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VICTORIAN BAR NEWS ISSUE 161 WINTER 2017 VICTORIAN A fiery start to the Bar BAR Cliff Pannam Spies like us NEWS Stephen Charles

Remembering Ronald Ryan

Masterpiece Bill Henson work unveiled WINTER 2017

161 At the Glasshouse: The Bar dinner photographs

ISSUE 161 WINTER 2017 VICTORIAN BAR NEWS

Editorial 44 Milky Way Dreaming KRISTINE HANSCOMBE QC Not the 24 hour news cycle 3 THE EDITORS 46 Innovate, regulate: Michael McGarvie, Victorian Legal Letters to the editors 5 Services Commissioner President’s report 6 GEORGINA COSTELLO AND JESSE RUDD JENNIFER BATROUNEY QC 20 Around town Bar Lore 2017 Victorian Bar Dinner 8 52 A Fiery start at the Bar — Indigenous Justice 14 some fifty years ago Committee RAP event DR CLIFF PANNAM QC SALLY BODMAN 58 Remembering Ronald Ryan George Hampel AM QC 16 KERRI RYAN ELIZABETH BRIMER 62 Where there’s a will, we’ll go a Henson portrait of the Hon 20 Waltzing Matilda: Serendipity Ken Hayne AC QC in chambers SIOBHAN RYAN W. BENJAMIN LINDNER Supreme Court of 24 v Australian Cricket Society 8 Back of the Lift THE HON DAVID HARPER AM 66 Adjourned Sine Die Bar, Bench and Solicitors golf day 27 67 Silence all stand CAROLINE PATTERSON 46 68 Vale News and Views 76 Gonged Volunteering at the Capital 28 77 Victorian Bar Readers Post-Conviction Project of Louisiana Boilerplate NATALIE HICKEY 78 A bit about words JULIAN BURNSIDE QC The David Combe affair 31 THE HON STEPHEN CHARLES AO QC 80 Off the Wall SIOBHÁN RYAN The Judicial College 38 82 Red Bag Blue Bag of Victoria master of its fate 83 The Australian Electoral VBN Commission and the itchy Direct questions and 40 pen philosophy leading questions THE HON PETER HEEREY AM QC ANDREW PALMER AND 58 84 Book Reviews THE HON GEORGE HAMPEL AM QC 88 Verbatim

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Editors: Georgina Schoff QC and Georgina Costello Victorian Bar News Editorial Committee: Georgina Schoff QC, Georgina Costello (Editors), Maree Norton, Annette Charak, Justin Wheelahan, (Deputy Editors) Catherine Pierce, Brad Barr, Jesse Rudd, Natalie Hickey, Justin Hooper and Georgie Coleman Contributors: (In alphabetical order) Jennifer Batrouney QC, Sally Bodman, Elizabeth Brimer, Julian Burnside AO QC, Mark Campbell, Stephen Charles AO QC, Georgina Costello, Mark Costello, AC QC, the Hon Justice Digby, Tim Dowling, Ray Gibson, George Hampel AM QC, Kristine Hanscombe QC, the Hon David Harper AM QC, Natalie Hickey, Paul Holdenson QC, the Hon Murray Kellam AO, Greg McNamara, Sophie McNamara, Andrew Palmer, Dr Cliff Pannam QC, Catherine Pierce, Jesse Rudd, Kerri Ryan, Siobhan Ryan, Hugh Selby, Georgina Schoff, Justin Wheelahan Not the 24 hour Editorial adviser: Peter Barrett Photo contributors: Neil Prieto, Peter Bongiorno and Michael Barritt news cycle Cover Photograh: Bill Henson Publisher: The Victorian Bar Inc., Level 5, GEORGINA SCHOFF & GEORGINA COSTELLO, EDITORS Chambers, 205 William Street, VIC 3000. Registration No. A ictorian Bar News, unlike , Facebook status updates 0034304 S. and the 24 hour news cycle, takes some time to arrive, The publication of Victorian Bar News may hitting your chambers about each six months or so, on be cited as (2016) 159 Vic B.N. Opinions something like a 4,500 hour news cycle. expressed are not necessarily those of the Bar Council or the Bar or of any person other than With varying distance between the news and events it the author. covers, Bar News offers the benefit of hindsight as well as Advertising: describing the march of progress. We thank you for your patience for this All enquiries including request for advertising (err… overdue… sorry) issue, which will be the final one from us as editors. rates to be sent to: Bar News relies entirely upon the participation of its members for Sally Bodman content, with occasional contributions from those outside the Bar. For The Victorian Bar Inc. Vsome of our authors writing is clearly a vocation (quite apart from the Level 5, Owen Dixon Chambers writing they do as barristers or judges) and the copy arrives in a steady 205 William Street, Melbourne VIC 3000 stream. They include Julian Burnside, Stephen Charles, Peter Heerey, Cliff Tel: (03) 9225 7909 Pannam, the late James Merralls, Ed Heerey and Siobhan Ryan. In many Email: [email protected] respects their contributions have been the backbone of Bar News under Illustrations, design and production: Guy our editorship and we thank them for that. Others write when they are Shield and The Slattery Media Group; www. inspired by a particular topic or event or because we have coerced them to slatterymedia.com do so. Writing for publication is never an easy task, and we hope that those Contributions: Victorian Bar News welcomes who have provided contributions have found the process a rewarding one. contributions to [email protected] So much goes on in the life of the Bar and as we have said before, Bar News is an important record of our collective pursuits. We consider it particularly important to record the appointments, retirements and deaths of our members. As the Bar grows in size, this task has become increasingly challenging. Long ago, Cicero said that eloquence is the lamp of reason. To write eloquently is one of the skills that we all hope to acquire as barristers.

VBN 3 Kids INWigs Bar News offers each of you an opportunity to hone those skills and to focus them on something other than a legal argument. We encourage you to continue to support this wonderful publication editorial editorial by contributing your written words. In addition to our contributors, we extend our thanks to the Bar News committee members, particularly our past and present Deputy Editors Anthony Strahan, Annette Charak, Justin Whelehan and Maree Norton, to Natalie Hickey who might be considered to be our “staff writer” and to our reliably excellent sub-editors: Jesse Rudd and Brad Barr. We thank the staff of the Bar Office, including Denise Bennett who now assists us remotely from Byron Bay and Sarah Fregon. We also thank past and present Presidents who have (for the most part) left us to our own devices. We must also thank Guy Shield of the Slattery Media Group, who has been responsible for the design and layout of each of the issues that we have edited. His wonderful illustrations have lent the Bar News under our editorship a unique character. One thing that we will particularly miss is choosing the pictures of our colleagues for Around Town. Barristers can be a glamorous lot (when we try) and we think that some of our spreads have rivalled those of Vanity Fair. In this issue, for instance, the photographs of the Bar Dinner fairly dazzle the eye, as do the photographs of the event at which Bill Henson’s photographic portrait of the Hon AC QC was unveiled. The portrait itself, which we have reproduced on the cover of this issue, is we think, a masterpiece. We wish you all happy reading now and well into the future. Clara Plunkett (James Plunkett’s daughter)

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The dream of a life as a barrister

y mother One colleague who has sat the exam something I want shouldn’t be causing asked me a number of times recently remarked: me so much heartache when I don’t when I was 13 achieve it”. “Of all the adversities I have overcome, what I wanted enrolling in and undertaking two Collectively it is accepted that the exam to be when I grew up. I told her that I degrees with two children under five is here to stay, but the delicious irony was going to be a barrister. and no partner, the exam and my of the whole process is that those who MUnfortunately life got in the way and inability to reach the 75 marks has been introduced the exam concept and are it wasn’t until 2006, after a career in the most difficult adversity I have had involved in setting, marking, discussing Government, that I took the plunge and to face. Each time as a single mother and analysing the exam, generally started a law degree, intending to honour stumping up the $500 to sit the exam, didn’t have to achieve the magical 75. the intention that I had indicated to my to say nothing of the $6,000 payable a Other than publication of sample mum many years before. week after being offered a place on the answers seven weeks or so after a three At that stage entry to the readers’ readers’ course. And this is in a climate hour exam, the transparency afforded course was through the waiting list of encouraging more women to come to to examinees in exchange for the $500 that the overwhelming majority the Bar”. odd dollars is non-existent. of readers of this publication will All those who sit the exam, remember. Much to my dismay and Another after the last exam results told essentially put their lives on hold. disappointment shortly before the me tearfully: The need to study, memorise and completion of my degree, the readers’ “I’ve wanted to be a barrister since I understand each of the areas. course exam was introduced. was ten years old and can’t imagine Procedure, evidence and ethics It is said that one should not have doing anything else, but I’m now at a becomes all consuming, to the point regrets, but here I was full of regret at point where I feel so dejected and that where nothing else matters. If we not starting my degree a couple of years are lucky enough to have a job, the earlier, at not cramming a few extra obvious choice is to take as much subjects into a semester whilst working leave as possible, sacrificing all else full-time as a judge’s associate, and of for the dream. course, at allowing the practicalities of Then after the slog – we wait for mortgages, children and family the results. Either a positive or a to stand in the way of that long bad email arrives about four weeks held dream. after the exam. If it is the bad one, In 2014 I sat the exam those who have experienced it without much hope - just know the depths of despair that a warm-up I told myself. accompanies the news. I’m not Recently I had another go, sure that those who haven’t only to fall seven marks understand, and I wish that short of the “magical” they did. required 75. I am now Regrets – we’ve had in pretty good a few! company with Craig Newton those who got close, but not close enough.

Have your Say Write to the Editors at Victorian Bar News, Owen Dixon Chambers, 222 William Street, Melbourne, VIC 3000 or email [email protected]

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JENNIFER BATROUNEY

he mid-point of a year in the life of a The policy is designed to level the playing field for all Victorian Bar President is an interesting members of the Australian legal profession. Its ultimate time: a time to reflect on the outcomes aim is to see women briefed in at least 30% of all matters we have achieved and to measure them and accounting for 30% of the value of all brief fees by against the vision outlined in my first 2020. The Bar’s Diversity and Equality Committee, led by report at the beginning of my term. It is Michelle Quigley QC, has established a working group to also a time to plan for my remaining months in office and actively implement the policy at the Bar and promote its to ponder how this Bar Council can put in place a solid widespread adoption by members. foundation for the next one. The Bar launched its new Reconciliation Action So what was my vision for the Bar six months ago? I Plan in March and I am indebted to Tom Keely SC, Tspoke of my commitment to ensure that the Bar and its Abigail Burchill, Richard Wilson and the Indigenous members continue to thrive; that the Bar Council, working Justice Committee for their ongoing commitment to the collaboratively, support members to foster professional promotion of Indigenous Australians at the Bar. excellence and continued high performance; and that we The diversity at the Bar is nowhere better demonstrated seek out opportunities to highlight the distinctive skills than in our latest crop of readers who signed the role of our members. I looked to promote a collegiate Bar; a in May 2017. The dates of their admission to practice diverse Bar; a Bar supported by modern services, facilities range from one year ago to 28 years ago. They have come and resources. Above all, I spoke of the need to maintain to the Bar with legal experience as barristers in other a strong independent Bar playing a vital role in the justice jurisdictions, as solicitors, as government lawyers and as system of our State. ‘public interest’ lawyers. They have other professional Halfway through the year, I think we’re tracking backgrounds including as an army major, a managing pretty well. director of a meal delivery start-up in South Africa, a real Members of our Bar are leading the legal profession in estate agent, a financial analyst and an IT professional. in 2017. Victorian Bar members currently hold One was born in China, another in Germany. A number three of the most significant legal positions in the country. speak foreign languages including Indonesian, German, Stephen Donaghue QC was appointed Commonwealth Japanese and French. Our Bar is the richer for the Solicitor-General in December, Fiona McLeod SC is the diversity of its members and our connection to the President of the Law Council of Australia (LCA), and Will community is enhanced by the different paths our Alstergren QC heads up the Australian Bar Association. It members have taken to get here. is through representation at the most senior level that our The refurbishment of the first floor in Owen Dixon Bar continues to influence and drive legal policy reform. I East was a key achievement in this term and my thanks also note that Julian McMahon from our Bar is the current go to the hard-working teams at both BCL and the holder of the LCA President’s Medal in recognition of his Bar who brought this project to life. The new facilities outstanding pro bono work. I also congratulate Pat Zappia bring members together in meeting areas designed to QC and his team on the pro bono and duty barrister promote collegiality at the Bar, to allow us to engage with committee for their ongoing work to promote access to each other and to host members of the broader legal justice for all Victorians. community. I am proud of our new modern space and am As influencers in the legal profession, the Bar made happy to see so many of our members making use of it. a considered contribution to the recent Department While BCL has had their fair share of challenges around of Justice and Regulation’s Access to Justice Review. I the lift and communications services, Michael Wyles thank Chris Winneke QC and his team, including the QC and his team are to be congratulated for continuing Bar policy staff, for their hard work in this important to enhance our built environment by sourcing many area. The government’s response adopts almost all of new sets of chambers. I look forward to continuing to the 60 recommendations made and awards $34.7 million work with BCL to ensure that the Victorian Bar facilities in funding to support disadvantaged members of our continue to be the best of all the independent Bars in community in the legal system. Australia. Continuing the Bar’s commitment to achieving gender We launched the Peter O’Callaghan QC Gallery equality, we are proud this year to support and facilitate Foundation in June. The gallery has become an important the LCA national model gender equitable briefing policy. focal point both for members of the Bar and for the public

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In the second half of the year, we look to continuing our work in engaging with corporate clients and increasing direct touchpoints between the Bar and the community.

who walk through the Owen Dixon West foyer. It provides a visual tribute to the enormous contributions of the Bar’s champions and acts as a source of inspiration for future generations of barristers. The Foundation has been established to ensure that the Art and Collections Committee can continue to bring the stories of the Bar so beautifully and evocatively to life and will focus on funding the commission of future works to the gallery through donations and legacies from members and friends of the Bar. We are delighted and honoured that Justice has agreed to become the patron of the foundation. The Bar’s new website, launched in May, has been a major project for the Bar over the past twelve months and is the most significant upgrade of our digital platform in seven years. I am very grateful to Dr Matt Collins QC, our CEO, Sarah Bar office for their ongoing, unfailing her Honour’s term has been one Fregon, and the Bar’s project team support during the first half of my of innovation, leadership and for the extensive work they have presidency and I look forward to achievement. Her contribution to the put in to this project. The new continuing our collaboration over the administration of justice in this State website portrays a fresh, modern and coming months. will be celebrated and recognised approachable Bar and educates the In the second half of the year, by the legal profession at a dinner community about the role and work we look to continuing our work in on Saturday, 23 September and at a of barristers. It delivers enhanced engaging with corporate clients ceremonial sitting of the Supreme search and navigation functions to and increasing direct touchpoints Court on 27 September. streamline the accessibility of the Bar between the Bar and the community. We know that 2017 will continue for our external audience as well as I will attend the ABA Conference to bring change and we welcome providing a greater suite of on-line in July and use the opportunity to the challenges and new opportunities services for our members. further our connections with the UK ahead of us. I will continue to work I would like to thank my hard and Irish Bars. with Bar Council, Bar CEO Sarah working executive, Dr Matt Collins On 1 October, the Honourable Fregon and the Bar office staff QC, Wendy Harris QC and Dan Chief Justice Marilyn Warren to uphold the Bar as the fine Crennan QC, together with all AC will retire. As Australia’s first institution to which we are all members of the Bar Council and the female Supreme Court Chief Justice, privileged to belong.

