2023
In the second part of this illuminating podcast interview, Justice Dina Yehia reflects on her practice in the Supreme Court, which included murder and terrorism trials. In 2013, she appeared as lead counsel in the High Court case of The Queen v Bugmy. “We wanted to move the law along,” she explains. “We wanted to say [that] the High Court should endorse a position whereby judges should take into account – when sentencing an Indigenous person – the systemic disadvantage brought about by colonisation and dispossession.”
Justice Yehia also talks about the overrepresentation of Aboriginal people in custody and her work to establish an Indigenous sentencing court as part of the NSW District Court, shared advice for young lawyers, and discusses her role as Chair of Diverse Women in Law, which encourages women from diverse backgrounds to enter, remain and progress in the legal profession. “I do believe that if you love the law [then] you need to give back,” she says.
Note: The Hon. Justice Dina Yehia was appointed as a Supreme Court judge as of July 4 2022. References to Justice Yehia as "Her Honour Judge Dina Yehia SC" refers to her previous position at the District Court. We apologise for not using her new title.
Hello and welcome to ESG Matters At Ashurst, and our special Let’s Yarn mini-series presented by me, Trent Wallace. I am a Wongaibon person who was raised on Darkinjung Country and I’m the First Nations Lead here at Ashurst. In today’s episode you’ll hear part two of my conversation with Her Honour Judge Dina Yehia SC.
Before we hear that conversation though, it’s important to explain that, here in Australia, we acknowledge at the start of podcasts that we are speaking to you on the country of First Nations people who are part of the oldest continuous living civilisation on earth and who never ceded sovereignty. We acknowledge First Nations Peoples as the Traditional Custodians of the land on which we work in Australia. We pay our respects to Elders past, present and emerging and to the youth who are working towards a brighter tomorrow.
And so to today’s episode… I’m delighted to share more of my yarn with Her Honour Judge Dina Yehia SC. In this, the second part of our conversation, we talk about:
So let’s get into the conversation!
We pick up just after I’ve asked Her Honour to talk about her work encouraging women from diverse backgrounds to enter, remain and progress in the legal profession…
I think this is another very important area for me because part of it is probably informed by my own background, but also because I've met so many people in the law, particularly young people from a broad range of diverse backgrounds. Not just culturally and linguistically diverse. Women with caring responsibilities, young men who come from diverse backgrounds, people who have never had any contact with lawyers or judges who were constantly sort of telling me about how they don't feel that they fit in, how they don't know whether they would be able to be lawyers because they don't have any contacts in the law, because they have a very difficult surname, for instance, whether they're brown, whether they'd even be considered for a position. So all of those insecurities, and I think most of us, at some stage in our lives, do experience imposter syndrome.
I mean, anyone who tells me that they haven't, I'm very wary of them frankly, but I think everybody has at one stage of their lives. And I think that that can be compounded when you feel that you are different from the main group, that you have had feelings of exclusion and isolation during your formative years. So you get to a point, even though you are quite capable of studying and achieving and graduating, you still have that sense of imposter syndrome. So that's one reason why I've become so involved with Diverse Women in Law. And it is really to see what programmes we can set up to encourage women from diverse backgrounds. And as I say, it's a broad definition of diversity, to remain in the profession.
So one, to get them through the university degree, then entry level to make sure that they are supported and mentored, and then to remain in the profession and to progress in the profession. And it's very rewarding. That sort of work is very rewarding. It's really rewarding to be able to support young people in the profession. And it's also rewarding because you get to hear their stories. So you learn as much from them as you impart. And that's very rewarding. And I do believe that if you love the law, you need to give back in many ways. And that's just one way that is really important.
Absolutely. It's really interesting. I've kind of framed it for Mob as the boomerang ceiling that we come up against, kind of tackling those problems. And it was so fabulous, I actually attended one of the events that you were appearing at, and it was online, in this new world that we're in. And it was just really moving to hear people's stories and sharing in the struggles and also the joy. It's really great. Probably blend these into kind of the same kind of question because I really want to discuss your role in Walama Court Working Group, and those aspirations. And I guess blended in that would be the case of Bugmy, of course, the huge case of Bugmy. So if we could go down that path, I'd really love that, Your Honour.
