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No. 143 AUTUMN 2008 Re-opening of Court 4 WELCOMES AND FAREWELLS OPENING OF THE LEGAL YEAR BUILDING CASES – A NEW APPROACH THE SECOND BITE OF THE CHERRY ISSN 0159-3285 WOMEN AT THE BAR PIZER’S THIRD EDITION LAUNCHED ESSOIGN CLUB CHRISTMAS PARTY WIGS AND GOWNS REGATTA VICTORIAN BAR NEWS Autumn 2008 1 VICTORIAN BAR COUNCIL VICTORIAN BAR NEWS *Executive Committee Clerks Chairs of Standing Committees Editors A *Peter Riordan SC, M.W. (Chairman) of the Bar Gerard Nash QC, Paul Elliott QC D *Paul Lacava SC, P.J. (Senior Vice-Chairman) Applications Review Committee and Judy Benson G *John Digby QC., P.G. (Junior Vice-Chairman) G Digby QC, G.J. Editorial Board G Michael J Colbran QC, (Honorary Treasurer) Charitable and Sporting Donations Julian Burnside QC, Graeme Thompson D Kate Anderson (Assistant Honorary Treasurer) Committee D *Fajgenbaum QC, J.I. D Riordan SC, P.J. Editorial Secretary G Digby QC, G.J. John Stevens Conciliators for Sexual Harassment H Tobin SC, T. and Vilification Editorial Committee D McLeod SC, F.M. B Curtain QC, D.E. John Kaufman QC, Ian Freckelton SC, H McGarvie SC, R. William F. Gillies, Carolyn Sparke, W *Neal SC, D.J. Council Committee Georgina Schoff, Paul Duggan, Richard Brear, G Judd, K.E. G Colbran QC, M.J. Carmela Ben-Simon, Catherine Button, D Moshinsky, M.K. Editorial Committee for In Brief and Jennifer Digby, Noam Shifrin and L Hannebery, P.J. Website News Section Peter Lithgow (Book Reviews) R Fairfield, C.G. D McLeod SC, Ms FM D *Shaw, C.E. Equal Opportunity Committee Design/production G Anderson, K.J.D. D McLeod SC, Ms FM Ron Hampton D Burns, A.G. David Johns (Photography) Ethics Committee R Harrison, D.C. Published by The Victorian Bar Inc. G Lacava SC, P.G. B Sharpe, M.R. Owen Dixon Chambers G *Penny A Neskovcin (Honorary Secretary) Human Rights Committee 205 William Street, Melbourne 3000. B * Simon T Pitt (Assistant Honorary Secretary) D Fajgenbaum QC, J.I. Registration No. A 0034304 S Indigenous Lawyers Committee Ethics Committee G Golvan SC, C.D. Opinons expressed are not necessarily D Davies SC, J. (Chairman) Legal Assistance Committee those of the Bar Council or the Bar or C Meagher ED, QC, D.R. of any person other than the author. G&J Willee RFD, QC, P.A. A Macaw QC, R.C. G&J Santamaria QC, J.G. Legal Education and Training Continuing Printed by Impact Printing D Titshall QC, M.R. Education Committee 69 –79 Fallon Street, Brunswick Vic. 3056 F Gobbo QC, J.H. D Ruskin QC, J. This publication may be cited as A Manly SC, R.J. Legal Education and Training Readers’ (2007) 142 Vic B.N. H McGarvie SC, R. Course Committee G&J Shwartz, A. B Hill QC, I.D. Advertising P Williams, I.S. Mal de Silva New Barristers’ Standing Committee D Kirton, C.E. The Victorian Bar Inc. B Pitt, S.T. F Shiff, P.L. 205 William Street D Moshinsky, M.K. Past Practising Chairmen’s Committee Melbourne 3000 D Shaw, C.E. F Costigan QC, F.X. Telephone: (03) 9225 8681 Professional Indemnity Insurance Committee H Mc Garvie SC, R.W. Professional Standards Education Committee G&J Willee RFD, QC, P.A. Victorian Bar Dispute Resolution Committee C Maxted, R.G. 2 VICTORIAN BAR NEWS Autumn 2008 ISSN 0159-3285 No. 143 AUTUMN 2008 EDITOR’S BACKSHEET THE OPENING OF THE LEGAL YEAR 78 Raising the Bar 4 Rights of victims 24 St Paul’s Anglican Cathedral 82 Restorative justice 29 St Patrick’s Roman Catholic Cathedral 83 Farewell dinner, Captain Paul Willee CHAIRMAN’S CUPBOARD 34 Temple Beth Israel 85 The strange case of Andrea Yates and Dr Park Dietz 6 Change is constant… 37 Buddhist Ceremony 86 Unveiling of Douglas Ian Menzies portrait change…is inevitable 39 ICJ Opening of the Legal Year 41 A time for renewal 87 The Essoign Club Christmas party ATTORNEY-GENERAL’S COLUMN 42 Legal Laneway Breakfast SPORT 8 Justice Statement II 88 Sir Edmund Herring Trophy NEWS AND VIEWS WELCOMES 89 Wigs and Gowns Regatta 44 Judgment Day 91 The Bar retains sodden tennis trophies 9 Justice James Judd 44 Pizer’s third edition launched 11 Judge Katherine Bourke 45 Court 4 in the Supreme Court re-opens LAWYER’S BOOKSHELF 13 Judge Philip Misso 48 Building cases – a new approach 93 Book reviews 51 The second bite at the cherry FAREWELLS 56 Verbatim 15 Justice Alex Chernov 57 Does the Bar matter? 