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14 1. Kristen Walker QC, Susan Brennan SC, Jason Pizer QC 2. Peter Gray QC and the Hon Justice Bell AM 3. Peter Agardy, Alison Umbers and his Hon Judge Lyon 4. Associate Justice Simon Gardiner and Tim North QC 5. Erin Gardiner and the Hon Justice Redlich 6. Paul Glass and Ben Gibson 7. The Hon Justice Almond and Ross Macaw QC 8. Daniel Nguyen and Fiona Cameron 9. Emily Porter and Patrick Doyle 10. Dermot Connors, Shane Thomas, the Hon Justice Sloss and Michael Bearman 11. Tom Clarke, David Robertson QC and David Morgan 12. Melinda Richards SC, Julia Watson and the Hon Justice Tait 13. Dr Stephen Donoghue QC and Lisa Hannan 14. Brian Mason, Sergio Freire, Daniel Briggs and Nina Moncrief 15. Judge Samantha Marks and Aine Magee QC 16. Magistrate Donna Bakos and Kenneth Hayne AO QC 17. Melanie Szydzik, Claire Harris, Kathleen Foley and Fiona Forsyth 18. Simon Moglia, Trevor Wraight QC and Karen Argiropoulos 19. Sarala Fitzgerald, Sam Ure and Therese McCarthy 20. Paul Glass, Patrick O’Shannessy and Ben Gibson 21. Belinda Wilson and the Hon Justice Maxwell AC 22. Matthew Peckham, David Easteal, Daphne Foong and Stragen Foo

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9 THEDinner GLASSHOUSE, MAY 26 2017

n 26 May 2017, several hundred barristers and distinguished guests descended on The Glasshouse. Promoted as the perfect location for a ‘sophisticated soiree’, attendees were treated to one of the newest venues in Melbourne, located in the heart of Olympic Park. To accompany the location, the wine, the fine dining 13 and, of course, the band, there were the speakers. This Oyear, the keynote speech was delivered by the , her Excellency the Hon AC. Her Excellency spoke fondly of the Bar and reminisced about earlier such dinners, and the importance of the Bar Dinner in the social life of the Bar. Kathleen Foley delivered the speech on behalf of the Victorian Bar with wit, flair and a healthy dose of self-deprecation. The refresh of the Vicbar Website (and everyone’s new photos) offered fertile ground 15 16 for humour, as did her ‘research’ of her predecessors’ 17 speeches in previous years. She ended with a stirring reminder of the work that is being done, and remains to be done, as we support the diversity of the Bar and the needs of many of those present. The President of the Bar Council, Jennifer Batrouney QC, and its Deputy President, Dr Matthew Collins QC were a terrific support crew for the evening’s honoured guests in their introductory comments.

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1. The Hon Martin Pakula AG, Jennifer Batrouney QC, her Excellency the Hon Linda Dessau AC and his Hon Judge Tony Howard 2. Anna Svenson and Kate Conners 3. The Hon Justice Chris Jessup, Amanda Upton, Bridget Slocum and Simon Pitt 4. Roshena Campbell, Jennika Anthony- Shaw, Sarah Zeleznikow, Emily Golshstein 5. Rachel Waters and Anna Lord 6. David Andrews, Sarah Fregon and Nicole Papaleo 7. Rebecca Howe and Andrew Clements QC 8. Adrian Anderson and Elle Nikou 9. Robert Heath and Kieren Hickie 10. Katherine Farrell, Briana Goding and Coral Alden 11. Paul Hayes QC, the Hon Justice O’Callaghan and Raini Zambelli 12. Kingsley Davis OAM, Marian Clarkin and Paul Panayi 13. Her Hon Judge Marks and the Hon Associate Justice Ierodiaconou 14. Fiona Batten and Leisa Glass 15. Johannes Angenent and Ahbi Mukherjee 16. Gavin Silbert QC, Caroline Kirton QC, Andrew Panna QC 15 and David Brustman QC 17. Leo Faust 18 Tass Antos, Bridget Slocum and Andrew Burnett 19. Emma Heggie and Simon Tan 20. Tim Maxwell, Francis Gordon and Patrick Noonan 21. Peter Rozen and her Hon Judge 16 Chambers 22. The Hon Martin Pakula AG, his Hon Judge Tony Howard, her Excellency the Hon Linda Dessau AC, Matthew Collins QC, the Hon George Brandis AG, Jennifer Batrouney QC 23. (back) Tom Barry, Calum Henderson, Matthew Peckham, Alice Muhlebach, Coral Alden, Fiona Hudgson, Daphne Foong (front) Scott Davison, James Humphris, Natalie Campbell, Stragen Foo 24. Simona Gory, Elizabeth Bennett and Kathleen Foley

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13 1. Victoria Mcleod 3. Fiona Ryan, Emily Latif and Fiona Forsyth. 4. His Hon Judge Woodward, Penny Neskovcin QC 5. Wendy Harris QC 6. Natalie Hickey, Simon Marks QC, Matthew Collins QC and Rachel Chrapot. 7 Leisa Glass, Cathy Dowsett, and Stella Gold 8. Penny Marcou, Dermot Connors and Shane Thomas 9. Matthew Collins QC 10. Lisa Nichols and Rachel Doyle SC 11. Kathleen Foley, David Morgan, Emrys Nekvapil and Elizabeth Bennett. 12. Coral Alden 13. John Champion SC 14. Rebecca Preston and Patrick Whelahan 15. Noel Ackman QC and the Hon Justice McMillan 16. Ben Gauntlett and Daniel Crennan QC 17. Kathleen Foley 18. Her Excellency the Hon Linda Dessau AC 19. Jennifer Batrouney QC 20. Miles Tehan, Roshena Campbell, Tim Jeffrie and Justin Hooper 21. Alexander Solomon-Bridge, the Hon Justice Lee and Dion Fahey 22. William Alstergren QC 23. Justin Wheelahan. 14

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SALLY BODMAN

two-fold celebration took place in entrenched in the mainstream culture the Peter O’Callaghan QC Gallery and operation of the Bar; not merely a Aone Friday evening in late March peripheral activity to be revisited from 2017. Members of the Bar, the Bench time to time. and the Aboriginal community gathered Four years down the track our second to celebrate the tenth anniversary of RAP has given us the opportunity to the Bar’s Indigenous Clerkship Program measure progress and to improve and and to launch the Victorian Bar’s new expand on the initiatives undertaken in Reconciliation Action Plan (RAP) for the first RAP. 2017-2020. The message on the evening of the Wurundjeri elder Aunty Joy Murphy- launch of our second RAP was a strong, Wandin AO opened proceedings with a positive and progressive one. The RAP Welcome to Country. has been well received at the Bar. Our Among those who spoke at the launch clerkship program has continued to were the Hon Stephen Kaye AM, the Hon inspire young indigenous students Mordy Bromberg and two of the clerks to a career in the law, the number of from this year’s Indigenous Clerkship indigenous barristers at the Bar has Program. The program is a prime focus of increased, and the Bar is tracking well the Indigenous Justice Committee (IJC) against the objectives of the first RAP. and offers three indigenous students in Activities of the IJC in that time have each year a total of three weeks’ paid included a number of CPDs on issues work experience at the Bar, the Supreme affecting the indigenous community Court of Victoria and the Federal Court of within the legal system, the running Australia. Both the judges and the clerks of mentoring and work experience spoke of the program as having been a programs for secondary and tertiary personally enriching experience and an indigenous students and the continued example of reconciliation in a real and administration of the Indigenous practical sense. Importantly, the program Barristers’ Development Fund and the offers the opportunity for indigenous Indigenous Barristers’ Fund. In addition, students to forge relationships with the Bar offers subsidies for indigenous mentors who have the potential to have barristers in their early years at the Bar. a positive influence on their careers in The Oxford dictionary defines the law. reconciliation as ‘the action of The RAP was launched by her Honour making one view or belief compatible Magistrate Rose Falla, Victoria’s only with another’. That’s a rather dry Aboriginal judicial officer, and her father, interpretation for the very real Uncle Kevin Coombs, an esteemed leader reconciliation evident at the launch. The of the Victorian Aboriginal community. RAP, by its very existence, proves that The Victorian Bar was the first Bar in there are still serious issues affecting Australia to adopt a RAP back in 2012. indigenous men and women in the justice The Bar and the IJC have ensured that system. Its keen adoption by the Bar the RAP is more than a piece of paper and its realistic review and expansion filled with lofty objectives. It was drafted goes a long way to addressing the as an identifiable list of actions with issues and delivering a message of clear targets and timelines to ensure that hope, optimism and possibility about the process of reconciliation becomes a more equitable future. illustration by guy shield by illustration

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George Hampel AM QC

ELIZABETH BRIMER

n 14 December 2016, a dinner was held in the Essoign not something that could be taught. It was a skill, or art, to Club to celebrate the extraordinary contribution made be acquired by absorption and practice. Learning came by Oby Prof the Hon George Hampel AM QC to the readers’ watching the leaders of the day in action, by doing and learning course and to the teaching of advocacy more generally. from one’s mistakes, or not. George Hampel was called to the Bar in Victoria in 1958, Although the Bar was collegiate and supportive, George was appointed silk in 1976 and in 1983 was appointed to the the visionary who challenged and changed the old ways and the Victorian Supreme Court. George Hampel pioneered advocacy assumptions underlying them. He believed that advocacy could skills training in Australia and began conducting workshops in be taught just as other aspects of the law and its practice could advocacy skills in 1972 and continues teaching to this day. be taught. Beginning with the readers’ course, with George at At the dinner, a visual mark of the extent of George’s its heart, then the establishment of the Australian Advocacy contribution was unfurled by Dr Matt Collins QC, the Chair Institute in 1991 with George as its founding Chairman, George of the Readers Course : many, many, many pages which listed and Felicity developed a national and international reputation the names of all members of the Bar who have been taught by for their insights and skills in the teaching of advocacy. George since the readers’ course started in 1980. The Hon Nahum Mushin, having expressly disavowed any Rather than having one speaker mark the occasion, Dr knowledge or involvement in that sport of hurtling down snow Collins invited a number of people close to George to reflect on covered slopes wearing a couple of bits of board on your feet, his extraordinary contribution to the teaching of advocacy. A recalled the early days of the readers’ course; the terrible green number of wonderfully personal reflections were offered.1 armchairs and makeshift moot courts on the 13th floor. Although The Hon Michael Black AC QC reflected that the old system not fully realised at the time, George was the key influence on the of bar reading rested on the assumption that advocacy was structure and content of the course, which was truly innovative.

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1. George Hampel AM QC 2. Sarah Porritt and Jim Shaw 3. The Hon Justice Marica Neave AO and the Hon Justice Dixon 4. Rachel Chrapot and his Hon Judge Gucciardo, Carolyn Starke QC 5. Mathew Collins QC 6. Simon Marks QC, Her Hon Judge Hampel and Deborah Mandie 7. Wendy Pollock, the Hon Justice Sloss, Miguel Belmar and Diana Price 8. George Hampel AM QC and Chris Winneke QC 9. Adrian Finanzio SC and Chris Canavan QC 10. The Hon Justice Chris Jessup, the Hon Justice Moshinsky and the Hon Justice Michael Black AC 11. Hampel family 7

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Teaching with George at many coats, evenings spent on the terrazzo of the material, but understanding weekend workshops all around the in Prato, deep in lengthy conversations is not enough. country, the feedback from students was about advocacy, philosophy and ethics. As an advocate, one must appreciate always superlative. The highlight of the He observed George’s full appreciation what needs to be conveyed, but also advocacy teaching with George was at of beauty in art, food, people, talking, how it is best conveyed. George’s ’s campus in Prato. work, silence, music, cars, his curiosity teaching has provided advocates with As Adjunct Professor at Monash, about life and people generally. a means to communicate in court George brought his advocacy teaching George has achieved an effectively. His Honour reflected to the position. Every student expressed extraordinary liberation of heart and that whether the principles were glowing endorsements of his work. mind. An undisturbed spaciousness successfully applied and executed by His Hon Judge Frank Gucciardo and equanimity that is not cynical His Honour as an advocate is no longer considered that the best way to honour or detached. Capturing all those a matter for debate; at His Honour’s George and to describe the impact he experiences and so many more, he has own welcome, he was told he was an has had on advocacy teaching over the emerged awake to life in a total and excellent advocate. last 30 years was to offer a reflection compassionate engagement that is George has striven to improve the about George’s character. inspirational and which lies at the heart advocacy of so many, even by degrees. George, he said, worked tirelessly of what powerful advocacy can be. George’s passion for advocacy and inspiring and guiding young and His Hon Judge Greg Lyon first attended striving for excellence remains with his not so young advocates to broaden a workshop run by George in 1985 as a Honour today. their horizons and find that spark young solicitor. Having attended many During my time as George’s associate, for persuasion, for communication, more both as a student and teacher His I was persuaded that spending many for clarity, for primacy. He recalled Honour reflected on the influence George weekends filming advocacy workshop travelling with George, drinking has had over so many. He said George performances was akin to winning the Slivovitz at dinner in Prague or has demonstrated that to communicate lottery. Many evenings and weekends ‘Cossack’ dancing in a frozen ice bar clearly, one must prepare. With later, I appreciate fully that, with George, in Hong Kong while wearing bearskin preparation comes an understanding I really did win the lottery.

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That is perhaps not most importantly within a theoretical framework whilst Always looking forward, George reflected in my ability to ski, encouraging individuality within that spoke about the critical need for appreciate great Burgundy and the 7th framework. George and Felicity were advocates to continue to learn and to arrondissement of Paris, but rather invited back again and again. challenge themselves to ensure that because I have watched and worked with George’s work led to the their skills do not plateau and decline. one of the truly great original thinkers; development of the advocacy To achieve and maintain excellence about advocacy as the art of persuasion, component of the readers’ course, and in any area where skills are involved, about skills learning, about teaching, invitations to share his insights with as in advocacy, further coaching and about life. the profession interstate, overseas engagement in deliberate practice Everything that happens is, for George, and the formation of the Australian with objective input is essential. An an opportunity; an opportunity to Advocacy Institute. Word spread. By important part of achieving this goal develop, to work towards excellence. To the early 1990s, George and Felicity is the development of a culture which be a co-author of the Advocacy Manual were invited to teach at Greys Inn, to embraces continuing skills learning. is a privilege. To have been part of the Hong Kong, Singapore, Malaysia and The President of the Victorian Bar, recording of George’s commitment South Africa. Then to The Hague and Jennifer Batrouney QC announced the and passion for the benefit of others is the International Criminal Court. dedication of the new space in Level 1 priceless. It is George’s total commitment When George joined Monash of Owen Dixon Chambers East, “The to his passion that has been and still is so University, the rigour of George’s George Hampel Gallery”. There is a panel inspiring. theoretical framework was recognised of screens that displays the photographs Her Hon Judge Felicity Hampel in the structure of the subjects taught, of all of the Readers since the course reflected on the impact George has George’s appointment as a Professor and began in 1980; (almost) all of whom were had internationally. In 1984 George the receipt of many teaching awards. taught by George.

and Felicity went to NITA, the pioneers George is a Bencher of Inner Temple, 1 Thank you to all who spoke kindly for providing of the performance/review technique. recognition of the extraordinary impact of their speaking notes which I have used to George’s transformative contribution “The Hampel Method” as his workshop summarise their reflections. Necessarily, I have at NITA was the emphasis on teaching skills training is called in the UK. had to be selective.

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13 1. His Hon Judge AO, Fiona McLeod SC, 14 Barbara Rozenes, Con Heliotis QC and His Hon Judge Gucciardo 2. Ray Finkelstein AO QC, His Hon Judge Lyon and Chris Canavan QC 3. The Hampels 4. Caroline Kirton QC 5. Bianca Stajic and Rob Taylor 6. Elizabeth Brimer 7. Elizabeth Brimer 8. Her Hon Judge Marks, Matthew Collins QC 9. Professor The Hon Nahum Mushin AM, Simon Marks QC 10. Deborah Mandie and Miguel Belmar 11. Adrian Finanzio SC, His Hon Judge Michael Rozenes AO, her Hon Judge Hampel 12. Ben Lindner 13. The Hon Justice Dixon, his Hon Judge Taft 14. Randall Kune 15. Jennifer Batrouney QC, the Hon Justice Michael Black AC 16. Sarah Porritt, Wendy Pollock and Pierre Testart 17. Her Hon Judge 17 Hampel 18. Sue McNicol QC, Peter Heerey AM QC 19. Chris Canavan QC and Con Heliotis QC 20. Jennifer Batrouney QC

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Henson portrait of the Hon Ken Hayne AC QC 1

SIOBHAN RYAN, ARTS AND COLLECTIONS COMMITTEE

t took a long time - over 12 months between commissioning and unveiling - but on 27 April 2017, Bill Henson’s much anticipated portrait of the former High Court Judge, the Hon Kenneth Hayne AC QC was revealed to members of the Bar, the judiciary and guests, including Ken Hayne’s family. Peter Jopling AM QC, the Chairman of the Art & Collections Committee and a driving force behind the 2 commission, opened the evening by introducing the artist: “Artists like Bill Henson are a rare breed indeed. Over his forty-year career, Bill in a sensitive and engaged way, has focused on the human condition and Iphotographed in a manner which has always been powerful and evocative.”

