BOOK REVIEWS

Murray Gleeson The Smiler

By Michael Pelly | The Federation Press | 2014

On 27 May 2014 the Hon AC QC delivered the following speech at the launch of Michael Pelly’s book The Smiler before a full house in Queens Square.

in Kabuki theatre. Anyone who has professional trajectory is a chronology experienced that genre will know that the of the luminaries of the Bar: Japanese audience will wait breathlessly , Jack Cassidy, Jack for, say, the middle of Act 2 when the Smythe, Nigel Bowen, Bill Deane, Tony lead actor performs The Look. It is a great Mason, , , tribute to that nation’s cultural unity that , Michael McHugh, Roddy every member of the audience knows it is Meagher, Tom Hughes, , coming. If executed perfectly, The Look , Bill Gummow, Dyson will draw shouts of encouragement from Heydon, Dennis Mahoney, David Hunt, the audience – such as ‘matte imashita’ Ken Handley, Roger Gyles, Peter Young, – ‘We have been waiting!’ – by way of Graham Hill, Terry Cole, Bob Stitt, applause. Murray was always content with David Jackson. Each person on this list a shudder. features in the book as an actor; some as a commentator. To the ‘stare’ anecdotes in the book, I will add one. As chief justice, Murray sat as This extraordinary range of talent deserves a trial judge in murder trials – something emphasis. For it was out of this ruck that I never dared to do. As I recall the story, Murray Gleeson rose to pre-eminence as the first such occasion was in Taree, a an advocate, as a leader of the profession I am constrained by the subject matter triumphal return to his home district. and as a judge. Along his professional of this evening’s event to be short, to the journey, he acquired the confidence and After the trial, Murray was asked, by a point, to eliminate subordinate clauses, the respect of the entire legal profession, very experienced criminal trial judge, how restrict the number of adjectives and first in and, then, he had dealt with objections to evidence. adverbs and abjure my propensity for throughout . He replied: ‘I never made any ruling on repetition. I will also attempt to refrain evidence. I stared at either the person To those of us who grew up in Murray from saying anything funny, unless it can asking the question or the person making Gleeson’s professional shadow it is the be compressed into a single sentence that the objection and, on every occasion, early chapters of this book, about his cuts to the core. either the question or the objection was family background and education, which Any discourse on Michael Pelly’s withdrawn.’ As I recall the story, this trial provide the most new information. His biography must observe the requirement ended in a hung jury. This is the only verbal dexterity in court, like his physical so well expressed by Tennessee Williams result from which there can be no appeal dexterity on the tennis court may, in in The Glass Menagerie, to consider only of any kind. part, be explained by the inheritance of ‘Things of importance going on in the the skills his father Leo displayed as a This is quite typical of the career so world! Never anything coarse or common graduate of the Arthur Murray School of thoroughly set out in Michael Pelly’s or vulgar.’ Otherwise, in the presence of Dancing. book. There was never a misstep along the subject of the biography, one risks the way. The core of his future professional style being subject to the stare. This book was on full display – not merely in his contains numerous references to Murray Pelly recites many tales which are familiar outstanding high school achievements Gleeson’s capacity to convey his feelings, to the legal profession. However, there as a debater and orator but, we now of disapproval or worse, wordlessly is much in this book that is new. He learn, revealingly, in his approach to just by looking. As Roddy Meagher so has done Australian legal history a great cricket. He was not known for the memorably put it: ‘Murray Gleeson likes service by interviewing family, friends and reckless indulgence of pull shots or hook flowers. He stares at them to make them colleagues whose reminiscences may not strokes. It appears that his favourite – and wilt.’ otherwise have been recorded. most effective shot – was the low-risk, Murray would have made a great actor As the book recounts, Murray Gleeson’s sublimely effective leg glance. More than