Okay. Well, so I'll start with Bugmy. I think, I mean, appearing in the higher court in that case was a really important, obviously, part of my career personally. But it was also a very important case because we wanted to move the law along in this way. Obviously, the case, for Mr. Bugmy, was very important. The appeal and the ground of appeal that related to his case was very important, and that was the ground which was successful. But we also wanted to say, the High Court should endorse a position whereby sentencing judges should take into account, when sentencing an Indigenous person, the systemic disadvantage brought about by colonisation and dispossession. So we wanted that to be a principle of sentencing. And in many ways, we drew on the Canadian authorities. So it wasn't actually being all that radical. It was really framing our argument in the context of what had happened in Canada.
That was really important because we believed that sure, there are minority groups that have to deal with adversity. There's no doubt about that. And all sorts of people who deal with adversity. But with First Nations people, there is a very unique set of disadvantage and deprivation that's been brought about by a very unique event in history, which was colonisation. And the impact of that has continued. It continues now, we see the impact of intergenerational trauma, so we can't ignore it. It's a bit like the terra nullius of the criminal law. We can't ignore that. And that's not to say that all Aboriginal people are, as a result of that history, not functional or don't achieve great things. Of course, that's not to say, though the majority of Aboriginal people are doing fantastic things. But that cohort that come before the courts are impacted still by a whole range of social issues that you can sort of track back to things like intergenerational trauma.
So we were saying that's a very important thing to recognise. Anyway, the High Court wasn't with us on that and distinguished the Canadian cases because of the particular legislation that existed in Canada that didn't exist in New South Wales. So that's coming up to 10 years. I can't actually believe that the anniversary's later this year for Bugmy.
But it got me thinking. And I suppose it wasn't just what happened in the High Court, but just that my whole experience before that Western New South Wales and just seeing the same thing happen again and again and again, and nothing really getting better in terms of the over-representation of Aboriginal people in custody, and getting much worse actually. That there's got to be a different way of doing business in sentencing First Nations peoples in the courts. And of course, I knew about circle sentencing in the local court.
I'd heard about Indigenous sentencing courts in New Zealand, in particular. And so put together a proposal for the Chief Judge to consider. We took it to the then attorney and took it to consecutive attorneys over a seven-year period. And unfortunately, we did not receive funding or legislation. So last year, the Chief Judge decided, of the district court decided, well, we'll just do this on our own. And so Walama started in, I think it was January, late January last year, 2022. And then I presided for six months before I came to the Supreme Court and Judge Hunt presides now.
And really it is the most extraordinary experience that I've ever had in a courtroom. It's a very different approach to sentencing. It focuses very much on a different narrative. So we have elders, we have Aboriginal case workers in the main, we have an Aboriginal liaison officer, Aboriginal officers from Community Corrections and Corrective Services.
And we conduct conversations that really are a deep dive into the underlying issues that give rise to people's offending. And more importantly, well, not more importantly, as equally importantly, what do we do about it? All right? What services are available that can help? What case plan can be put together, that we can monitor, that could assist? So it's a very, very different way of doing, I mean, the traditional way of doing business is that the offender is sitting in the dark, never says a word, really, and is represented by legal representatives. And everything is done despite them really. And in these conversations, the judge and the prosecutor and defence counsel really take a back-step. It's not about them. It is about the offender, it's about the elders. It is about the case workers. And occasionally when the victim decides to participate, it's about the victim. It's about cultural authority, which is very important.
You would know, I don't have to tell you this, Trent. I mean, for years and years and years, historically, there's amongst many First Nations peoples, the criminal justice system is not respected, and largely for good reason. To get feedback from elders, and from offenders, and from offenders families, that it's the first time that they have actually been heard in the criminal justice system. It's the first time that they have been acknowledged as something positive as opposed to the negative, is really very uplifting.
So for all those reasons, it's an amazing process, but it also really educates the judges and the prosecutors and the defence representatives because you're sitting there listening to these stories, and you're sitting there seeing the support and the cultural authority. So you are learning from it as well. So it's not just a benefit for the offender, it's really more so beneficial for the judges and for the legal representatives. Yeah, it's phenomenal.