Although the human figure has been his constant subject, Henson rarely does portraits. In 2002, he photographed the conductor Simone Young for the National Portrait Gallery. A decade later, in 2013, he captured the actress, Cate Blanchett for Time Magazine. The Bar’s 3 portrait of Ken Hayne is only his third public portrait commission. The task of unveiling fell to the Commonwealth Solicitor-General Dr Stephen Donaghue QC, who was an associate of Hayne’s at the High Court and is now his colleague in chambers. Dr Donaghue spoke of Ken Hayne’s many accolades and achievements: a graduate of Melbourne University with First Class Honours in Arts and Law and the Supreme Court Prize for 1967; a Rhodes Scholar and Oxford graduate; reading with JD Phillips and signing the Bar Roll in 1971 (Bar No. 969); taking silk in 1984 and judicial appointment in 1992. In 1995, he was appointed as one of the foundation members of the Victorian Supreme Court, Court of Appeal, with his mentor J D Phillips JA. Two years later he was appointed to the High Court, on which he 4 served for almost 18 years. Dr Donoghue spoke warmly of his time as Hayne’s associate and it was clear from his anecdotes that Hayne’s other associates also have fond memories. In fact, 27 former associates contributed to the funding of the commission. Ken Hayne replied with modesty, telling Bill Henson, “In the best traditions of this Bar you have taken a pig’s ear of a case and turned it into a silk purse, in this case a wonderful piece of art”. And the portrait is indeed wonderful. It is a three-quarter length image of Ken Hayne seated, dressed in a charcoal suit, his AC pin attached to the lapel. He wears a white shirt and a red tie. The background is dark and velvety. A swathe of golden light dissects the scene as if in a Johannes Vermeer interior. The frame

1. Ken Hayne AC QC with Bill Henson 2. Ken Hayne AC QC and the Hon Justice Gordon AM 5 3. Louise Hearman and Peter Joplin AM QC 4. Peter Hanks QC, Rowena Orr QC and Mark Costello

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is classic black with a gilt edge. Its size is imposing. The work is charged with signs that this is one serious around town around portrait. But then there is the mischief. It starts with Hayne’s raffish shirt- collar, which refuses to be contained. It plays on in the enigmatic smile, caught halfway between grimace and grin and finally settles in the eyes - there is no denying it, they twinkle. Bill Henson says that he 5 6 was concerned to, “capture the contradictions”. This meant portraying Ken Hayne’s wit as well as the seriousness associated with his office. It required the artist to let the lightness shine through the gravitas. And so it does. Behind this achievement is a complex process which began with several conversations between the artist and the sitter at Henson’s home/ studio. The actual shoot was completed in one sitting. Then came the painstaking creation of the material work. Nowadays, Henson shoots in analogue film, then digitalises the negatives. Narrowing 300 shots down 13 to a single frame, meant ruminating over the proofs to find the one shot which “has it all in there”. And because he shoots on film, the potential of the shot is not revealed until well after the sitter is gone. During the process, colour was 10 pared back. The technique of ‘dodging and burning’ was then 14 deployed to create contrasts by regulating the exposure in specific areas. It took time, with Henson making test print after test print to record his explorations with colour and light. Although the term “painterly” is frequently used to describe Henson’s photos the process seems more like sculpture. Henson acknowledges this 16 when he says, “I make objects that just happen to be photographs”. This object is a superb addition to the Peter O’Callaghan QC Collection, made possible by the generosity of Hayne’s former 27 associates, an anonymous donor and the Bar.

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11 1. Bill Henson, Ken Hayne AC QC and Dr Stephen Donaghue 2.Lisa Fitzgerald and Jacqui Fumberger 3 Clive Tadgell, Sir AC KBE CB QC and Ken Hayne AC QC 4. Dr Samuel Mandeng, Jan Minchin (Tolarno Galleries), Martin Allen 5. Jim Hartley 6. Dr Ian Hardingham QC, Peter Joplin AM QC, Bill Henson, Jennifer Batrouney QC, Ken Hayne AC QC, Dr Stephen Donaghue 7. Ron Merkel QC, Sir Daryl Dawson 8. Ken Hayne AC QC’s brother and sister-in-law 9. Michael Wheelan QC, QC, Eugene Wheelahan 10. Siobhan Ryan, Dr Samuel Mandeng and Ken Hayne AC QC 11. Siobhan Ryan, Kirstin Green, His Hon Judge McNab 12. Ken Hayne AC QC, the Hon Justice Gordon AM and family 13. Stephen Donaghue QC and Sir Daryl Dawson 14. Natalie Hickey, Matt Connick QC and Sarah Fregon 15. Kate Clark, David Bennett, Adam Kirk and Alistair Pound 16. Registrar Daniel Caporale, Kate Clark, James Hayne, Ken 15 Hayne AC QC and Christopher Weymouth 17. Adam Bushby (Honorary Curator of Peter O’Callaghan QC Gallery), Susie Chadbourne, Daniel Kinsey 18. Rosemary Musolino, David Bennett and Richard Niall QC SG 19. The Hon Justice Gordon AM, Jan Minchin, Louise Hearman 20. Ben Gauntlett, Claire 12 Harris, Jesse Rudd 21. Ken Hayne AC QC and the Hon Justice Gordon AM 22. The Hon Justice Nettle and David Curtain QC

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22 VBN 22 VBN 23 Supreme Court of Victoria around town around v Australian Cricket Society SUNDAY 26 FEBRUARY 2017

BY DAVID HARPER

hat follows is history as it should be written. football for West Melbourne, and was a noted amateur athlete. Evidence based. Dispassionate. Comprehensive. But Judging for the People does mention that he was president of the WI want to begin with some general observations. Melbourne Cricket Club for 26 years from 1907 until his sudden A fine book was published in April 2016, on the occasion of death in 1933. His tact and kindliness, coupled with his ability the 175th anniversary of the first sitting of the Supreme Court as an administrator, preserved harmony and goodwill where in March 1841. Judging for the People – A Social History of the elsewhere, particularly during the “bodyline” controversy, each Supreme Court of Victoria records in often striking prose the was in short supply. story of an institution with intricate and intimate links to its The Hon Eugene William (“Bill”) Gillard was for years a community. Since the arrival in Melbourne of John Walpole playing stalwart of the Brighton Sub-District First XI. He was Willis as the first Supreme Court judge, the Supreme Court has also the inaugural, and legendary, captain, both ex officio and been an integral part of the social fabric of, first, the Port Phillip plenary officio, of the Supreme Court XI. No one else came near district and, thereafter, the colony and State of Victoria. to qualifying, or would dare to admit to an ambition for the job, But there is a gap in the account which Judging for the People when Bill was available. He once bowled to the West Indies star gives. Sport is not mentioned. Yet sport, and cricket not least, opening batter Desmond Haynes, with the result that Haynes has been an important element in the history of that social was dismissed for a duck, caught in slips off an unplayable fabric; and sport has frequently breathed both within and reverse-swing Gillard special. outside the corridors and chambers of the Court’s buildings. And so to the third of those who cannot be otherwise Even as this is written, the external passageway on the eastern than the subject of attention bordering on awe. John Vardy. side of the Old High Court is the practice nursery in which some Indispensable tipstaff to successive judges of the Court. An of the cricketing legends of the Supreme Court cricket team ornament to the administration of justice. Organiser of some were (in cricketing terms) born, and in which all have honed of the Court’s most important collegial events, such as the their skills. commemoration of Armistice Day. And for 16 successive years In these circumstances, the fact that, in the modern era, not merely a member of, but a driving force behind, the Court’s the Judicial Cricketers’ Trophy has been won and lost over 17 cricketing endeavours. Practice organiser, team selector, at successive years should be recorded when the second edition various times acting captain, co-captain and vice-captain, and of Judging for the People is published. For 17 unbroken years, the always opening bowler and stout-hearted middle-order batter. Supreme Court XI has brought together in close collegiality a The heart and soul of the team. complete cross-section of Court personnel, male and female, These are the attributes John also brought to his day job. from general hands to administrative staff, from tipstaves to There is a photograph of the tipstaves, taken in 2014, in Judging judges’ associates, from trial judges to the President of the for the People. It appears, as it should, under the heading Court of Appeal. It is and always has been an exemplar of “The Soul of the Court”. John is among them. But there is no inclusivity without borders. In no other aspect of the Court’s life photograph of the cricket team of that year, although had it has such a broad band of brotherhood and sisterhood flourished appeared it would have included Peter Gregory. to such an extent. For 18 years, Peter was The Age’s Supreme Court reporter. The team is paramount; but many individuals with close He is also an opening batsman with a style which combines connections to the community, to sport and to the Court could touches of David Warner with traces of Matt Renshaw; and a also be mentioned in this context. Three deserve attention spin bowler who, while lacking something of Shane Warne’s here. Sir Leo Cussen, one of the Court’s – and Australia’s – loop and turn, is equally effective as a brake upon over- most revered judges was awarded a full Blue for cricket when, ambitious batters. He is an automatic selection for the Supreme in 1879, he was an engineering student at the University of Court XI whenever he is available, which fortunately is most of Melbourne. He switched his allegiance to the law in 1885, the time. when he commenced his law degree. But his allegiance to Equally important in this context, Peter is one of the authors cricket never wavered, though he also played Australian Rules of Judging for the People. He is therefore a direct link between illustration by guy shield by illustration

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the book and the cricketers of the Court and, maybe more importantly, to passage. They will doubtless continue Supreme Court. It is a link which is put a human face on all of its workings. that tradition, as they did on Sunday emblematic of the Court’s ability to Here is a place … that depends as much 26 February 2017 in the annual match sideline hierarchical structures whenever on cleaners and messengers, typists against the Australian Cricket Society. (which is often) a concentration upon and jurors, librarians and a host of So I now turn to that which, on that day, its overriding collegiality is appropriate. officials with byzantine titles such as I saw with my own eyes, and about which Peter contributed the book’s penultimate ushers, tipstaves and prothonotaries I can speak the truth, the whole truth chapter. It is entitled Journalism and as it does on barristers, litigants, and nothing but the truth. I was present the Supreme Court. The final chapter, defendants and judges. Here is a at 10.30 that beautiful Sunday morning, Conclusion, includes a pertinent passage: place that depends not just on its own with the conflict shortly to begin. With my wisdom but on the expertise of others. experience in cases of homicide, I could This remarkable book may be unique tell at once that it would be bloody. The among official court histories, because For the last 17 years the Supreme Court pitch was grassy-green, dripping with it seeks both to demystify the Supreme cricketers have given substance to that barely suppressed hostility. But whether for

24 VBN VBN 25 With my experience in cases of homicide, I could tell McCoy, Associate to McMillan J, was at once that it would be bloody. joined on Patrick’s departure by Will Davidson, Associate to McDonald J. around town around batter or bowler could not be ascertained otherwise beyond fear. His only comfort A flurry of runs followed – miracle of with confidence. It might bounce. Or it came with the news that he would not miracles, Hopkins was hit for 3, 2, 2 and 2 might grub. Or it might, Janus-like, do have to confront John Vardy. John was in successive balls – but the partnership both. Croucher J, captain of the Supreme to miss this match for the first time in 17 succeeded only to a point. When McCoy Court XI, was accompanied by McDonald years. An unmissable family commitment was stumped for 12 – odd, this, since J, as the pitch was prodded and poked and had precluded his appearance. judges’ associates are never stumped generally examined with the experienced When, however, one lifted one’s for anything - the ACS team, being forensic eyes which each of those two eyes from the turf to the surrounds, the sportsmen that they are, resisted judges brought to the task. I could almost and considered the huddle gathered the temptation to point the way to the hear their intellects whirring as they juggled for the toss of the coin, the scene was pavilion. They simply breathed a huge with the prospect of the impending toss. pitch-perfect. The D W Lucas Oval sits sigh of relief. If won, a momentous decision would be like a village green in the leafy valley of Their sighing continued thereafter. forced upon the team: to bat or … well, to Gardiner’s Creek. Twenty-two fit, bouncy, Geoff Fraser and Will Davidson (29) bat. Yes, it might be hot in the afternoon, nervy cricketers, dressed as for an Ashes added 44, while Fraser (36) and but by then the pitch would probably be Test, watched as the umpires, similarly McDonald J contributed another 40. terminally ill, taking to the grave any chance accoutred, declared that the chosen coin The partnership between Fraser and for the batters to judge pace or bounce. did not have two tails. Penaluna tossed, McDonald was the highlight of the While this was being done, Ken Croucher called, and heads it was. The match. This was batting of real quality, Penaluna, the captain of the Australian SCV XI turned to the pavilion to prepare a delight to watch even if you were a Cricket Society Veterans XI (“ACS”), for its innings. bowler. It ended with Fraser being run out looked on with growing disquiet. He They were not playing for peanuts. (not his Honour’s best call) when Fraser knew instinctively that the confidence of This is not a cricket match for the was only 4 shy of compulsory retirement. the Supreme Court, which never wilted faint-hearted. The Judicious Cricketers’ The judge more than compensated by from an insufficiency of bravado, was Trophy is something for which a tough deservedly reaching that landmark after growing with every prod. True, he could contest – fought, nevertheless, with an additional 40 runs had been added call upon a strong bowling attack, headed strict adherence to the principles of in partnership with Rod Ratcliffe (16). by the eternally ageless Bob Hopkins. International Humanitarian Law - is By then the SCV had reached 5 for 145. In the Court’s (now) 176 years Hopkins, fully justified. Indeed, that is part of its The remaining batters increased that who has been bowling for at least that charm as the centrepiece of a fine and to 171 before the allocated 40 overs long, has upended almost as many gracious tradition. When lost, the trophy were completed with 9 wickets down. Supreme Court judges as have courts of sits proudly in the prize cabinet of the Hopkins had, for him, an ordinary day: appeal. And the ACS could also deploy winning ACS captain. When won, it sits 3 for 21 from 8 overs. His performance the spin of its President, Ken Piesse. His with equal pride on a Supreme Court nevertheless could stand proudly deliveries are so well flighted that they mantelpiece. Seen with the afternoon alongside those of McDonald, Fraser and get lost in the sun. It is often minutes sun behind it, it is often mistaken for Davidson. before the defeated batter, stumped with the Melbourne Cup. It arrived, superbly Penaluna’s prescience of the morning humiliating ease, can recover the gift of polished for the occasion, resplendent proved to be the reality of the afternoon. sight sufficiently to depart the crease. in the custody of Penaluna. He had held The pitch, however, was only partly to But the ACS batting was, on paper at it in trust for the last 12 months. He blame. When by bowling of real skill least, brittle. All Penaluna’s increasingly claimed that, if equity were to prevail, Davidson takes 3 wickets for 10 runs, crafty batting skill would be needed the Supreme Court would uphold his McCoy 3 for 12 and Beach 2 for 19, 171 is if victory was to be won: with him, as trusteeship. These were submissions an unreachable destination. Each bowler with Hopkins and Ashley JA – another which the Bench received with was assisted by the superb wicket- champion of the SCV XI, and its former incredulity. keeping of Patrick Hansen. The result was captain - the passage of the years seems In accordance with laws of universal an ACS score of a mere 74, giving the somehow to have encouraged a renewed validity, Bob Hopkins opened the bowling. Supreme Court its most decisive victory blooming of inherent talent. Even so, the In accordance with those same laws, in 17 years. How could this be, when loss of the toss, and the consequential he bowled Patrick Hansen with the Vardy was not there? This is a mystery prospect of having to bat in the afternoon first ball of his second over. Hopkins which no jury could solve. But, at least sun on a gravestone of a pitch against does not operate under the rule of law until summer once again calls the SCV the bowling of Christopher Beach and as mortals know it. Patrick, the son of XI into action, the Judicious Cricketers’ two young associates – Jonathan McCoy doughty tipstaff Frank, had done well to Trophy will sit on a Supreme Court and Will Davidson - daunted he who was last that long. At the other end, Jonathan mantelpiece.