86 | Bar News | Winter 2014 | anything else, this batting style reflects the for major sporting events on television. allegations made by Senator Heffernan quality most essential for success at the As the current chairman of the ABC, this against Michael Kirby. bar and on the bench – the capacity for is a sad bit of history, but I felt worse at The most novel content of the book for detachment. the time as the unsuccessful counsel for many lawyers is the information Michael the ABC. The central spine of the narrative after Pelly has been able to obtain about the these introductory chapters primarily Many of Chief Justice Gleeson’s internal workings of the consists of major cases in which Murray judgments in the Supreme Court with respect to the process of judgment Gleeson was involved as an advocate will stand the test of time. However, writing. There is a great deal of detail, and as a judge. From the thousands of inevitably, it is the judgments in the not all of it edifying. One of the most such cases Michael Pelly, understandably High Court, as the court of final appeal, revealing aspects of Murray Gleeson’s for a journalist, has, primarily but not that will prove most influential in the character in this biography, albeit exclusively, selected those which achieved decades to come. Pelly discusses many unintentionally revealing, is the fact that public prominence. There were many of the key cases on constitutional law – not one piece of this new information such. the corporations power, foreign affairs comes from him. power, judicial power, the constitutional As an advocate he was involved in The life that is celebrated in this protection of political speech, the right landmark cases: on the corporations biography is not only a legal life. to vote and one-off cases such as whether power in the Constitution; on the legality Scattered throughout the book are a British citizen has now to be treated of abortions; on taxation law – including observations which reflect a major as a foreigner. In addition there are what became known as the Curren transition in Australian society. I refer to numerous cases on the principles of scheme – in the prosecution of Iain his Catholicism. This was his mother’s but statutory interpretation, particularly in Sinclair; the Combe Royal Commission not his father’s religion. Nor was it the the context of immigration appeals. There and the Paddington Bear Affair; the religion of his wife Robyn, who is quoted is also a wide range of criminal judgments defamation of Kate Fitzpatrick; the Fine in the book as saying that if her father on matters such as the principle of Cotton ring-in scandal; and the Tasmanian had been alive at the time he would never double jeopardy and the identification Dams Case. have allowed her to marry a Catholic. of miscarriages of justice. In the civil law As a judge there was a similar diversity there are important cases on the scope Murray Gleeson is quoted as saying that, from which to choose: allowing Nick of negligence – restoring an appropriate as the first Catholic ever appointed as Greiner’s appeal against ICAC; requiring focus on the personal responsibility of chief justice of New South Wales, he was the New South Wales executive to the injured. Further, the acute moral gratified that no one thought that fact was provide information to parliament; giving dilemmas of cases of ‘wrongful birth’ and worthy of comment. However, as Gough finality to the Chelmsford Hospital affair; ‘wrongful death’ have been resolved for Whitlam told him at the time: ‘Until determining principles of when a criminal purposes of Australian common law. recently nobody with your name could proceeding has miscarried because of have been appointed to that job.’ The story is filled out by references to the incompetence of counsel; accepting Murray Gleeson’s speeches. No one has would have had in mind the battered wife syndrome principle; ever articulated more forcefully or more the election of Philip Lynch as deputy determining appeals in such publicly effectively the social significance of the leader of the Liberal Party in 1973, the significant criminal trials as the Jeanine roles played by the profession and by first Catholic to hold such senior office Balding murder, the Ivan Milat and the judiciary, in maintaining the rule in that party, regarded as remarkable at Ananda Marga cases. of law and judicial independence. In the time. One only has to take a cursory The New South Wales case that gives addition, the book reflects the demands look at the Abbott Cabinet to realise how me most grief is the decision in which of leadership, particularly on issues much things have changed. the New South Wales Court of Appeal which engaged public interest, such as This was one of the great transitions in allowed Channel 9 to gazump the ABC the backlog of common law cases in the Australian life. For over a century the and take away its hitherto traditional New South Wales Supreme Court, the schism between Catholics and Protestants broadcast of the Commonwealth Games. suicide of David Yeldham, the judgment was the basic division of Australian This marked the beginning of the end of writing paralysis of Vince Bruce and the society – in politics, commerce, class, the ABC’s financial capacity to compete

