BOOK REVIEWS Murray Gleeson The Smiler By Michael Pelly | The Federation Press | 2014 On 27 May 2014 the Hon James Spigelman AC QC delivered the following speech at the launch of Michael Pelly’s book Murray Gleeson 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 Sydney Bar: Japanese audience will wait breathlessly Garfield Barwick, 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, Maurice Byers, Laurence Street, tribute to that nation’s cultural unity that Michael Kirby, Michael McHugh, Roddy every member of the audience knows it is Meagher, Tom Hughes, Bob Ellicott, coming. If executed perfectly, The Look Mary Gaudron, 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 New South Wales and, then, he had dealt with objections to evidence. adverbs and abjure my propensity for throughout Australia. 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 High Court 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 Gough Whitlam 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.