26 VBN VBN 27 around town Bar, Bench and Solicitors golf day

CAROLINE PATTERSON

wenty four golfers representing the jovial and relaxed atmosphere amongst Bar, Bench and Solicitors competed the group, despite the frustrations of Tin a four ball event, with the the barristers, who were in the majority, result declared a draw. The Sir Edmund about the overall result! Herring Trophy has been retained by a The next scheduled event at this stage representative of the Bar as we were, will be the Victorian Lawyers versus NSW coming into the day, the reigning title Lawyers Golf Day on 20 October 2017. holders. All golfers, regardless of ability, are The conditions at the Kingswood invited and encouraged to participate and course were ideal, as was the weather. put in a good show against our rivals up A beautifully prepared lunch was enjoyed north. Stay tuned for further notices and after the round in the clubhouse, in a developments.

From left to right: James Syme, Ian Dunn, Michael Proud, Rex Wild, Tony Kenna, Declan Hyde, Bob Miller, Norman O’Bryan SC, Jeff Sher QC, Philip Jewell, Judge David Parsons, Peter Rashleigh, Caroline Paterson, Myles Tehan, Fran O’Brien QC, Alan Middleton, John Dunne, Huan Walker, Ron Tait, Tim Tobin SC, Gavan Rice, Adrian Anderson and David Curtain QC

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Now I know what I want to do when I grow up: Volunteering at the Capital Post-Conviction Project of Louisiana

BY NATALIE HICKEY

is arm (metaphorically) twisted high Ken is cautious about sharing too much about up his back, Ken Howden is somewhat his experience because interns are subject to strict reluctantly sharing his story of volunteering confidentiality requirements. The work is sensitive and at the Capital Post-Conviction Project of the stakes are high. Louisiana for 10 months in 2015-2016. What he does share is that the internship program Ken is not a ‘look at me’ person, but in the spirit of usually goes for three months. Interns are placed in an Hpaying it forward, he is prepared to offer some insights, to office where they might do photocopying, carry the bags, help others who might wonder whether the experience is undertake research and are otherwise general dogsbodies for them. around the office. Most interns are students starting He is a commercial barrister, whose practice more their legal career. Ken was a ‘little’ older than the typical typically involves assessing the strength of insurance demographic, but he says he fitted in fine. His experience claims and the applicability of exclusion clauses, meant that he undertook more legal research and writing than searching through transcript in capital cases for than is probably typical. appellable error. He says, “Louisiana has about five million people and 42 Ken’s interest in the activities of Reprieve (a not for judicial districts. This means there are 42 panels of judges, profit organisation in the United Kingdom and Australia 42 sheriffs, and 42 district attorneys—every last one of opposed to the death penalty) was sparked some years them elected. Democratically. You get arrested, charged, ago by barrister Ashley Halphen, who spoke about his then tried, at this District Court level. Some DAs go for the own experience as a volunteer. Ken was also influenced death penalty, others don’t.” Whilst Ken is circumspect, by Justice Lex Lasry, with whom he shares a love of music, one can readily infer that we are in the Deep South and who has experienced first-hand the tremendous and that the United States legal system is more overtly challenge of representing people on death row in political than the Australian system. countries (at last count there were 25) still implementing He then explains that “matters come to the Capital the death penalty. Post-Convictions Office of Louisiana after normal And so, with his wife Emma and two school-aged appeals are exhausted, in which case the prisoner has children (then aged 16 and 13), Ken packed his bags and become ‘death eligible’. So one immediately files a relocated to New Orleans in the United States for almost habeas corpus petition in the federal courts whilst the a year. He and Emma, who is also a lawyer, had initially Louisiana state court post-conviction review process intended to do consecutive three-month internships, but continues.” they ended up doing it together. The trial record is readily available for inspection and He appreciates this was a little left field for a analysis, Ken says. He explains the task, in that “you are commercial barrister but, when queried on his motivation, picking over transcript, motions, orders, investigators’, says, “In my case, perhaps it’s a small case of giving district attorneys’ and previous defence lawyers’ files, something back.” looking for errors.” He observes that practising in this

28 VBN VBN 29 jurisdiction involves a lot of attention Some of Ken’s descriptions sound like a cross to issues of ‘due process’. between the Netflix documentary Making a Murderer Navigating this legal maze news and views news and HBO’s True Detective. means that one has to develop a swift understanding of precedent New Orleans had become a museum rebuilt, and that there are certain in circumstances where there are and that Austin, Texas was where the places you just don’t go to after 9 pm. 50 states in the United States of action was at. He disagrees with this He adds to the list, “the climate is America, as well as a myriad of assessment. awful, but the culture ...!” state courts and a seemingly infinite “The music remains vital,” he says, In short, as Ken puts it, he loved number of different circuits. Ken “it costs next to nothing. I saw Ellis, the joint and he loved the people. He notes that one needs to look further the father of all the Marsalis boys, for thinks race relations in New Orleans if you can’t find the precedent you’re nothing up at Tulane University, saw are perhaps better than in other parts looking for in your own State. Jon Cleary and his band for 10 bucks. of the South because there is high Some of Ken’s descriptions sound You can find stuff all over the place. internal migration to the city and a like a cross between the Netflix There is a wonderful little bar on vibrant African-American culture. documentary Making a Murderer and Washington Avenue called Verret’s. “White folks have to respect that. HBO’s True Detective. He admits that, Calvin Johnson, who I would now And mostly they do.” There are once you get to the Bible Belt, things count as a friend, played sax there with parades, Mardi Gras Indians, can look a little weird. his band. He had a different drummer available street culture and, “they He also becomes a bit fierce when every week, red hot each time. I was know how to deep fry”. describing the life of a person who sadly out of practice, but I’ve warned Asked about some of the prisoners has been convicted of a federal Calvin that when I go back, I’m going he met, Ken won’t say very much. The felony, on the basis that, “your time to sit in with them. Miss Kashonda will only thing he will say on the record is never done” and “you’re a criminal have to take a little rest.” is to observe generally about the forever”. “Former prisoners are Ken’s use of ‘when’ he goes back criminal justice system that “slavery subject to all sorts of disqualification does not go unnoticed and he casts a long shadow there”. of civil entitlements that to us appear, admits the place has got under his Plainly, something has ignited in ah, surprising.” skin. New Orleans is a very special Ken from his experience. He refers Ken is a devotee of New Orleans place to him even though he notes to it as a ‘fire in the belly thing’ and piano and a blues fan. He is a blues it will probably be under water by concludes, “Well, I’m 60 years old and pianist who has played in bands most 2060, that many areas affected by now I know what I want to do when I of his adult life. He’d been warned Hurricane Katrina have never been grow up.”

Commerce and the Lower Mississippi, by Ken Howden e’re sitting on the porch in the “So. We was this one time out ’bout the Lord? Lass he heard WLouisiana sun, the man who N’Awlins East. We talking to a Jesus don’t give out no chicken. came to fix our pipes and I. Would he brother, he 15 years old. He in the No diapers neither.” care for a soda? “Why thank you, sir: it retail business. He buy, he sell. Tough No soul, it seems, was saved that sho’ is mighty warm.” business. Stock on hand less cost of day. As we both know, by the time Pretty soon the talk drifts to matters purchases ’n’ all, they margins pretty that boy is 23 he’ll be up at the religious. He has been redeemed. The thin, he not accumulating no capital. Farm: picturesque Louisiana State Lord turned his life around that day “He do got security though. I seen his Penitentiary, in West Feliciana parish. when he lay in the crack house, shot cousin there, behind him in the hall: he It’s a consolidation of several former twice and bleeding out bad. got a AK-47. A feckin’ mo-sheen gun! slave plantations, one of which, “He tell me I gotta look after my And the brother, he got a .45 between Angola, lends its name to the facility. son. I heered His call. I give it up – the his legs, just sittin’ on the porch there. There, on the fertile banks of the crack. Now we get mebbe forty at our Right on the step. He know how to use it? Mississippi, traditional Southern ways meetin’s all hear the word of the Lord.” Maybe. I’s not askin’. are preserved, and un-mechanised The Timothy Trumpet of Truth “He say, ‘I got two dime rocks under primary production affords gainful Ministry proselytises where no my tongue. I sell these ’n’ I get me occupation for upwards of 5,000 Presbyterian dares tread. Sometimes some fie chicken an’ diapers fo’ the guests of the State. the seed is sown in fertile ground. Other baby.’ His priorities is his necessities, “Yeh, he be in Angola. Or he be times not. and his necessities is clear. He heard dead.”

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Spies like us? The David Combe Affair

STEPHEN CHARLES

n 1973, David Combe became General Secretary of the , while was Prime Minister. Combe had worked very closely with Whitlam and later became a very close friend and associate of while Hawke

was President of the ALP. In late 1982, illustration by guy shield Malcolm Fraser was still Prime Minister, havingI ousted Whitlam in 1975. Sensing a Labor victory, Combe resigned as General Secretary to go into business as a Canberra lobbyist. In essence, lobbyists hold themselves out as having access to government, senior politicians and bureaucrats, and offer that access to interested parties for a considerable price. Combe was known to have such access

30 VBN VBN 31 Petrov made startling allegations of a spy ring exposé of his hopes, casting himself operating in Australia, including in the office of the as a person with high access within the Australian Government, and out news and views news Opposition Leader, Dr H V Evatt. for a large financial gain. Ivanov, for his part, said he had a written to a high degree, and his business Ivanov had, however, been brief to talk to Combe about trading began very promisingly. He was identified by ASIO, in some clever possibilities, originating from Boris immediately retained by a number of detective work, as an officer of the Ponomarev (who was the head of the big corporates. KGB. There is no question that this powerful International Department In 1983, the Cold War was still very identification was correct, it was of the CPSU),1 and signed by the much in earnest. Ronald Reagan confirmed in various ways and it has Foreign Minister. But Ivanov’s was President of the United States, never been seriously challenged. position in the Soviet Embassy and calling the the Ivanov returned to Russia on leave was wholly unrelated to trade. “evil empire”. Mikhail Gorbachev in June and July 1982 and, while Furthermore, Ponomarev himself was did not become General Secretary away, ASIO planted a well-concealed certainly not a trade official. He had of the Communist Party until 1985 bug in his Canberra house. The masterminded the suppression of the and did not introduce the policies of result of ASIO’s identification of Hungarian rebellion in 1956 and his glasnost (openness) and perestroika Ivanov was, however, that those duties included issuing instructions (progress) until 1986. The Soviet who dealt with him also came to the KGB and GRU2 for any Union had invaded Afghanistan inevitably to ASIO’s notice. What clandestine operations. in 1979, and in 1982 remained in seemed clear to ASIO was that In 1954, Robert Menzies, Australia’s occupation there, bitterly resented Ivanov was cultivating Combe. longest serving Prime Minister, and fought by the Mujahedeen. Most Combe went to Moscow. He was facing an election and on the of the Western world had imposed had told Ivanov that he had been brink of defeat. ASIO then secured sanctions on Russia, and in 1980 asked by Matheson to see Nicolai the defection of Vladimir Petrov, the Moscow Olympics had been Smelyakov, the Deputy Minister for an official in the Russian Embassy, wrecked by the refusal of many Foreign Trade, and Vladimir Suslov, and his wife. Petrov made startling countries to attend. the head of the division of the allegations of a spy ring operating Since 1974, David Combe had Soviet Foreign Ministry concerned in Australia, including in the office visited Moscow on several occasions. with Australia. In Moscow, he met of the Opposition Leader, Dr H V He was well known to be interested Smelyakov and a number of other Evatt. The furore which followed in improving relations between high level contacts, and it seemed resulted in a narrow Liberal victory Australia and Russia. When he began that he had had some success in the election. The Labor Party was his lobbying business in 1982, one of in smoothing out relations for enraged and highly suspicious that his first clients was a company called Commercial Bureau. He returned to ASIO had engineered the whole Commercial Bureau, run by Laurie Australia to report. event to keep Labor out of office. In Matheson. Matheson had been a The Labor Party under Hawke was 1983, many in the ALP still retained navy diver, one of those involved in elected to Government on 5 March the darkest suspicions about ASIO the search for Harold Holt at Cheviot 1983. The election had been called and wanted to see the Organisation Beach, and while in the navy had on 3 February. On the same day, abolished. The Director General taken a course in Russian. Matheson Hawke challenged for of ASIO, Harvey Barnett, although was particularly interested in Russian the leadership of the ALP and won. aware of Ivanov’s cultivation of trade and the potentially enormous Hayden was very upset and annoyed, Combe well before the March 1983 commissions and profits involved. and later referred to the election as election, had not passed on ASIO’s Combe already had good contacts in one a “drover’s dog” could have won. concerns about Ivanov’s activities to Moscow, and left for a visit to Moscow The day before the election, 4 March, Government until after the election with his wife in November 1982, in Combe had dined with the Ivanovs at had taken place, to ensure that there part to assist Commercial Bureau. their house, the whole conversation could be no repetition of the Petrov Combe had been helped in getting being picked up by ASIO’s bug. It intervention. visas by one Valeri Ivanov, a First left ASIO in no doubt that Ivanov, It is important to remember Secretary at the Russian Embassy. a KGB officer, was engaged in the that it was never suggested by Ivanov and Combe had met early in vigorous cultivation of Combe, and anyone that David Combe himself 1982 and Ivanov had been friendly that it was time to report to the ever committed any wrongdoing. and attentive. Their social contact new Government that Ivanov was a ASIO’s concern was that Ivanov continued during 1982, with some KGB officer and should be expelled. was cultivating Combe because long lunches at Canberra restaurants. Combe had given Ivanov a frank Combe was a man of influence in

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the new Government. Combe knew With attacks being mounted in every direction, every member of the Party well. He Hawke decided on a Royal Commission. had access to all Ministers, and it was for that access that his clients was announced on about 21 April. in perfectly understandable and would pay. One example will suffice. Combe did not demur to Ivanov’s legitimate ways and then in Australia The Chief Minister of the Northern suggestions. What Ivanov said to had met on a number of occasions Territory, Paul Everingham, was one Combe on 3 April was completely with a KGB officer — he admitted of Combe’s clients. On 5 April, Combe untrue. under cross-examination that he took Everingham on a round of The Director-General of ASIO, thought Ivanov might be KGB. ASIO visits to six Ministers in their offices, Harvey Barnett, saw Hawke on thought that Combe may well have including Hawke himself. Combe 20 April and told him of ASIO’s been more interested in Ivanov had a number of substantial clients, concerns. ASIO wanted Ivanov because he believed him likely to be some of them paying retainers of expelled. Hawke then called in the KGB, and would therefore have more $50,000, and his business was plainly Cabinet National and International influence. going to be a very successful one. Security Committee (NIS) consisting The effect of cutting off Combe’s ASIO was suggesting only that Ivanov of Lionel Bowen, the Deputy Prime access to Ministers and senior and the Russians wanted to convert Minister; Gordon Scholes, the bureaucrats in Government was Combe into an “agent of influence”. Minister for Defence; Senator Gareth inevitably and immediately to destroy The agent of influence, in espionage Evans, the Attorney-General; Bill his lobbying business, already a very terms, is someone who seeks to Hayden, the Foreign Minister; and lucrative one. Ivanov’s expulsion was change people’s minds, leading them , the Special Minister duly announced. Shortly afterwards to adopt attitudes and policies, in this of State. After meeting again with the connection with a senior Labor case supposedly favourable to the Barnett, the NIS decided that Ivanov official became public knowledge. Russians, and usually with the source should be expelled, but also that The headlines were strident and of direction being fully concealed. Combe’s access to Government, to enormous. The destruction of The agent of influence is also likely Ministers and to senior bureaucrats, Combe’s business rapidly became to have access to highly confidential should be cut off. The decision to public knowledge and a furious storm documents and governmental blacklist Combe was made by the NIS broke over the new Government’s information. without any ASIO recommendation to head. With attacks being mounted in ASIO was concerned that Combe that effect. every direction, Hawke decided on was being cultivated for the purpose In his book about these events, The a Royal Commission, to take place of making him into an agent of Ivanov Trail,3 David Marr put it that in Canberra, and appointed Justice influence for the Russians, and in what happened to Combe was: Robert Hope of the New South Wales ASIO’s view Ivanov had already Court of Appeal to conduct it. Ian … a trial, held entirely in secret. The injected an element of clandestinity Barker QC and Rod Madgwick QC charge, very loosely formulated, was into the relationship. In one represented Combe, Michael McHugh of conspiracy to betray Australia to a conversation on 3 April, Ivanov had QC and Neil Young (of our Bar) the hostile power. The accused was absent, told Combe that he (Ivanov) might Government, and I was briefed with had no notice of the charge or the be expelled from Australia and that Alan Archibald to represent ASIO. proceedings and was not represented. he had information which suggested Barker had previously prosecuted The judges did not see the primary that Combe’s phone had been tapped Lindy Chamberlain to conviction5 evidence … or examine the witnesses. by ASIO after he had returned from and McHugh had appeared for her Moscow in December. They should Later, Marr (who is not known on her appeals. Barker and his junior not phone each other. Combe said for understatement) said that and client were very hostile to ASIO, that Ivanov told him that they should “Combe’s fate was decided by the and the atmosphere at the Bar table make contact only by private visits, Government for its own protection. was most unpleasant. In my role, I i.e. to Combe’s office or Ivanov’s Combe was a political problem not spent much time over five months home. Matheson’s evidence was a security problem.” Each Minister with Harvey Barnett. I found him that Combe told him on 6 April that saw the danger which lay in “an overt to be a fine man, a very competent Ivanov had said Combe should keep association of someone within the and fair-minded intelligence officer, a low profile and wait for Ivanov to bosom of the Labor movement with determined that ASIO should be contact him, although Combe denied someone who has been expelled for apolitical, and who should, with Ivanov used these words. ASIO espionage activities”.4 ASIO, have been applauded for had not tapped Combe’s telephone But all Combe had done was the organisation’s excellent work. after he returned from Moscow. It pursue contacts in Moscow, offering Instead, he was subjected to a did so only after Ivanov’s expulsion to assist the Soviet government campaign of hostility and derision by