Bar News | Winter 2014 | 87 BOOK REVIEWS

education, marriage and every form of duo Flanders and Swann. It is not the peacefully dissolving tension. social intercourse. When Murray Gleeson one I remember –The Hippopotamus For a person steeped in the principles of graduated most of the significant law Song with its glorious refrain: ‘Mud, mud the common law, as Murray Gleeson was firms in Sydney had either never had glorious mud’. The song was entitled and is, his life in the law as an advocate a Catholic partner or had never had a Misalliance about two kinds of creeper – and as a judge is, appropriately, analogous Protestant partner. It was no accident the honeysuckle, which spirals clockwise; to the development of the common law, that he found articles at Murphy and and the bindweed, which spirals as manifest in the sequence of cases that Maloney. I presume Freehill, Hollingdale anticlockwise. Growing on either side of a constitutes the narrative structure of this and Page had a preference for Riverview door, according to the songwriter, the two biography. boys at the time. kinds of creepers wanted to meet and get married. However, As the great American Judge Learned Nothing better reflects this social division Hand put it, in his review of Benjamin than the fact that the police commissioner To the Honeysuckle’s parents it came as Cardozo’s book The Nature of the Judicial of New South Wales had long been a shock, Process: alternatively a Catholic and a Mason, ‘The Bindweeds,’ they cried, ‘are inferior a practice that continued until the late The … structure of the common law stock!’ 70s. Unlike the office of the governor, … stands as a monument slowly premier or chief justice, that of police They’re uncultivated, of breeding bereft; raised, like a coral reef, from the minute accretions of past individuals, commissioner was much too important to We twine to the right and they twine to of whom each built on the relics allow either group to monopolise it. the left. which his predecessors left, and in his turn left a foundation upon which This all-pervasive, century-old division The class-based distinction is clear in this his successors might work.1 disappeared within a decade or two, passage. However, there is also a political without conscious effort and without message. Indeed class and politics were Murray Gleeson’s life and work – in a trace. It was a definitive transition of closely inter-twined throughout the the words of Judge Learned Hand, the same general character that occurred Catholic/Protestant division era. When who shared Murray’s philosophy of in the middle of the nineteenth century Murray Gleeson came to the Sydney Bar, judicial restraint – is such a ‘slowly raised when the previous tectonic division his religion was a fundamental aspect monument’ built on the work of his of Australian society – whether or not of his career prospects. By the time he predecessors and he has ‘left a foundation you had been a convict or a descendant became chief justice of New South Wales upon which his successors might work.’ of convicts – just dissolved. Nothing it was just irrelevant. indicates the Australian capacity for Both the monument and the foundation tolerance better than such peaceful, In most nations in the world, divisions of are wondrous to behold. unremarked abolition of long-standing this character fester for centuries. To the social conflict. outsider they often appear as inane as the Endnotes conflict triggered in Lilliput, as Gulliver 1. Book Review 35 Harv. L. Rev. [479, 479 (1922)] This schism is reflected in the song which, recounts, between those who believe according to Pelly, Murray Gleeson led boiled eggs should be opened at the fat the family in singing on the drive from end and those committed to opening at Pymble to visit his mother in Wingham. the thin end. Murray’s career personifies The song was by the English comedy the extraordinary Australian capacity for