17 Justice Bernard Teague 62 Humbugging with the mob 20 Justice Joseph Kay 66 A bit about words 67 Farewell Ross Macaw QC OBITUARIES 68 Duty Barristers Scheme launch 22 David Roy Cross 72 New silks ceremonies Cover: The restored Court 4 in the Supreme 23 David Maclean SC 73 Women at the Bar Court, which re-opened on 7 April Welcome: Justice Welcome: Judge Welcome: Judge Farewell: Justice Opening of the Legal Year James Judd Katherine Bourke Philip Misso Alex Chernov New silks ceremonies Raising the bar Wigs and Gowns Regatta Essoign Club Christmas Party VICTORIAN BAR NEWS Autumn 2008 3 EDITORS’ BACKSHEET Rights of victims The ‘cab rank rule’ and the existence of Those who talk about sentences being Legal Aid – and in former times the role too lenient are persons who on the whole of the Public Solicitor – have ensured that know little of prisons or of how they are persons charged with criminal offences run. More importantly they do not know have the opportunity of being legally – or worse still do not care – that prisons represented. Often the result of such are not safe. representation causes unhappiness to the It is one thing to argue for increased victims or, in the case of alleged homicide, periods of confinement, which consists to the relatives of the deceased victim. merely of deprivation of liberty. It is an- The unhappiness is caused sometimes other thing to argue for increased periods by the acquittal of a person of whose guilt of confinement in conditions which pro- the jury has not been satisfied beyond vide no adequate safety against assault, reasonable doubt but, more commonly, rape and even murder. by the imposition of a sentence which Those who argue for increased prison the victim (or the relatives of the victim) sentences should consider how much consider is inadequate. process it is the rights of the person being money they want the state to spend on The use of victim impact statements to sentenced – having proper regard to the our prisons. If sentences are increased aid in the sentencing process has become protection of the community – that are in by, say 20%, it automatically increases the commonplace. The views of the victim issue. prison population by 20%. That requires or of the victim’s relatives are commonly Victims understandably want retribu- an increase in prison accommodation, sought by the media after sentencing has tion and in few cases will they see the ret- and should require an increase in prison occurred, and, sometimes, even after ribution imposed by the state as being staff, of 20%. acquittal. adequate. However, the rights of victims Our prisons are already inadequately In some jurisdictions mandatory sen- do not include a right to retribution. When staffed (or alternatively the quality of the tencing has been imposed to ensure that we come to sentencing we are dealing not staff is inadequate); they are unsafe – espe- ‘soft’ judges will not be able to impose what with the rights of the victim, but with the cially for the young and vulnerable. the community may regard as inadequate rights of the person being sentenced. We Few of those who seek harsher penalties sentences. Even in Victoria, which in this are concerned with a decision which will are aware of the dilemma that confronts respect is not the most benighted jurisdic- deprive him or her of many of his or her the County Court Judge faced with the tion in the country, there has been talk of rights. prospect of sentencing a young man or setting standards which will ensure that To talk of the rights of criminals involves woman to prison. Judges know our prisons the ‘tariff’ in respect of offences of violence a misconception. There is no ‘criminal are not safe; that prison inmates who are is increased. class’ to which specific rights or disabilities young and vulnerable (and even those All of this agitation is concerned with, attach. All members of the community are who are not so young) are liable to be or stems from, a concern with the rights potentially criminals. All members of the raped by older and more vicious criminals of victims. All members of the community community have rights as such. To quote who in every sense of the term cohabit have rights. Victims are members of the Robert Richter QC: ‘It is nonsense for with them in prison. community and as such they do have people to talk about the rights of criminals. There have been many complaints about rights. But those rights are not relevant to Criminals have no rights. Citizens have the dangers of unmanned railway stations the sentencing process. In the sentencing rights.’ and of railway trains without guards or 4 VICTORIAN BAR NEWS Autumn 2008 conductors. No one complains, however, where the State could guarantee his or her GAY WHALES of inadequate supervision of our prisons, safety, judges might then be less reluctant to even though they are much less safe than impose immediate prison sentences and The word ‘gay’ in its popular sense today our unmanned railway stations.