32 VBN VBN 33 the press of the time. The very notion all the benefits of a good upbringing, attempt to build walls around the of an agent of influence was ridiculed readily agreed. Our fourth child, witness so that when one reaches by the press. not yet 10, was later heard by Jenny, the critical question, there is only news and views news Appearing in a highly political calling out from the first floor, “Right, one exit the witness can take. But Royal Commission can be very troops, upstairs, front room, quick, cross-examining politicians is a very stressful. There were 20 to 30 secret agent approaching at a fast different matter. They are well-used reporters led by David Marr present walk”. to questions from the press and in every day covering the Commission, The Commission started. The first parliament, and in such situations most of them hoping that ASIO and/ weeks—indeed two months—were easily avoid difficult questions. I or the Government would make spent in camera, questioning ASIO was attempting to get from each of mistakes. Much very secret material witnesses. ASIO had to establish the NIS ministers agreement that was involved, and all counsel had that Ivanov was a KGB officer, that ASIO had a legitimate concern about to be cleared for security. The the organisation was justified in its Ivanov’s activities, that they had acted difficulty of handling the secret concern that his activities had gone properly in reporting what they had material was considerable because beyond what was diplomatically learnt to the Prime Minister, and that it had to be carried in and out of the acceptable, that the organisation what was reported was correct. Commission (which took place in was justified in its surveillance of Each of the six NIS ministers gave the Hinkler Building) every day in Ivanov, Combe and others, including evidence and was cross-examined. sealed yellow bags surrounded by the bugging operation, and that they The two most important from ASIO’s hovering reporters. The reporting were justified in reporting their viewpoint were the Prime Minister of the Commission’s proceedings concerns to Government. There was a and the Attorney-General (Senator was consistently appalling. Combe great deal of very hostile questioning, Gareth Evans), the latter being the was conducting a continuous particularly from Combe’s counsel, minister responsible for ASIO. Hawke and very noisy campaign against much of it informed by deep-rooted gave evidence over three days, the Government and ASIO, with hostility to ASIO and its methods, and Friday to Sunday, the Commission repeated demands that ASIO should scepticism as to its competence. The taking evidence the whole weekend be abolished. This was particularly evidence given in camera was mostly to enable him to leave on Monday unfair given that ASIO, by first-class published later, after the portions for an overseas trip. It is very rare intelligence work, had identified a regarded as secret had been redacted. for a Prime Minister to spend time KGB officer and planted a bug in The remainder of the evidence in a witness box, still less to be his house undetected and deserved was given mostly in open hearings. subjected to cross-examination.7 credit rather than abuse for it. The We heard from all the NIS cabinet Hawke had at least three areas of press treatment of the Commission, members involved and the longest real danger to cover in his evidence, and ASIO, was very well analysed in a witness was David Combe himself the most difficult being the decision lengthy piece by Robert Manne in the who spent over a fortnight in the which had been made by cabinet to October 1984 issue of Quadrant.6 witness box. The Commission’s cut off Combe’s access, even after The first problem was preparation. hearings lasted 4½ months over a Ivanov had been expelled. Hawke Any advocate getting up a case wants cold Canberra winter. had completely mastered the facts to be in the position of knowing more The purpose of cross-examination beforehand and was a brilliant about the facts than anybody else in is to extract information helpful witness; he had had much courtroom the courtroom. A Royal Commission or favourable to your case from experience, having been the ACTU is no exception. I, the last briefed, witnesses who are frequently hostile, advocate in many national wage case had only some three weeks in all a process which often involves hearings. Hawke had raised to a high to get ready. A number of the ASIO trying to make an unwilling witness art the ability to avoid answering witnesses came out to our house in give evidence damaging, hurtful a difficult question, frequently by East Malvern in the evening, wanting or embarrassing to the witness answering a different question of absolute confidentiality. One night I or those who called him. One of his own choosing; and he repeatedly said to my wife, Jenny, at dinner that I the rules of cross-examination is employed these tactics to prevent had some people coming to the house usually not to ask a question unless Barker, his principal opponent, from who insisted on complete secrecy you have a very good idea what the pursuing him on areas of difficulty. and that I wanted her to keep our answer will be. In court, counsel Senator Evans was also a difficult four children away from my study can control the witness, and if the witness, in his case more because at the front. Jenny told the children witness strays from the question, one of the length of his answers. Bill they were to keep away from my can stop the answer. When trying Hayden’s evidence was interesting study, and that I did not want to be to get a particular answer from a because his understandable disturbed. The elder three, showing difficult witness, one method is to resentment at his treatment by the

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ALP was still simmering, which made him potentially explosive, and his answers unpredictable. In summary, the NIS ministers all accepted that Ivanov was a KGB officer attempting the cultivation of Combe, and that ASIO was acting properly in reporting what the organisation had learnt to the Prime Minister and the NIS committee. As David Marr put it in his book:8 The government’s difficulty was that the action it took against Combe was not recommended by security, security was not consulted on it, and it cut across ASIO’s need for unobtrusive surveillance of the lobbyist. ASIO had come to the prime minster and the NIS ministers with no proposition for the punishment of Combe.

Marr, a strong opponent of the Government and ASIO, and Combe’s chief supporter in the press gallery, said of the Prime Minister’s evidence that:9 There is nothing that wittingly I did was a mole inside ASIO. I asked or said within the Soviet Union which Combe what he thought of this Hawke’s performance was the turning could be viewed as an impropriety or and he said that he regarded the point of the Commission. He gave the which could be seen by any reasonable possibility with amusement. He said government’s case precisely the boost person to reflect any discredit or that he felt no patriotic obligation at intended. The papers were still asking embarrassment upon … my country. all even to report to anyone that ASIO “What has Combe done?” but they had, in his view, been penetrated carried also accounts of a supremely But Combe admitted in cross- by the KGB. The implications were, self-confident prime minister, and examination that both in Moscow as one of his callers said on the the courage he displayed in feeling and with Ivanov he had been telephone, “enormous”, to which compelled to cut off his old friend. doing his best to discredit the then Combe’s response was, “So, it is a Government of Australia and he The next witness was Combe himself, great story.” The difficulty for Combe made no apology about his attitudes who was cross-examined for a was, of course, that Ivanov’s warning to non-Labor Governments in fortnight. Combe had not been very was either genuine and truthful, Australia. forthcoming in putting his position to with very serious implications, or a He might have avoided a great deal the Government about what he had false and cunning attempt to shift of trouble if he had said frankly that discussed with his Russian contacts, their relationship into clandestinity. he proposed to make a great deal of or the help he had offered – for Either way, Combe’s case was in money out of Russian trade through example to overturn the sanctions difficulty. Many in the press gallery his contact with Ivanov, leading to that Australia then supported. Combe found it genuinely amusing that I had work possibly as a consultant with or agreed in the witness box that he suggested Combe had a patriotic duty on commission for the Russian Trade was trying to overturn sanctions (it to report that he thought ASIO had Ministry, all of which would have illustration by guy shield was indeed ALP policy) and that in been penetrated by the KGB. been entirely legitimate. conversations with Soviet officials he The judge’s report, after the A point of particular significance had been highly critical of the then evidence was finished, cleared all in Combe’s evidence was Ivanov’s Liberal Government and its Prime parties. He found Combe was not proposal for clandestinity. It was put Minister, Malcolm Fraser. a spy, not guilty of any crime nor to Combe that if Ivanov’s warning In his statement to the any breach of national security. He was genuine, it must have led him Government, explaining his position, found that Ivanov was an active KGB to the view that ASIO had been Combe had said of his trip to Moscow agent, cultivating Combe for illicit penetrated by the KGB, that there that:10 purposes: to have him act wittingly or

34 VBN VBN 35 unwittingly as an agent of influence.11 Treholt was being spoken of as a notes on the negotiations as well He found that Ivanov had in Combe future Foreign Minister of Norway. as secret Norwegian State papers, as promising a target “as he was ever In January 1984 he was arrested, and the talks ended in what many news and views news likely to get”. The judge cleared ASIO, charged with espionage on behalf believed to be major concessions saying it had adopted a cautious of the KGB, and described as the being made by the Norwegians and objective attitude, and that the greatest traitor to Norway since in favour of the Soviets. Treholt’s Director-General’s presentation . In 1985 he was next step up the ladder came when to the Prime Minister had been sentenced to 20 years in prison for he was appointed to the UN as a adequate, objective and fair. He also high and espionage and member of the Norwegian delegation. cleared the Government, concluding served a prison sentence until being Before setting out he was called to that the Government was justified pardoned by a Labour Government Helsinki to meet Titov and received in deciding that the relationship in 1992. After his release from prison, contacting and other instructions had serious implications for he settled in Russia, later in Cyprus. from New York. He was told to leave national security. Treholt’s articles against the CIA notes in newspapers for his new Combe has done very well since. had attracted the attention of the KGB contact or even in automobile Shortly after the Commission ended, KGB residency in Oslo, and he was exhausts. His later explanation he was given a position as Australian invited to an embassy cocktail party, for doing this was simply that he Trade Commissioner to Western followed by a long series of contacts had only been trying “to improve Canada based in Vancouver. He with Russians over long lunches. Norwegian-Soviet relations”. Treholt is now a successful businessman, The Russians flattered the young was arrested in 1984 before boarding having been for some time a director Norwegian into believing he could a plane to Vienna, and his briefcase of Southcorp Wines, and Evans & serve Norwegian interests by bridge- was then found to contain a large Tate Limited. He has an unblemished building between the East and West. number of classified documents reputation. The KGB then offered him over- from the Foreign Affairs Ministry. Those who doubt whether ASIO generous payment for performing Over the period 1974 to 1983 Treholt was entitled to have concerns about a pedestrian task, a well-worn had in fact provided thousands of Ivanov’s interest in David Combe intelligence tactic and recognised documents to his KGB controllers should consider the eerily similar as a standard procedure used in and the damage in terms of Western case of Arne Treholt. Treholt was a recruitment operations by the KGB. security in Europe had been member of the Norwegian Labour His principal contact for the previous incalculable.12 Party and worked as a journalist for three years had been one Yefgeniy All of this underlines the extent the national daily Arbeiderbladet. Belyayev. Belyayev introduced Treholt to which an agent of influence with His father had been Minister to a new contact, General Gennadiy good access may be useful to and for Agriculture in the Labour Titov, the KGB resident in Oslo. Titov used by a foreign power. Government and Treholt read proposed to Treholt that in future The question remains whether political science at university. He had their relationship should be much the Government was entitled to cut made a name for himself in the anti- more low profile, and that he should off Combe’s access without warning Vietnam war movement in Norway, never write Titov’s name in his diary, him, and after Ivanov had been his ideological leanings were known nor phone him at the Soviet Embassy, expelled. Justice Hope found that to be strongly anti-American and, in the excuse for these measures being the Government had acted properly. the early 1970s, he produced several Titov’s allegedly busy program. Combe himself said that even after articles attacking the CIA. He became The KGB then began to develop the Director-General explained Political Secretary to the Commerce Treholt’s access and talents to their ASIO’s case to him, he still did Minister, , before own ends. Treholt had considerable not accept that Ivanov had been Evensen became Deputy Foreign access to intelligence and people, cultivating him with any sinister Minister in the Bureau of Maritime being a consultant to the Foreign motive. Affairs from 1976 to 1978. Policy Institute of Norway. In 1977 Notwithstanding Justice Hope’s rom 1979 to 1982 Treholt was the USSR and Norway negotiated a full endorsement of ASIO and its connected to the Norwegian sensitive treaty covering disputed actions, the press remained militantly UN delegation in New York coastal waters, which had been the antagonistic. Journalists such as Fas an Embassy Councillor. During cause of considerable ill-feeling Paul Malone of The Australian the years 1982 to 1983 he studied at between the two countries. Evensen Financial Review, and David Marr the Norwegian Joint Staff College. was the Minister responsible for the and Paul Kelly of The Morning He was also a department head of Norwegian side of the negotiations, Herald, took the view that Combe division in the Norwegian Ministry and his principal advisor was Treholt. had done nothing wrong and had of Foreign Affairs from 1983. In 1983 Treholt showed Titov in Moscow his been condemned for what he might

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6. Robert Manne, “David and Goliath, have done. Paul Kelly wrote of the everything has changed. But the Media and Mr Combe”, Quadrant, Government’s ruthless cynicism and President Putin was a senior officer October 1984, 22–39. brutality. Michelle Grattan wrote in the KGB before he retired to enter 7. When John Howard gave evidence of the seven-month destruction of politics, and he appears determinedly to the Australian Wheat Board Combe. Geoffrey Barker in The Age on the path to restoring Russia to Commission, no counsel were permitted to cross-examine. wrote of ASIO’s talent for investing the position of strength and East seemingly fatuous remarks with European hegemony it enjoyed in the 8. Marr, op cit, p 257. conspiratorial significance and of mid-20th century. Many believe that 9. Ibid, p 303. ASIO’s paranoiac world view. Laurie Russia remains ruled by former KGB 10. Ibid, p 319. Oakes was throughout a very close officers, or the Siloviki, as they are 11. The Official History of ASIO, 1975- friend of Combe. called.13 Arne Treholt’s story suggests 89, by John Blaxland and Rhys These journalists presumably that the notion of the “agent of Crawley, Vol 111, 2016, makes detailed reference to the Combe affair and the saw nothing illegitimate or sinister influence” still has a general relevance Commission at 245ff. At 259, it reports in a KGB officer suggesting to an today (not least to American and that at Ivanov’s farewell party at the influential Australian citizen with Australian politicians) and that those Soviet Embassy, the KGB station chief, Lev Koshlyakov, was furious with unrivalled access to Government, who deal with foreign powers should Ivanov for having gone too far too that he attend meetings designed to bear firmly in mind what happened to soon. erode ASIO surveillance, and nothing both Treholt and David Combe. 12. Much of the information here wrong in that citizen apparently 1. Communist Party of the Soviet Union. regarding Treholt is taken from the acceding to—certainly not rejecting— excellent book by Harvey Barnett, 2. The military intelligence arm of the Tale of the Scorpion, Allen & Unwin, such a suggestion. Nor did most Russian Federation. 1988, pp 62–69. The details of this KGB of them see anything wrong—or operation can be found in an article by 3. David Marr, The Ivanov Trail, Thomas William Shawcross in The Spectator other than amusing—in the KGB Nelson Australia, 1984, 209-210. of 7 June 1986, later reprinted in having a mole inside ASIO, nor, it 4. Ibid, pp 230–231. Quadrant in September 1986. would appear, would they feel any 5. Lindy Chamberlain was three years 13. The KGB was disbanded in 1995, obligation to report the fact to anyone later found innocent and acquitted, and President Yeltsin substituted the in authority. after her appeal to the High Court FSB (Federal Security Service of the Many might think that after had been rejected and after a Royal Russian Federation). Commission had been conducted by Mikhail Gorbachev’s reforms, the Hon Trevor Morling QC.