88 | Bar News | Winter 2014 | Key Issues in Judicial Review

By Neil Williams (ed) | The Federation Press | 2014

courts to grant relief for jurisdictional Stephen Lloyd SC and Houda Younan error in respect of decisions made under have authored an essay on partial state enactments. invalidity of both legislative instruments and, significantly, administrative The Hon John Basten’s essay on judicial instruments and decisions. They examine review of executive action considers the basic principles in relation to reading the impact of the High Court’s seminal down legislative instruments, considering decision in Minister for Immigration cases which have applied principles of and Citizenship v Li [2013] HCA 18 distributive reading down, then they and how that decision contributed to consider related principles of construction the development in the law of the issues before examining severance in relation to of rationality, reasons and reasoning and administrative instruments and decisions. procedural fairness. The essay on evidence in public law The concept of satisfaction as a cases by Neil Williams SC and Alan jurisdictional fact is examined by James Shearer will interest administrative law Hutton in view of the High Court’s practitioners, as it provides a practical decision in Minister for Immigration and thorough consideration of issues and Citizenship v SZMDS (2010) 240 associated with the admissibility This book comprises a collection of essays CLR 611. Hutton’s essay examines the of extrinsic evidence, starting from predominantly from members of the New implications of treating a decision-maker’s preliminary evidence gathering, and South Wales Bar, as well as from judges state of satisfaction as a jurisdictional considering the admissibility of various and one from Peter Quiggan PSM, the fact to be determined by the court, and types of evidence according to the ground first parliamentary counsel of the Office highlights some of the limitations upon of review of the decision under challenge. of Parliamentary Counsel. There are 13 such an approach. essays in total. While one may be forgiven In an essay entitled ‘Nothing Like Theresa Baw has examined another aspect for thinking from the title of the work the Curate’s Egg’, the Hon Alan of SZMDS: the availability of illogicality that it is a text or case book on judicial Robertson has examined the 15 main or irrationality as a stand-alone ground review, in fact it covers a variety of topics recommendations of the Administrative of judicial review; and she argues that all of which bear upon and are important Review Council’s Report Federal Judicial the High Court’s decision in Li has in a consideration of judicial review. Review in Australia published by the made unreasonableness a more accessible Administrative Review Council in The book commences with reflections ground of review which in turn has September 2012. Justice Robertson’s on the role of courts in public law by the influenced the nature of the illogicality or review of the recommendations is Hon PA Keane. It is a helpful starting irrationality ground of review. thoughtful and raises many questions point for the rest of the work in that it Integral to the process of judicial review for consideration in respect of them. reflects upon the nature and limits of is the task of statutory construction. The essay also examines the suggestion judicial power, integral to an exercise of The essay by Peter Quiggin PSM covers that the ADJR Act be repealed and the judicial review. Jeremy Kirk SC is the both statutory interpretation and consequences should such a proposal be author of a chapter on the concept of statute-drafting in a rare and interesting carried out. jurisdictional error which will assist and insight into both aspects of statutory interest administrative law practitioners The book also contains an essay by construction from a drafter’s perspective. and those with an academic interest in the Kristina Stern SC entitled ‘The Rationale The essay that follows Mr Quiggin’s is topic alike. Among other aspects of the for the Grant of Relief by Way of a comment on his paper by Justice Nye doctrine, the chapter examines privative Judicial Review and Potential Areas for Perram. This paper helpfully considers clauses; and the significance of Kirk v Future Development’ which examines some differences in approaches, between Industrial Court (NSW) (2010) 239 CLR these areas by reference to the English drafters on the one hand, and judges 531 in relation to the possible existence position. Geoffrey Kennett SC and and barristers on the other, to the task of of constitutional limits protecting the David Thomas have presented an analysis statutory interpretation. supervisory jurisdiction of state supreme of constitutional and administrative law

Bar News | Winter 2014 | 89 BOOK REVIEWS

aspects of tax, an area of fertile ground of the law in relation to this topic, the law more generally, will find this work an which will no doubt be of interest to both authors comment upon particular issues interesting and useful addition to their public law and tax practitioners. and trends in an impressive array of libraries. recent decisions, in environmental law The book concludes with an essay by Reviewed by Victoria Brigden specifically, and administrative law more Richard Lancaster SC and Stephen generally. Free on the relevancy grounds in environmental and administrative law. Barristers who practise in administrative Rather than setting out the fundamentals law, or who have an interest in public