It's amazing. I really love those reflections and just soaking all of that up.
Now you should, have you gone to observe?
I haven't been.
You should, you will have to come and visit. Sorry-
I need to come and visit on your invitation, Your Honour.
You kind of touched on it earlier, and I just recently wrote a position paper on, despite my education, despite my employment status, despite those kinds of factors, I'm not immune to those gaps in health and other factors that are discussed. So to hear empowerment alongside recognition of those factors is an incredibly powerful tool to progress and move forward knowing that we can see a way forward and a future that is positive.
In closing, I really want to ask any tips or advice for junior lawyers, those that study law? We've touched on it earlier, people who may not come from the usual background. Sometimes I frame it as is it privilege, or is it talent? And that's probably a little bit cheeky, but I want to encourage people to really think about these tools and this piece of advice that you will kind of go on to give. And I want to know, Your Honour, what brings you joy?
Walama brings me joy. Lots of things bring me joy, but I'll answer that after I give you some tips. So I think if you are a young lawyer just starting out, it's okay to feel a little bit unsure about, if you feel a little bit unsure about the path you want to take, what area of law, for instance, you want to specialise in, that is okay. You can practise in the area of the civil law and then decide that you want to go over to crime, that's fine too. So don't feel anxious about the fact that you may not have a particular area of law that you have a burning desire to go and practise in. That's the first thing.
The second thing is that I think it's really important to connect with mentors, that it doesn't have to be a formal programme. When I started out, there were really very few formal mentoring programmes, and yet looking back, I was mentored by some wonderful people. So it doesn't have to be sort of an official programme or a formal programme, but there are some of those programmes around. So try to tap into them. I think it's really important to have somebody more senior in the profession who you can talk to and get advice from, or even just debrief about your case at the end of the day.
And depending upon where you start to practise, I know with Aboriginal legal services, and with community legal centres, which was my experience when I first started, the camaraderie is very important. I mean, you get support from each other. You almost feel as though it's you against the world. And that's a good thing in a sense, because you do, you're supported by each other, which is really important, particularly when you start out.
And then the last tip is that I think as, if you're going to be an advocate, then you really must ensure that every time you stand up to appear for a human being, that you are the best prepared that you can be. Your role as essentially a mouthpiece for another human being is a very important responsibility. And you can't just wing it. There's no winging it. You need to be really well-prepared when you appear for someone. So those are the four tips that I think that I would give.
What brings me joy? Well, besides Walama, I don't know, my partner, who has always been very supportive of me and used to drive me to the bus station in Dubbo to put me on the bus at midnight and then be home on the Friday night and to cook for me, and he is still doing that. My dog, Izzy, who I absolutely adore. My friends, of course, who are really my family, given that my extended family's all in Egypt, so they have become my family. Travel, salsa dancing, reading. So there's a whole lot of joys. We're very fortunate, aren't we, that we can enjoy life in the way that we do and work in a profession that is actually really rewarding.
Thank you so much, Your Honour. That was an absolute delight to hear. Thank you.
Thank you, Trent. Thank you so much. Wonderful interview. I love the way that you segued into all of those questions. Amazing interviewer-
Do you know, I sit in awe a lot of the time and just want to indulge in that and soaking it all up. And I'd listen to your interviews before, and I asked about joy too. My niece's middle name is Joy. My grandmother's name is Joyce. And so I'm always keen to finish on a high note of joy, like what is joy to you?
I love that question. Yeah, I love that question. Thank you. What brings you joy Trent?
Oh, look, progress, moving forward, and Your Honour, being left alone, these emails, these pesky emails. I think joy, listening to Fleetwood Mac and staring at the ceiling, and Tina Turner.
Oh yeah, Tina Turner is a joy.
Just incredible. It was such a pleasure to yawn, and I'm so, so grateful. I can't express my gratitude. You're the first person I've kind of done this podcast series with. I'm starting it off, and I'm so, so thrilled that you were able to do it. So thank you so much.
Oh, thank you. Thank you very much. It was great. And good luck with everything.
Thank you. Please take care of yourself.
You too. Bye bye.
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