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36 VBN VBN 37 20131101 Vic Bar News Blackwood Family Lawyers.indd 1 11/1/2013 11:53:53 AM The Judicial College of Victoria news and views news Master of its fate

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o you ever wonder how a fellow officers in their transition from practice to the bench. lawyer transforms one day into In its first 15 years the College has flourished and a judicial officer? Sometime, branched out to provide support and learning to the wider shortly after the ceremonial legal profession. The flagship for this outreach are the sitting, judges attend their first bench books, including the Criminal Charge Book, and judicial education program on the sentencing, criminal procedure, evidence, and human one of the upper levels of the William Cooper Justice rights manuals — all of which have become indispensable Centre. Here there is a red brick classroom with inspiring to judges and practitioners alike. justice themed quotes blazoned on the walls from the The bench books are compiled by a small team of four likes of Nelson Mandela and Milan Kundera. researchers, and supervised by judicial editorial committees. DIn The Republic Glaucon said “it would be absurd that a Perhaps the most significant of these is the Criminal guardian should need a guard.” When the Judicial College Charge Book. Prior to its development and introduction, of Victoria was established in 2002 the prevailing attitude judges were reliant on Judge Kelly’s charge book to cobble of the judiciary was much like Glaucon’s. The oath of together jury directions. Given the legislature’s proclivity judicial office requires judges to discharge their duties for amending and changing the elements of sexual offences, according to law, to the best of their knowledge and ability, and the occasional High Court decision like Getachew, parts without fear, favour or affection. Why should the judiciary of the Charge Book are a palimpsest. Its contribution to the need a College? administration of justice cannot be underestimated. Much has changed since then. One notable exception Then there is the Sentencing Manual. With the 900 to that attitude was the Chair of the College for the last sentences in the higher courts (not to mention the tens 13 years, the Honourable Chief Justice Marilyn Warren of thousands of sentences in the Magistrates’ Court) AC. Given the motto of her Honour’s almer mater was handed down every year in this State, and the dramatic ancora imparo, it is unsurprising that the Chief Justice changes to the sentencing landscape effected by Court has been a genuine enthusiast for judicial education, of Appeal’s explanation of CCOs in Boulton, keeping the and recognises that implicit in the oath is a commitment Sentencing Manual up to date must look like a scene out to the acquisition of and continual improvement of the of the sorcerer’s apprentice. Edited by Patrick Tehan QC, competencies required for judicial work. the Sentencing Manual’s summaries of recent cases have The Judicial College is an important part of the Chief become even more important in the prosecutor’s tool kit Justice’s legacy, a legacy that will be the subject of much since the High Court handed down its decision in Barbaro comment given her retirement in October this year. — which prevents prosecutors making a submission on Without wishing to embark on premature hagiography, sentencing range. her Honour has done so much for the College since The Children’s Court Bench book supplements retired its inception that she has almost become the patron of Magistrate Peter Power’s important work in this area. For judicial education. As CEO Samantha Burchell observes, the novice Charter barrister, the Charter of Human Rights her Honour’s authentic, passionate advocacy for learning Bench Book, edited by Justice McLeish, no less, is much and leadership will be missed. easier to understand than Momcilovic. The College was established as a means of supporting But apart from what would appear to the barrister to members of the Judiciary with peer education. It came be the College’s core business of ensuring that judges into being in 2002 with bi-partisan support under the have a hymn sheet to sing from that makes jury directions Judicial College of Victoria Act 2001 as an initiative of the appeal proof — the College does much more for the well then Attorney-General, the Honourable Rob Hulls. being of the judiciary that is invisible to the public. The College Board comprises the heads of the six The College has taken an interdisciplinary approach. Victorian jurisdictions, and two Governor in Council It provides judicial education in a range of diverse appointments. The purpose of the College is to ensure areas including judgment writing and learning how to judicial officers in all Victorian jurisdictions are up-to- date be culturally sensitive in the court room. At one end of with the latest developments in the law and to assist them the spectrum, the likes of Helen Garner, Chris Wallace- to refine their skills as judges. It also supports new judicial Crabbe AM, Gideon Haigh, and Jamie Button have taught

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The ambition of the College is nothing less than to be akin to a judicial university

judges how to write judicial prose. understand how to lead and how to At the other end of the spectrum, strategize. They need to be familiar in 2015, the College teamed up with with concepts of governance, finance Carly Schrever, a PhD candidate and organisational risk, which might from the not be part of their core skill set. The School in Psychological Sciences, to College offers programs to assist investigate what promotes well-being judges to develop such skills. in the judicial environment. The College teaches not just the Judges are subject to stress, law, but skills-based courses in oppressive caseloads, intense lecture-style seminars, workshops destiny: “Men at some time are scrutiny, professional isolation, and day long programs. Flicking masters of their fates; The fault, dear and traumatic material like child through the College ‘Prospectus’ Brutus, is not in our stars, but in murder and exploitation imagery. one can find courses on ‘Latin: the ourselves, that we are underlings”. Increasingly it is acknowledged that Language of the Law’; ‘Views from As an organization, the College must judges, just like the rest of us, can the Jury Box’; ‘Cultural Sensitivity be decisive about its purpose as it be subject to stress, depression, and in the Court Room’; ‘A Visit to steps into the future. vicarious trauma. Wathaurong country’; an interactive The ambition of the College is The education the College provides solution-focused program on judicial nothing less than to be akin to a is for the most part judge led. well-being; a number of programs judicial university: expanding its However, the College works with dealing with decision making and scope to deliver bespoke education other parts of the profession, such court craft, and a six day orientation for other legal organisations in as Victorian Police, Legal Aid, case program for newly appointed Australia and abroad; seeking workers and court staff, and with Supreme and County Court judges. appropriate value from its its the Academy. It also teaches judges Its schedule of programs to be intellectual property; acting on oral decision skills, how to manage delivered in 2017 is full. high priority education needs like their court rooms, and how to use 2017 sees the Judicial College family violence, youth justice and and understand new technologies launch its Strategic Statement for bail; exploring empirical research effectively. The “Court Craft 360 the next decade. The theme for the into issues such as judicial well- Degree Feedback” program provides plan is “Masters of our Fate.” The being; and deepening partnerships for constructive feedback from Shakespearean reference wasn’t with the judiciary, academia, and counsel and peers. chosen to incite murderous rage in policy makers. The work of the College is puisne judges because the Court of If the last 15 years are anything concerned not just with the law, but Appeal bestrides the narrow world to go by, the College is destined to with the other significant roles that like a colossus, whilst they walk become an institution to be cherished judges must play: for instance as under their huge legs like underlings, for supporting the ongoing education leaders and managers. Increasingly, and peep about to find themselves in and good health of the independent judges today have roles in the dishonorable graves — but because judiciary, who in turn guarantee the administration of courts and must it invokes the universal theme of rule of law itself.

38 VBN VBN 39 news and views 40 VBN news and views Direct questions and leading questions

ANDREW PALMER AND GEORGE HAMPEL*

ew rules are as likely to cause the at the end of the Evidence Act 2008. This definition of inexperienced barrister more anxiety “leading question” informs both s 37, which prohibits the than the rule against leading questions. use of leading questions in examination in chief or in re- If an opponent persistently objects that examination (subject to a handful of exceptions including counsel is leading, counsel may become questions that relate to introductory matters or matters so unsettled as to abandon any attempt that are not in dispute); and s 42, which permits the use of to elicit the evidence. To avoid this happening, counsel leading questions in cross-examination (unless the court may reduce his or her examination in chief to an endless disallows it). Frepetition of the one question to which they are sure their The definition in the Dictionary recognises two types of opponent will never object: “What happened next?” leading question: While this question may be safe, it has the very serious Those that directly or indirectly suggest a particular answer to defect of shifting responsibility for the examination in the question; and chief from counsel (to whom it belongs) to the witness (to whom it does not). In any given moment, myriad things Those that assume a fact which is in dispute in the proceeding occur: how is the witness to know which of these counsel and about which the witness has not yet given evidence. is asking about? Of course, what counsel usually means Whether a question is leading will depend on the when he or she asks a witness such a question is “Could issues, the context and the wording of the question. you please tell the court about the next thing that is For example, it would not ordinarily be considered a mentioned in your statement?” leading question to ask a witness testifying about an Experienced witnesses, such as police officers, will event that occurred on a weekday in William Street usually understand that this is what counsel wants, and “What were you wearing”, without first establishing will be able to give their evidence without the need for that the witness was wearing something. But if the any real guidance. But inexperienced witnesses are witness was testifying about events that occurred in unlikely to know which details are important and which a nudist colony, it might well be. On the other hand, it should be left out. They need counsel’s help to tell their would usually be leading for counsel to ask “What were story. Questions like “What happened next” give them no you wearing on your head” unless counsel had first help at all. asked “Were you wearing anything on your head?” Examination of the “What happened next” type usually Of the two types of question described in the indicates one or other of two things. Either counsel is under Evidence Act definition, it is the first with which we prepared, and therefore unable to guide the witness through are primarily concerned. The test, then, is whether the his or her story because counsel does not know what that question suggests a particular answer. Importantly, it story is or how to tell it. Or counsel does not appreciate the is not determined by whether or not the question is distinction between a leading question – which is prohibited capable of a “yes/no” answer. Of course, most leading – and a direct question – which is not. questions can be answered in that way; but not every “Direct questions” are, in Glissan’s words, questions that question that can be so answered is a leading question. “draw the witness’ attention to the precise matter about For example, in a case where a witness has testified which you wish him or her to give evidence, but fall short that the accused punched him in the face, it is not of suggesting the answer”. There is no rule against direct leading to ask the witness “Did that hurt” (followed, if questions: indeed, it is impossible to conduct an effective the answer is “Yes”, with “How much [or where] did examination in chief without them. By contrast, using it hurt”). However, it would be leading to instead ask leading questions to elicit evidence about contested facts the witness “Did that hurt a lot”. And in a case where should be avoided even if one’s opponent doesn’t object: a witness has testified about words that someone said illustration by guy shield this is because evidence elicited in that way has very little to them, it is not leading to ask “How did those words probative value. What then is the difference between make you feel?” However, it would be leading to direct and leading questions? ask “Did that make you feel alarmed [or threatened, When is a question leading? or upset]?” Similarly, in a case where a witness has testified that The rule against leading questions prohibits suggestion. she saw a vehicle entering an intersection that was So much is confirmed by the definition in the Dictionary controlled by traffic lights just before the vehicle collided

VBN 41 Flustered and floundering, counsel may retreat ladder. After a brief digression into into questions so convoluted or oblique that they other matters, the prosecutor asked:

news and views news leave the witness clueless as to what information As I understood your evidence, that is being sought. made your task difficult, you said? Yes. with another, it is not leading to ask to what information is being sought. “Did you see what colour the traffic Unable to elicit the evidence, counsel DEFENCE COUNSEL: No, that’s not light was at the time that the vehicle may simply give up and “move on” to what he said, Your Honour, and entered the intersection” (followed, the next topic. perhaps if my friend doesn’t lead. if the answer is “Yes”, with “What PROSECUTOR: All right. There was colour was it?”). However, it would Anatomy of an examination some difficulty because of bracing? be leading to ask “Was the traffic We can see these dynamics being light red?” played out in the transcript of an Yep. And again, in a case where a occupational health and safety DEFENCE COUNSEL: Again, please witness has identified the accused prosecution. We have taken some don’t lead, objection, Your Honour. as the person he saw in a particular small liberties with the transcript location, it is not leading to ask “Had for the sake of succinctness. There The first question was vulnerable you ever met the accused before” is nothing particularly remarkable to objection because it involved (followed by questions that elicit the about what occurred in this case: we a characterisation or conclusion details and circumstances of previous have both seen scenes such as these about what the witness had meetings). However, it would be replicated on numerous occasions. previously said. No doubt this leading to ask “Had you previously The prosecution related to an was for the purpose of directing met the accused on a number of incident in which an employee fell the witness’ attention back to his occasions?”, or “Did you know the from a roof and suffered serious previous evidence in order to then accused very well?”, or “Had you injuries. During the prosecutor’s elicit further detail. As it happened, previously met the accused while examination in chief of the employee, the court agreed that counsel’s you were both students at defence counsel repeatedly objected characterisation of what the witness Melbourne University?” on the grounds that the prosecutor had said was accurate: the witness The non-leading questions in these was leading. Some objections were had been saying that there was examples direct the witness’ attention soundly based, such as the objection some difficulty in carrying out to the matter of interest, but do so to the following question: his work because of the bracing. without suggesting a particular answer. Nevertheless, it probably would And you’ve earlier given evidence about The leading questions, by contrast, have been better for counsel to seeing the safe work method statement contain details that go beyond what have first reminded the witness of [SWMS]? is needed to direct the witness to the the effect of the bracing (using the matter of interest, and so put words in Yes. words the witness had previously the witness’ mouth. This diminishes used), and then asked the witness Is that the time that you say you saw the value of the witness’ testimony. what impact the bracing had on the SWMS? It is also unnecessary: once the his ability to carry out his work, witness’ attention has been directed This is a leading question, because or even whether the bracing made to the matter of interest, it should it suggests to the witness that he it difficult for him to carry out his be relatively easy to elicit the saw the SWMS at a specific time. work. desired detail through the use Instead, having confirmed that the The objections continued. of non-leading questions. witness had previously seen the Shortly after the passage above, A failure to appreciate the SWMS, counsel should have asked the prosecutor attempted to elicit distinction between direct and the witness a question along the evidence from the employee about leading questions can expose lines of “When did you [first] see the discussions between him and his counsel to objections that have the SWMS?” supervisor on the day of the incident: effect – often no doubt intended – of Other objections were less well- Did you have any discussion with [the undermining counsel’s confidence founded. For example, the employee supervisor] upon arrival on [the day of in his or her capacity to elicit the gave evidence that due to there the incident] at the site? necessary evidence. Flustered and being bracing on the building under floundering, counsel may retreat into construction, he was unable to reach DEFENCE COUNSEL: Leading. questions so convoluted or oblique from inside the house to install PROSECUTOR: How did you know that they leave the witness clueless as flashing; nor could he set up his what you needed to do?