Mutiny on the Bounty

White Star Publishers | 2006

Mutiny on the Bounty is a compilation of at court martial deposed that Christian First landfall thereafter was Restoration works by William Bligh and others. said to Bligh: ‘Hold your tongue and I’ll Island (named by Bligh for their not hurt you; …I have been in hell for restoration, it being also the anniversary Captain Bligh and the flora-laden HMS weeks past with you.’ of restoration of Charles II) off the New Bounty were returning to England from Holland (Queensland) coast (29 May Tahiti when, early on the morning of 29 It was reported that Bligh expected high 1789). The days spent off and on the land April 1789, one of the officers, Master’s standards of performance from his pupil of New Holland had been restorative. Mate Fletcher Christian, mutinied with (Christian), and humiliated Christian They had secured much needed fresh food most of the crew members. The captain publicly in pursuit of same. One mutineer and water. They showed a self protecting and 18 loyal members were set adrift in supported this by later, post court martial respect of the Aboriginal occupants, with a longboat, with minimal food, clothing evidence. Another expressed to the Bligh ensuring that his party kept well and essential supplies. contrary, also by post court evidence. distanced and alert. Another (a Bligh loyalist) evidenced (post Loyalty counted for nothing. Christian court martial) that Bligh did not ill-treat After arrival in Dutch territory, the Dutch had been a beneficiary of Bligh’s assistance Christian. All officers were obliged to convened an enquiry into the loss of the during his brief naval career. Three do their duty and Bligh had shown Bounty. No Dutch vessels or citizens were voyages with Bligh, the last at a time great professional care for Christian’s involved, but, just as piracy was (and is) when any voyage, anywhere in peacetime, development. regarded as a scourge for all seafaring was a treasured jewel. As Bligh’s star nations to address, so was mutiny. It was rose, so too did that of Christian. As All that was behind Bligh and Christian noted that four remaining on Bounty ‘… second in command, Christian was from early 29 April 1789. With compass, are deserving of mercy, being detained extended officers’ courtesies. The night quadrant and extraordinary seamanship against their inclinations’. Such must before mutiny he had been invited to and leadership, as well as the iron self have been based on the evidence of Bligh the captain’s table. The invitation was and imposed discipline of the crew, the and his loyalists, and is a tribute to the declined. It was later evidenced that ejected Bounty crew landed in West Timor integrity of the evidence. All four were Christian had been drinking until on 14 June 1789. One of his crew had acquitted at later court martial. midnight before the mutiny: grog for been tragically killed by native attack on courage. As Bligh was manhandled over the first and only landfall in the Tahitian Unfortunately, two of Bligh’s loyalists died the side, Christian (talking of past benefits Islands after their ejection. The senior of illness despite best Dutch efforts. from his friend) exclaimed ‘That – sailor had sacrificed himself to enable Captain Bligh landed back in England on Captain Bligh – is the thing; I am in hell, the others to escape an attack by hostile 2 January 1790. I am in hell.’ (Bligh’s own memory). A natives. Bligh loyalist witness, the ship’s carpenter,

90 | Bar News | Winter 2014 | The court martial names, followed by ‘were under arms at wife whilst awaiting court martial, hoping Of 25 mutineers, 10 were tried at court different times’. The court was thorough for ‘an equitable tribunal to plead’ his martial on 12 August 1792 before an in questioning, and was seeking to sieve innocence. He had apparently known admiral and 11 captains. out the principals in the first and second her before sailing on the Bounty. He had degree, from the mere observers, or left her with power of attorney over his Bligh himself had sailed by July 1792, unwilling actors. possessions. Following his pardon he and was not present. His statement, wrote to the press alluding to the abuse by A midshipman, probably in his mid teens dated 18 August 1789 and written while Bligh of Christian, and as to Christian’s during the mutiny, deposed as to events. in Timor, comprised the charge. It was ‘most worthy character’. a clinical, succinct narrative, deviating Asked by a prisoner ‘Do you remember to acknowledge the untimely death calling on me to assist to retake his One prisoner was found to have no case of the sailor in Tahiti, and concluding Majesty’s ship?’ to answer. He was not under arms and not assisting the mutineers. He assisted with thanks to Divine Providence. The Answer: I have a faint remembrance of a those ejected by putting equipment (incl captain’s statement named only Christian circumstance of that nature.’ as seizing him in his cabin (post court a tool box) into the longboat. He wept martial he did publicly name others). Court: Relate it. when the longboat pulled away and asked Thus it was the evidence of his loyalists A. It is so faint I can hardly remember it. that it be remembered he had no part in that led to findings of guilt, or to the mutiny. Court: Relate it. acquittals. A transcript of evidence was One of those convicted and condemned made and included in this book. And again later in the hapless junior to hang asked that the former (upon officer’s best attempts, there was a series The first witness was Bligh’s second his acquittal) be allowed to give of questions about ‘your opinion’ on in command in the longboat. A clear evidence for the latter. Denied. Judges whether particular Bounty members were account of his seizure and ejection into reconsidered after the latter found guilty being detained against their will. He the longboat. Questioned by the court, he and condemned to death. The court named two, who were later acquitted. showed remarkable balance and fairness concluded that it should have allowed The midshipman was later promoted to in his answers. If he did not know, he said the former to give evidence for the lieutenant and was aboard HMS Pandora. so. It was very much in the common law latter. Acquitted the latter. The latter way – including res gestae based hearsay, The incisiveness of the court calls to was extraordinarily fortunate, because conversations in the presence or hearing mind fictional court martial scenes. From evidence was given by one witness of of some of the accused, and opinion on the Hornblower series. From The Caine his being armed; two others did not what was meant by what was attested Mutiny. Contra, the laziness of the court attest that he was armed. Enough as having been said by the mutineers as depicted in Breaker Morant. for a retrospective reasonable doubt. (including Christian), and by Bligh. The versatility of the court’s process Another young midshipman was is noteworthy, revisiting a ruling on Then it was the turn of the prisoners to convicted on the evidence of his being procedure. question the witness. No prisoner was obviously closely associated with represented by counsel. Some asked, Christian on the mutiny morning; and The fourth acquitted was not under arms others didn’t. The evidence-in-chief and enjoying a joke with Christian. This and was observed to have assisted with in response to questions from the court was in the face of his own statement in readying the long boat. must have been intimidating in its matter evidence – impliedly, that he was detained The three convicted, condemned (no of factness and apparent honesty. The full by the mutineers. He was condemned to mercy commended), and hanged, were import of that momentous morning is hang but granted mercy and pardoned in all evidenced to be under arms. It was laid bare. November 1792. Perhaps the evidence attested that one of the three had jeered at that he had refused to drink (with fellow Six others of the Bligh loyalists also gave the longboat crew, taunting them to live mutineers) the rum ration ordered by evidence of that fateful morning. One, on meager daily rations. Another of the Christian saved him. The same prisoner in response to a question of the court three was observed to have accompanied had taken the extraordinary (if not brazen ‘Who were…under arms?’ gave 17 (whilst armed) Christian down below and astonishing) step of writing to Bligh’s en route to seizing Bligh. The third was