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Because we were there from [four days was blocked by objections, shifted And did you notice anything at the site? prior to the incident]. to a new topic, no doubt trying I don’t understand the question at all. to come back at the issue from a And how - did you see [the supervisor] different direction. Counsel asked The witness would have to have - - - “What was your understanding been a mind reader to understand DEFENCE COUNSEL: Objection, this is as to safety measures as to any of that counsel was asking him about leading as well, Your Honour. the sites that you attended?” But scaffolding. Not surprisingly, therefore, defence counsel objected to this no evidence about scaffolding was PROSECUTOR: You’ve attended there question too, on the grounds that it adduced. It is worth noting by the way, with [the supervisor]? had not been covered in the witness’ that counsel abandoned this line of Yes. statements. The court later ruled that questioning purely on the basis of the in examining a witness, counsel is not objection, without requiring the court Did you see him when you - did you see prohibited from eliciting details and to rule whether or not the objection him prior to the incident? explanations that flesh out the bare should be upheld. It needs hardly DEFENCE COUNSEL: Your Honour, bones of a witness’ statement; and if to be said that it is for the court to objection, same objection, it’s a leading that leads to the disclosure of matters determine whether one’s questions question. that require opposing counsel to seek involve impermissible leading, not instructions, then opposing counsel one’s opponent! Actually, it was not leading to ask can be given time to do so. In teaching advocacy, when we find the witness whether he had seen But at this point, with the path students asking questions such as the supervisor at the site on the to the second topic also seemingly these, we ask counsel “What do you day of the incident but prior to blocked by objection, counsel tried a want to know?” In a case such as this, its occurrence (although to be third path, asking the employee about counsel will invariably reply “Whether completely safe, counsel might have scaffolding. With the prosecutor’s the witness saw any scaffolding”. “So taken a slightly longer path, first confidence no doubt affected by the ask that”, we will say. “Did you see any asking “Was anyone else at the site frequent (and frequently ill-founded) scaffolding at the site” is not a leading when you arrived”, followed, if the objections, counsel moved hesitantly question! answer was “Yes”, with “Who was at towards the topic: the site when you arrived?”) Conclusion Given that the witness had not yet Did you make any observations as to There is an important distinction given evidence that the supervisor the site? between a direct question and a was there when he arrived, it may Did I make any observations? leading question. Direct questions are have been a leading question (of not only permitted, but are one of the the second, not the first, type) to Observations of the actual site? cornerstones of effective examination ask the witness whether he had Well, I was there, so of course I saw in chief. Like all advocacy skills, any discussions with the supervisor the site. eliciting and controlling evidence on arrival. However, this problem in chief by directed non-leading could easily have been rectified by Did you make any observations as to questions is a skill that must be reversing the order of the questions: any scaffolding? understood and then practised. First ask the witness whether he saw The question could have been better 1. * Andrew Palmer is a member of the the supervisor at the site on the day worded: no-one, apart from police Victorian Bar, a Principal Fellow of the incident before the incident officers, “makes observations”. They of , and the Director of Trial Advocacy in the happened; see or hear things. So we would Victorian Bar Readers’ Course. have recommended a more direct The Hon George Hampel AM QC Follow up with a question about when question: “Did you see any scaffolding is a former Supreme Court Judge, or where he saw the supervisor; founding Chairman of the Australian at the site?” But unobjectionable as Advocacy Institute, and Professor of If the answer was “on arrival”, then counsel’s question was, the same Trial Practice and Advocacy at Monash follow up with a question about objection was taken: “Objection, University. whether he had any discussions with leading”. So counsel retreated further, 2. J L Glissan, Advocacy in Practice (4th the supervisor; and asking a question so vague that it left ed, Butterworths, 2005), [4.7.1], page 61. the witness clueless as to what he Finally elicit what was presumably the was being asked about: 3. Ibid crucial piece of evidence: what was said 4. See G Hampel, A Ainslie-Wallace, E during those discussions. Did you observe the site? Brimer and R Kune, Advocacy Manual (2nd ed, Australian Advocacy Institute, Instead, as can often happen, counsel Yeah, I was there, I saw the site. 2016), Chapter 5. feeling that the path to this topic

42 VBN VBN 43 news and views news Milky Way Dreaming

KRISTINE HANSCOMBE

n May 2017, I was briefed in dreaming and the keeper of the law declared the the Royal Commission into the work to be both right and strong, thus recognising Detention of Children in the and accommodating new and old influences. This Northern Territory. The brief history of dispute resolution by the law makes the involved two trips to Darwin, each work especially suited to this building. of some days’ duration. I had never The strength of the work has been translated been to Darwin before, so in particular had into this mosaic of Venetian glass executed by never seen the Supreme Court building. Those Joe Attard and David Jack of Melbourne Mural familiar with the building will know that it Studios. Venetian glass was chosen for its unique contains beautiful and evocative pieces of art, qualities of colour, depth and durability. A display many by Aboriginal artists. I in the coffee lounge [on the ground floor of the One work in particular was so astonishing court building] explains the processes involved. The that I thought others might like to see it, mosaic is best viewed from the level above. though some at our Bar are probably already familiar with it, and I have learned that it has The mosaic glitters and somehow gives a real been the subject of scholarly writing. But for illusion of looking up into the night sky. I think those who don’t know it, the work is a mosaic the effect is the result of the many different on the ground floor of the building, which can colours used. Each day I found it hard to be viewed from a gallery on the fourth floor come away from it to attend the hearing, and above. It is square, each side measuring about whenever we were stood down, I spent what eight metres. The mosaic shows the Milky Way time I could steal from my work gazing down and the constellation that Western astronomy from the fourth floor. knows as the Pleiades. There is also a display I tried to find a print or other reproduction showing the construction of the piece, together of it. To my surprise there seemed not to be one with information about its meaning and the anywhere in the city. I ended up asking at the artist, Norah Napaljarri. That information reads desk of the Northern Territory Library, which is as follows: housed in the Parliament building, in the same precinct as the court. The person on duty at the YIWARRA JUKURRPA - THE MILKY WAY desk also did not know of any such material, DREAMING but in a stroke of luck for me, volunteered that This design depicts the dreamtime legend of the he is a keen amateur photographer and said seven Napaljarri sisters who travelled through that he would send some photos. And he did, Walpiri country pursued by a lusty Jakamarra man. as you can see, including two images from the Much of the story is restricted by tribal law but the construction display, one of which is of a small sisters, having come to the very end of their country sample panel. The close up images and the and in order to escape, turned into fire and put sample panel show the range of colours used. themselves in the heavens as stars. The photos are a poor substitute for seeing the work itself, but I hope that they will give some The Jakamarra man found out what they had done impression of the sheer beauty and indeed and he too turned himself into a star to continue his majesty of the piece. pursuit. He is however the morning star, unable to I reproduce the images by permission of pursue the seven sisters in the night sky. the Supreme Court of the Northern Territory, The artist, Norah Napaljarri Nelson of Yuendumu, which holds the copyright in the work, and NT, created uproar among the many artists of the of Michael Barritt, the kind volunteer. But of region when she broke away from the meticulous course, the moral right of attribution remains dot art tradition to express the dreaming in a free with the artist, Ms Norah Nelson, who has form bordering on the abstract. The ‘dispute’ was given a gift of great beauty to all who come resolved when the human manifestation of the into the court building.

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Innovate, Regulate: Michael McGarvie, Victorian Legal Services Commissioner

BY GEORGINA COSTELLO AND JESSE RUDD

s barristers, we would and William Streets, is a welcoming place. It has an prefer not to receive a attractive new fit out, a few floors up in a new building. call from the office The facilities are open-plan, light-filled and mindfully of the Legal Services designed. Since McGarvie arrived on the scene, iPads Commissioner regarding have been distributed to staff, and practising certificate a complaint about our registration has gone on line. In the conference room services. Bar News recently interviewed the man behind where we met, McGarvie deftly slid a wall panel to one such calls - Victoria’s Legal Services Commissioner, side to reveal coffee and tea facilities. He then put on the Michael McGarvie. kettle and made us a cup of tea, without having to burden It may surprise readers to learn that the Legal Services a staff member to bring us one. His friendly, transparent Commissioner’sA office, on the south west corner of Bourke and unaffected manner matched the feel of his office, and

46 VBN news and views

A major achievement under McGarvie’s leadership has been a decrease in the number of outstanding complaints.

and distribution of significant public VCAT’s Legal Practice List, and purpose funds including revenue the costs of the Bar’s and the Law from interest on lawyers’ trust Institute’s regulatory and non- account deposits, investments and regulatory functions, such as the practising certificate fees, and it also Bar’s management of legal practising manages the Fidelity Fund. certificates for barristers, education At the time McGarvie took over and pro-bono services. The Legal as Commissioner in 2009, the Services Board is one of few public atmosphere at the office was strained. service functions which is a net A scathing Ombudsman report funder to government. from 2008-2009 had stunned the A major achievement under organisation and exposed the need McGarvie’s leadership has been for changes to be made. An Acting a decrease in the number of Commissioner was needed to steer outstanding complaints - down from the ship until a new Commissioner around 2,000 in 2009 to 517 in 2013. could be found. McGarvie took When McGarvie was appointed the initial position out of a sense Legal Services Commissioner and of duty rather than desire. He had CEO of the Legal Services Board in been CEO of the Supreme Court of 2009, each of the organisation’s 25 Victoria for some years at the time. investigators had around 110 open However, within just a few weeks of cases of complaints against Victorian being appointed to the temporary lawyers. Now, some eight years later, role, he decided to apply for the job there are around 12 open cases per permanently. To his surprise, the investigator, for the same number job was interesting, and he came to of investigators. As explained below, appreciate the importance of the this success is the result of a number role in sorting out conflicts between of important initiatives introduced lawyers and clients. He also glimpsed under McGarvie’s watch which, in the different dimensions of the role, practical terms, have meant that including the capacity to manage matters that may cause considerable and distribute monetary grants to anxiety to practitioners and distress the tone of its functioning under promote justice in Victoria. to clients are brought to an end much his leadership. Since 2004, the Legal Services more efficiently. The role of the Legal Services Board has given over $32 million In response to the overwhelming Commissioner includes receiving in grants to important causes number of open files that greeted him and managing complaints against that address unmet needs for on appointment, one of the first things legal practitioners; working with the legal services. Under McGarvie’s McGarvie did as Commissioner was legal profession to ensure that legal leadership, the Board implemented to call clerks at the Victorian Bar and services in Victoria meet the highest strategies to grow the Public Purpose ask them to send over junior barristers. standards of excellence; and assisting Fund to around $180 million, These barristers were briefed to sit in practitioners in understanding, including by switching banks to earn the offices of the Commissioner and managing and meeting consumer more interest. The Board has funded wade through boxes and boxes of open expectations. The Commissioner also the costs of putting the Fitzroy Legal files in order to help triage them. By educates the community about legal Service Handbook online, funded a asking the junior barristers to come issues and the rights and obligations Skype service for women in prison to the Legal Services Commissioner’s that flow from the client-lawyer to get legal advice, and provided office, McGarvie avoided the cost relationship. As CEO of the Legal funding of around $25-30 million a of photocopying files and preparing Services Board, the Commissioner is year to Victoria Legal Aid. The Board briefs. For several junior barristers also involved in funds management has also provided significant funding at our Bar, the work presented and distribution. The Legal Services to the Victorian Law Foundation, the an opportunity for steady and Board oversees the management Victorian Law Reform Commission, interesting work.

46 VBN VBN 47 news and views news

Once this initial work of triaging complaints were about poor bedside for serious cases and, as McGarvie cases had occurred, McGarvie manner, servicing issues, delay, poor says, they were using “a hammer to implemented a brilliant idea: the communication and confusion over crack a nut in relation to non-serious Commissioner hired a number of 30 costs. matters”. Today, under his leadership, and 40-year veteran lawyers to be Before McGarvie took over, the Legal Services Commission first-line responders to complaints the previous system treated all applies a mediation/conciliation against lawyers in non-serious cases. complaints in a flat manner. For approach to the majority of cases. McGarvie had observed that most example, complaints about rudeness One of McGarvie’s experienced complaints were not about serious were investigated in the same conciliators rings up the complainant matters - such as fraud, money manner as much more serious to see what the complaint is all laundering, dishonest conduct or allegations. The result was both that about. Then the conciliator puts in “a misconduct. Rather, 95 percent of insufficient resources were available friendly phone call” to the solicitor to discuss the complaint. Usually the next step is that the complainant and solicitor participates in mediation by phone or sometimes attends a conciliation at the Legal Services Commissioner’s office. Drawing on his previous experience as a solicitor in private practice, McGarvie implemented this complaints process to emulate the approach that a managing partner of an established law firm would take. He knew from his own experience as a longstanding personal injuries litigation partner at Holding Redlich that a pragmatic managing partner listens to unhappy clients

48 VBN news and views

to understand what the problem is in non-serious matters has not seen providing grants to fund important and find a solution. In that manner, him shy away from visiting serious justice projects”. Throughout his law firms with such an approach consequences upon lawyers who time, McGarvie has had “freedom often avoid less serious complaints have done the wrong thing. He has and help from an understanding being made to the Legal Services acted to vary, suspend or cancel and supportive Board to join forces Commissioner in the first place. practising certificates, and, in several with a determined reforming In endeavouring to emulate this cases, to apply for practitioners to be Commissioner to apply new ways of approach, the conciliators hired by struck-off. During McGarvie’s time as doing things to advantage the needs McGarvie are experienced legal Commissioner, several solicitors have of legal consumers and leave good professionals who are credible and been struck-off. The organisation hardworking practitioners alone”. good at dealing with people. The has also worked closely with The Legal Services Board is a non- solutions negotiated through the agencies such as the Office of Public executive one. Four members are conciliation process may include an Prosecutions and the Independent appointed by Cabinet and three are apology, a promise of better service, Broad-based Anti-corruption elected by the profession. and a refund or reduction of fees. Commission to coordinate in areas According to McGarvie, while Within the Commissioner’s where their workloads overlap. barristers represent ten percent office, there is a separate group of McGarvie stresses that of the legal profession, only five staff to deal specifically with costs investigating and prosecuting legal percent of complaints concern disputes. As a result of legislative practitioners for disciplinary matters barristers. Areas where a higher amendments enacted during his is but one aspect of the Board’s and number of complaints are made tenure, the Commissioner now has the Commissioner’s role. He has are family law, wills and probate, power to determine the outcome of found his work immensely satisfying small commercial matters, personal a costs dispute if the amount of the because it “involves not just solving injuries and conveyancing disputed costs is less than $10,000. intractable problems between clients matters. In McGarvie’s view, “most The Commissioner also now has and lawyers and removing people complaints arise out of a breakdown jurisdiction to mediate costs disputes from practice who should not be of a lawyer/client relationship in up to $100,000, whereas in the past doing so but also managing and areas of high contact with clients”. the cap was $25,000. paying out funds to people who lose He adds that “where barristers McGarvie’s approach to conciliation money through solicitors’ fraud and fall down is in a lack of courteous

48 VBN VBN 49 stereotypical view of regulators as being overly conservative and resistant to change. In Mr McGarvie’s around town around view, “experimentation and risk is how to bring about change. The formula here is that the organisation is entitled to get some things wrong but must try to do things differently in order to keep improving.” For the future, McGarvie sees a greater emphasis on “more sophisticated risk based regulating, including by surveying high risk people before they do wrong rather than cleaning it up afterwards and by sharing information with other agencies”. He says that “regulators such as the Legal Services Commissioner need to try to stay one step ahead of acts of misconduct”. McGarvie’s ambition for the Legal Services Commissioner and Legal Services Board is for the organisations to be “very effective at identifying the risk of harm before harm is caused”. Such an approach requires interventions, auditing, identifying real risk without actual harm, sharing information with other integrity related agencies and trying out new ways of doing things. Throughout his time as Legal Services Commissioner, McGarvie communication, bedside manner, otherwise honest lawyers. In 2009, has relied heavily on the Victorian representing a client’s case without legal practitioners were required Bar which he describes as instructions, and occasionally, to disclose in the application for a providing expert advocacy as well getting tripped up on friction with practising certificate anything that as technical and analytical advice a client especially where acting in bore on their capacity to practice, about statutory interpretation, law a direct brief”. From time to time including any mental impairment. reform and litigation. The Board the Legal Services Commissioner To encourage open dialogue and and Commissioner has briefed receives complaints from judicial a culture of treatment, the Board evenly between men and women officers about barristers’ conduct, under McGarvie changed the policy and has provided work to barristers for example, where barristers are so that practitioners are no longer at all levels of experience including late in meeting undertakings to obliged to disclose mental health Queens Counsel in the High Court. the court. The Bar has a delegated issues if their illness is being treated McGarvie leaves his role as function from the Commissioner and managed in a manner that Commissioner and CEO in late 2017. to deal with complaints between does not interfere with their practice. Victoria’s lawyers – and their clients barristers. In McGarvie’s view, this has enabled - have been well served by McGarvie McGarvie has at times been more confident discussion of the in his role as the highest integrity saddened to observe cases of fact of mental illness by regulator for our profession. Bar disappointing and bad behaviour professionals, including within their News wishes him well in his next by otherwise bright and privileged law firms, and greater transparency endeavour, and thanks him for his professionals. In his observation, about mental health issues. service and for the enduring changes anxiety, depression and poor mental McGarvie’s performance as he has made to legal regulation health can lead to bad decisions from Commissioner has challenged the in Victoria.