Bar News | Winter 2014 | 91 BOOK REVIEWS

observed at the helm of Bounty after Bligh was broken up in 1790. Settlement was admitted in his journal to standing guard was seized, to arm himself upon seeing established and cultivation pursued. over Captain Bligh, despite his initial Bligh under arrest, and to be standing A killing spree by native men left four rejection of the mutiny. He was the only close guard over Bligh. mutineers only alive. One later suicided mutineer to die of natural causes, happy under the effects of newly distilled liquor. in the South Pacific. The final three witnesses were Captain One was executed by his fellow mutineers Edwards (of HMS Pandora) and two of Telling, and ironic, words were recorded for behaviour (interfering with a native his lieutenants, deposing to the arrests of by an anonymous writer in this book. woman contrary to her native husband’s the mutineers. The first to surrender did ‘O happy people…in your sequestered preference) that threatened the harmony so before Pandora anchored in Tahitian state…May…no hoary proficient necessary for survival of the settlement. waters. He was one of the acquitted. in swinish sensuality rob you of that Climbing on board a moving vessel is One of the two Pitcairn survivors died innocence and simplicity which it is cooperative, and it was deposed that he of natural causes, leaving one survivor as peculiarly your present lot to enjoy!’ was ready to give the arresting party ‘any patriach of several women and children. We now know that Pitcairn males information’. Even in those days, an early Population circa 35 in1810. The degenerated into sexual predators. confession helped. community was supported by its own Fourteen of the Bounty crew were agriculture. Post court martial, Edward Christian located in Tahiti and removed by HMS (brother of Fletcher Christian) consulted He was alive in 1814 when a British Pandora in 1791. Four were drowned a senior barrister. He then conducted his warship visited. He divulged his identity when Pandora sunk off the Queensland own enquiry as to his infamous brother’s as a Bounty mutineer, but gave a false coast on 29 August 1791. There was conduct, and mounted a determined name (Adams). He was not arrested. no requirement to take prisoners to the public relations campaign to restore The captain described him as an elderly nearest police station. They were on board Fletcher’s name. He published his enquiry man (in fact he was in his late 40s), of during a three month search for Bounty and Captain Bligh published a reply. exemplary conduct in leading the island prior to the ill-fated return voyage. Thirty- Much of the post court martial evidence community, which spoke English and one of Pandora’s crew also drowned. It referred to above emerged during this practised the Christian faith. He was was the 10 alleged mutineer survivors enquiry and post enquiry period. extraordinarily fortunate that the British who eventually faced court martial. captain was most impressed by the What of those who were not tried? Of the remaining two Bounty crew, one community and its governance. A fine In 1810 an American vessel arrived was killed in Tahiti by a fellow mutineer example of a public officer with the power at Pitcairn Island. They found the (who had been made a chief) who was of arrest exercising his discretion and sole surviving member of the Bounty then himself killed by natives. leaving the suspect a free man. Nor did mutineers (of the party which stayed on the captain proceed by way of summons. Was Bligh excessively strict? Recent the Bounty after it left Tahiti for Pitcairn). Moreover, the community was supplied literature suggests that Captain Cook was The American captain, and a later with some comforts from the Royal Navy stricter. Interestingly, Bligh had served visiting Royal Navy captain, and others, vessel prior to its departure. Adams’s under Cook. The key, on balance, is the reported differently. What the accounts gravestone marks his death on Pitcairn lack of character of Fletcher Christian. have in common is that Christian and Island. eight fellow mutineers had left Tahiti Reviewed by Christopher Ryan with native wives, and native men. On Had he been arrested and court martialed arriving at Pitcairn Island, HMS Bounty he may well have been hanged. He

92 | Bar News | Winter 2014 | The Law Council of Australia: The People, the Profession and the Institutions By Gordon Hughes | Halstead Press | 2013

...the work goes beyond a strict review of the structure and work of the Law Council itself to outline the history and development of many aspects of the modern legal profession in Australia.

time when an enhanced sense of national internationalisation of legal practice. identity arising from the First World Issues such as recruitment and retention War and an enhanced social conscience of lawyers and equal opportunity in the following the Great Depression had just workplace are also briefly analysed. come into existence. The book contains a number of historical As one might expect, the book outlines points of interest, identifying the earliest the formation and structure of the lawyers in Australia, including the first Law Council, its contribution to convict transportees to Australia who practice regulation (for example in were qualified legal practitioners, the This book traces the history and establishing uniform admission rules and first free legal practitioners, the first operations of the Law Council of requirements and uniform principles lawyers to fully complete legal training in Australia from its inception in 1933 for assessing overseas qualifications) Australia, the first native-born Australian to the present day in commendable and its contribution to shaping law and admitted to practice as a solicitor and detail, against the broader backdrop of policy in Australia. The work and major the first practitioners to be admitted as Australian legal and political history. achievements of each ‘section’ of the Law independent barristers. Council is examined, and its response to Dr Hughes describes the social and The author is certainly well-qualified to broader political issues, for example, the political landscape of Australia in the write this work. In addition to being a council’s opposition to the ‘intervention’ early 1930s, arguing that in a climate of partner of Ashurst Australia, Dr Hughes by the federal government in Northern political upheaval (with every government was president of the Law Institute of Territory Aboriginal communities in in Australia changing between 1931 Victoria from 1992 to 1993, president 2007. and 1934) and high unemployment in of the Law Council of Australia in 1999, the aftermath of the Great Depression, However, the work goes beyond a president of LAWASIA from 2003 to the legal profession ‘demonstrated strict review of the structure and work 2005, and has been the chair of the a reassuring degree of stability and of the Law Council itself to outline International Law Section of the Law leadership’ (at p.26). By 1933 there was the history and development of many Council of Australia since 2008. a stable judiciary, three federal courts, a aspects of the modern legal profession This book will undoubtedly appeal to Supreme Court in each state, four long- in Australia. The history of the federal those with an interest in the development established law schools, a number of law courts and tribunals, each of Australia’s and work of the Law Council of Australia firms in the capital cities which were the largest law firms, main law schools and and its constituent bodies, but should forebears of today’s large firms, and a the development of the independent bar have broader appeal to anyone with well-established independent bar in each in each state and territory are outlined. an interest in the evolution of, and of Sydney, Melbourne and Brisbane. By The book also examines developments personalities within, the Australian legal 1927, it had been observed that the legal which have contributed to change in profession over the twentieth and twenty- profession was one of the few professions the profession over time including first centuries. or businesses in Australia without a the provision of legal aid, community federal organisation of some kind. Dr legal centre services and pro bono Reviewed by Victoria Brigden Hughes explains that it was felt that such representation, the introduction of an association would promote a united corporate in-house counsel, the advent profession throughout Australia, at a of alternative dispute resolution and the

Bar News | Winter 2014 | 93 BOOK REVIEWS

Hayes & Eburn Criminal Law and Procedure in NSW, 4th edition

By Michael Eburn et al | LexisNexis | 2013

Chapter 2 deals with murder and the new Bail Act 2013. There is also the includes an interesting extract from law relevant to procedure in a criminal the Model Criminal Code Officers trial, as well as summary matters, some Committee about murder and of the basic law of sentencing; and manslaughter. Chapters 3 and 4 deal with appeals and some of the fundamental the complex law of manslaughter and laws of evidence most relied upon in any chapter 5 is headed ‘Non fatal offences criminal matter, i.e., the admissibility of against the person’ which essentially confessions/admissions and the exclusion means the law of assault including of evidence under Part 3.11 of the grievous bodily harm. Evidence Act. The book concludes with an interesting discussion on the right to Chapter 6 deals with sexual offences, silence and of course the new s 89A of including a separate section on child the Evidence Act. sexual assault and the special evidential and procedural rules applying in The commentary is interesting sexual assault trials. It is good to see throughout and follows a logical order, a separate chapter on this area of law which is easy to read. There are also as it is becoming more and more extracts from cases as examples of the law, The th4 edition of Hayes and Eburn complex for criminal law practitioners. both the standard cases and examples of Criminal Law and Procedure in NSW Chapter 7 deals with stealing and recent authority, which is most useful. In is a well set out, helpful and up-to-date other property offences; and Chapter my view most of the basic issues relevant textbook on criminal law. It contains the 8 deals with the important concepts of to the practice of criminal law are usual and mandatory topics that cover insanity, voluntariness, automatism and included, especially in relation to NSW this area of law as well as a few chapters intoxication. crime. Although the book is obviously a textbook, with discussion questions at on criminal procedure and evidence. Chapter 9 deals with some of the the end of each chapter suitable for the defences relied upon in criminal law, Chapter 1 sets out the general principles teaching of law, this book is still useful i.e., duress, necessity and self-defence; of criminal law, including the important for criminal law practitioners. issue of elements of a crime. (I note that and chapter 10 deals with the ever it is good to see that the authors have difficult law of attempt, conspiracy and I recommend this book as a useful included the Commonwealth criminal complicity, including the distinctions addition to your criminal law library. between the various forms of accessorial law on the elements of a Commonwealth Reviewed by Caroline Dobraszczyk offence). There is also an interesting liability. discussion on the lack of a Bill of Rights Chapters 11 and 12 deal with criminal and the European Convention on procedure and evidence, and this includes Human Rights, as well as the issue of police powers of investigation, arrest and ‘discretion’. the law of bail, including commentary on

94 | Bar News | Winter 2014 | Waller & Williams Criminal Law Text and Cases, 12th edition

By Thalia Anthony et al | LexisNexis | 2013

different mental elements and physical including the law of conspiracy. acts needed), who can commit a crime, Chapters 12 – 15 deal with the most and an introduction to punishment, common defences relied upon in criminal discretion and appeals among other law including self defence, necessity, things. Chapter 2 deals with assault duress, mistake (and strict liability), and related offences such as stalking and mental impairment and intoxication. affray, as well as an interesting discussion about ritual circumcision and the limits As stated above, in my view the textbook of consent in contact sports and some is very comprehensive, covering all of surgery. the main areas associated with criminal law, although mainly concentrating on Chapter 3 deals with sexual offences, the state criminal laws of NSW and including child sexual assault and Victoria. The actual commentary is well sexual servitude. Chapter 4 deals with written, easy to read and comprehensive. murder and chapters 5 and 6 deal with Most of the case law extracts are the manslaughter, including an interesting standard authorities and there are some discussion on industrial manslaughter. English decisions as well, but this is Chapters 7 and 8 deal with property understandable given that the primary This is a very comprehensive criminal law offences in NSW and Victoria; and purpose of the book is for law students textbook, in excess of 1,000 pages, mainly chapter 9 discusses drug offences, dealing and therefore for teaching law. dealing with criminal law as it applies in also with the relevant Commonwealth NSW and Victoria. legislation in relation to the importation This textbook would be useful and of narcotics. Chapters 10 and 11 then valuable to any criminal law practitioner. Chapter 1 is headed ‘Foundations’ and deal with the law of attempting to deals with important topics such as ‘What commit an offence and the law in relation is a crime’, the sources of the criminal law, Reviewed by Caroline Dobraszczyk to the extension of criminal liability how a crime can be committed (i.e., the

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Bar News | Winter 2014 | 95