50 VBN THE ART OF CHAMPAGNE SINCE 1836

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visuel pommery FLEUR 270 x 205.indd 1 30/07/13 12:08 LoreBAR

52 VBN 52 VBN VBN 53 A Fiery start at the Bar — some fifty years ago

CLIFF PANNAM

ifty years at the in relation to these claims. A Bar is a long section of the Bar, the so-called time. I have “running down” Bar, had an treasured every obvious vested interest in the moment of it. continuation of the fault-based Some more system. than others. Anyway it is the The subject matter of my privilege of age to be able to paper suggested itself to me as Flook back and reflect. a result of drafting and settling After a few years of overseas the answers to many sets of pre- post-graduate study followed trial interrogatories in which the by some time teaching in the parties were asked to answer on University of Melbourne Law oath such questions as: School, I decided that the groves “What speed was your car of academe, although alluring, travelling prior to the collision: were not for me. A) 200 yards before? I signed the Bar Roll on 9 B) 150 yards before? August 1967. A few months later C) 100 yards before? I was invited to and delivered D) 50 yards before? a paper at the first Australian E) At the time of the collision.” Loss Assessors’ Convention. The title was: “Of Law, Loss This was just one of many Assessors And Sealing Wax”. I standard form interrogatories had sought the permission of dealing with various aspects the Bar Council to deliver the of what was alleged to have paper. Permission was granted. happened.1 It seemed to me I was not required to submit a to be a farcical and unreal copy of the paper. process. The accidents had often Back then the role of fault occurred years before. How on in the determination of motor earth could such questions be accident claims was being answered honestly? questioned; especially those In the paper I advocated being heard by civil juries. Loss the substitution of no-fault assessors played an important automatic compensation for part in the process because they victims of motor accidents. In advised insurance companies presenting the paper and in

52 VBN 52 VBN VBN 53 I was charged by the Bar Council of conduct, by delivering a paper, “which would tend to bring into disrepute the general body of Counsel on the Roll”.

answering questions that followed At all events in February 1968 I of my address. Isolated remarks are I commented both upon what I saw was charged by the Bar Council of wrenched out of context … my address as the defects in the fault liability conduct, by delivering a paper, “which was intended as a reflective piece bar lore system and the many difficulties would tend to bring into disrepute which questioned the significance associated with the substitution of a the general body of Counsel on the that is given to the notion of fault in no-fault system. Roll”. The particulars were that I had the apportionment of responsibility in I wrote and said nothing at all that made public statements that had accident situations in both industry had not been said many times before been published in the press to the and arising out of the use of the motor by great leaders of the profession and effect of the following: car. I would ask the members of the eminent judges. For example, Sir John Committee to read it and form their “(a) the present methods of dealing Barry had said in an address entitled own opinion. In my oral presentation with motor accident claims are farcical “Compensation Without Litigation” I adopted this same approach. published in the Australian Law (b) such cases are the unreal There is certainly nothing new in the Journal in 1964: inventions of lawyers ideas put forward in the paper or in the comments I in fact made as “… it can be asserted without fear of (c) any change in the present system the members of the Committee will rational contradiction that the common of dealing with motor accident claims appreciate. … law has failed; that the conceptions would be strenuously opposed by which the law invokes are inadequate lawyers who make their living out of … it should be borne in mind that I and outdated, and that the methods the present system was speaking about the social and it uses to determine the questions economic impact of our present (d) any change in the present system that arise do no credit to judges and system of allocating responsibility for of dealing with motor accident claims the legal profession …. This mode of accident losses. I suggested that the would be strenuously opposed by trial is wasteful and cumbersome: its trial of liability in motor car accidents politicians who are cautious men hollow pretences and intricate but was frequently a farcical exercise that working in a conservative State often meaningless dogmas make it a only lawyers could imagine had any scandalous travesty of what the law (e) it is a remarkable psychological real relationship to the matters before and the courts are supposed to stand phenomenon that memories become the court or to the social problems for. Its persistence is largely due to clearer and clearer even though the generated by motor car accidents. I said political timidity and lethargy; fostered accident may have occurred a year or that if an observer were only to look at perhaps by those who have vested more before the trial.” the proceedings that took place before interests in the continuance of the a Judge and jury a whole dimension of There were in fact Herald and system.”2 social reality would be missed. Sun newspaper reporters present. Sir had expressed the Their reporting of some aspects of I also went into a detailed analysis of view that these actions were “utterly what I was alleged to have said was the social costs of motor car injuries. I unreal” and a “pretence”.3 Mr Justice both exaggerated and ripped out of said the cost was the same whether the Wallace of the Supreme Court of New context. However, the substance was accident was caused by negligence or South Wales had described such trials accurate enough, even though much not. The law of tort merely shifts losses as “artificial” and “fictitious”.4 Indeed of the language was not mine. but if it does not shift them they still back in 1936 the then Commonwealth I had previously received a letter exist. They do not disappear …” Attorney General, Mr RG Menzies QC, from the Chairman of the Ethics I was represented at the Bar had said: Committee dated 10 November which Council hearing of the charges referred in detail to these newspaper “I want to say as one who has practised against me by Richard McGarvie reports and required me to comment a good deal before civil juries that the QC and Michael Dowling. on them. I wrote a lengthy letter in civil jury system ought to be abolished. The charges were presented reply in which I said, inter alia: I make no qualifications on that either. by Richard Fullagar QC and I regard the system as incompetent, “I am asked by the Committee to George Hampel. Despite what I unessential and corrupt.”5 comment on the accuracy of certain thought were Dick and Michael’s reports of my address which appeared unanswerable arguments, I was These are but examples of a host of in the Herald and The Age newspapers. convicted by the Bar Council. other such comments that had been In my view … they convey a completely The penalty imposed was a made by eminent jurists in Australia, misleading impression of the substance reprimand. Canada and in England.

54 VBN VBN 55 I was aghast at the result as were my counsel. This was especially so because the Bar Council was at that

time largely made up by members bar lore of the “running down” Bar; or, at least was considerably influenced by them. I prefer, even at this distance in time, not to identify all of them. It is enough to say that the Chairman of the Bar Council and the Chairman of the Ethics Committee were at the head of them. I decided to appeal the decision to a General Meeting of Counsel which was permitted by the Rules but which had never been done before; or, for that matter, ever since. There was a good deal of publicity following my conviction. My then retired dear friend and mentor at the Melbourne Law School when I was teaching there, Sir Philip Phillips QC, was livid.6 He wrote a letter to the Editor of The Age I decided to appeal the decision to a General newspaper that was published on 9th April 1968. Meeting of Counsel which was permitted by the Rules “QC criticises the Bar Council but which had never been done before. SIR, - Generally the details of affairs why and from where opposition would One advantage of making this relating to the conduct of members come, he expressed the view that assertion, clearly and without of the “learned” professions should either the Bar, or those members who qualification, is that it will guard be treated as domestic matters. Like conducted many “running down cases” against the public being misled other domestic matters they should would or might oppose the suggested by statements by barristers on be considered as private – and treated reforms. The implication of his remark the issue of reform of the running as such. From time to time the issues may have been that some barristers, or down law, when that subject arises involved are too important to be the spokesmen for all of them, might be for debate. concealed in coy secrecy. This appears influenced consciously or unconsciously But there is a matter of much greater to me to be the case today. by their consideration of private gain importance to which I desire to attract rather than by contemplation of the Recently a junior member of the attention. Because this junior barrister public good. This implication may have Victorian Bar gave, with the consent of had made this statement, he was been concealed from, and may have been the council of the Bar, a public address, charged before the council of the not disclosed emphatically to, this young on the subject of damage claims arising Bar with having acted improperly in barrister’s audience. out of road accidents. He outlined, his profession. (The precise form of amongst other matters, the proposals May I say as one who has studied to the charge was, as might have been for substituting in the place of legal some extent the history of the Bar in expected, couched in more elaborate actions claiming damages for faulty Victoria and also the English Bar that, terms.) He was convicted, and an driving, certain alternative methods. whilst one cannot prove by evidence or adverse “sentence” imposed. It is the These alternatives have been previously abstract reasoning that such opposition significance of these proceedings to elaborated by highly competent is certain to emerge, nevertheless, the which I wish to draw attention. An authorities like Sir Charles Lowe, Sir probability of this result is extremely adverse decision of this kind is likely John Barry, Lord Chief Justice Parker high, that it would be consistent to have a damaging effect upon a and others. with much past history of barristers young man at the Bar. In short, the and in accordance with a reasonable Bar Council can, by threat of such a The junior barrister expressed the view judgment upon human beings, of whom decision, go far to shut the mouth of that difficulties might arise in establishing barristers are a species. any barrister who legitimately desires any such reform. When he was asked

54 VBN VBN 55 to assist the community by expressing regarding the action of the Victorian Nevertheless, these persons have a an honest and reasonable opinion. Bar council in taking disciplinary duty to the community and it should The council can in short say: “Your measures against a barrister for certain be incumbent on them to give the obligation to avoid any criticism of your comments made by him during the community the benefit of their fellow barristers exceeds any obligation course of a public address. specialised knowledge of the problem to the community. If you do not agree and to discuss the implications within

bar lore I do not presume the right to comment we will take steps which may ruin you their own sphere at every opportunity. on the entitlement of the Bar council in your livelihood.” It was with these responsibilities in to take this action because, after all, it mind that this subject was chosen for There is some ground for thinking this is a domestic matter for the council to consideration at the convention. attitude of the council is actually in enforce its code of ethics. Nevertheless, conflict with the law as it has been it would appear, to those who are not It is, indeed, most unfortunate that a enunciated in England in recent years. conversant with the precise details, that side issue has resulted in the form of Putting that aside it is, in my opinion, the barrister was disciplined because disciplinary action by the Bar council entirely contrary to moral principles he maligned the learned members against the barrister concerned, and in conflict with a proud tradition of his profession. especially when it is remembered defending freedom of speech and that the council gave the necessary The public address referred to was opinion of which the Bar in its more authority for him to deliver a paper to delivered to a convention organised euphonic moods is wont to boast. the convention. No doubt unexpected domestic matters resulted and, not What followed was quite a storm of public being aware of the nature of such and private comment. issues, I cannot comment further on the actions of the council.

The foregoing amounts to a serious by The Loss Assessors’ Council of Nevertheless, the barrister put forward and carefully considered criticism of a Australia, the constituent bodies of many proposals in an excellent paper fundamental kind touching the moral which represent loss assessors in which could not help but bring a good and professional values entertained by all States of Australia. The barrister deal of intelligent thinking to bear a majority of the controlling authority accepted an invitation to deliver a on a matter of great interest to the of the Bar of which I am a member. paper to the convention on a subject community. As such, it may render me liable to of great interest to the community and It would be a great pity if the disciplinary action by some authority. which posed the question of whether experience of this barrister has the Clearly, that authority cannot be the or not the present system of victims of effect of stifling further comments by council of the Bar – since no man may road or industrial accidents having to other members of his profession on be a judge in his own cause. establish “fault” on the part of another such an important matter. However, person should be replaced by a system I believe what I have expressed to be this seems unlikely, because the where “fault” would not have to be right. I believe that making it is in the profession clearly includes men of established. interest of the profession of which I courage as is revealed, firstly by the am both fond and proud. I believe the This highly contentious subject is barrister concerned in submitting his public ventilation to be in the interest exercising the minds of many learned proposals, and now by the intervention of the community. I am ready to the people in a number of countries of Sir Philip.” best of my ability to justify what I have because modern society appears to be The Age published an Editorial on the written if it needs further justification.” reaching the stage whereby it cannot same page in the following terms: afford to support the fault principle What followed was quite a storm of which is not only imposing formidable “Before the Bar public and private comment. The economic burdens on the community President of the Loss Assessors’ Sir Philip Phillips, QC, in a letter to at large but is also creating much Association forwarded a Letter to the the Editor yesterday, has raised a individual hardship on many victims Editor which was published in The case which interests many people who, for reasons outside their control, Age the next day supporting my right outside the legal profession. He has are often unable to establish “fault”. to say what I did. It carried a heading revealed how a junior member of in bold print – Inevitably, abolition of the fault the Bar, with the consent of the Bar principle would result in the limiting Council, gave a public address on the “Barristers And Courage of a field of income at present open to subject of damages claims arising out SIR, - Sir Philip Phillips, QC, has raised a large number of people, especially of road accidents. The junior barrister a matter of considerable public interest legal practitioners and loss assessors. suggested difficulties that might

56 VBN VBN 57 arise in establishing any reform in the feel that barristers regard professional in the world! The fact is that when present procedures. Pressed by his discipline as more important than their I joined the Bar I had written to the audience as to why and from where social responsibility. Chief Justice, Sir , asking

such opposition would come, the whether or not it was appropriate bar lore In view of the Bar Council’s action barrister said that either the Bar, or for me to use this academic title. against the junior barrister, we are those members who conducted many He replied that it was entirely entitled to speculate on Sir Philip “running-down cases”, would, or might, appropriate and conformed with the Phillips’ fate: he has presumably oppose the suggested reforms. In other traditions of the Victorian Bar. committed the same offence as words, said Sir Philip, the implication Not a good start. I cannot resist a his junior colleague and in a more was that some members of the Bar jumps racing phrase – I almost fell deliberate way. We would feel that might be influenced by private gain at the first! But I can even after all this eminent Queen’s Counsel has rather than public good in considering these years still feel the sting of it all. performed a service to the public and, any suggested reforms. A young academic lawyer decides perhaps, to the Bar itself.” to join the Bar and almost at once The junior barrister who made the To the same effect was an Editorial in found myself in the centre of such statement was later charged before the the Herald the same day and in The such a very public and professional council of the Bar with having acted Australian the next. debate. And, more importantly, in improperly in his profession. He was Before the appeal was heard relation to a subject about which convicted and an “adverse” sentence counsel for both parties circulated far more extreme views had already was imposed. The professional their respective arguments and been expressed. Just go back to ignominy of such a sentence could supporting materials to every the beginning of this piece. Would jeopardise the future career and member of the Bar. It was a very very Sir John Barry, Sir Victor Windeyer livelihood of the junior barrister, who uncomfortable time for me. or Robert Menzies QC have been has now appealed to the full Bar. The appeal was called on for criticized, let alone prosecuted, for Sir Philip Phillips’ observations on hearing at a General Meeting of the expressing their far more extreme these circumstances have some social Bar on the evening of 17 May 1968. views? It is also of interest to note significance. We agree with him that In fact no substantive hearing took that no action was taken against Sir the Bar Council has in this case failed place. The appeal was thankfully Philip for his letter to the Editor of to distinguish between a barrister’s upheld without debate on the motion The Age. responsibility to his profession and his of Peter Brusey seconded by Lou I cannot but think that I was rather more important responsibility to Voumard QC. Peter simply said that regarded as a very soft target by the his community. In law, as in medicine, the Bar as a whole should take the ‘running down’ Bar of the day in their qualified professionals have joined view that the charges should never attempt to deflect the inevitable. together to establish and protect have been made. Peter and Lou could 1 I note from my first fee book that back ethical standards, to solve professional not have been more distant from the in 1967 the fees for such work by a problems within the profession and ‘running down’ Bar. junior barrister varied between $11 and $20! It was so mechanistic. to deal with the community in a It was however something of considered and united way. There is a Pyrrhic victory. I was to suffer 2 (1964) 37 ALJ 339 at pp. 342-3. some feeling amongst laymen that many adverse consequences of it 3 (1961) 35 ALJ at p. 149. the walls the professions have built for a very long time. Many senior 4 (1961) 34 ALJ at p. 152. are sometimes too high: in general, members of the Bar Council barely 5 See: (1936) 10 ALJ at p. 74. Sir Robert however, the system has operated acknowledged my existence when specifically referred to motor car honestly and to the public benefit. they were at the Bar, and, later accident cases in his book “Afternoon Light” (1967). At pp 326-9 – “The jury treated me with cold detachment, It would be idle for the Bar Council to knows full well that some insurance even hostility, from the Bench. pretend that barristers have no interest company will pay. And insurance Other members of the Bar Council companies are fair game.” in the public debate about damages at that time never forgave me for actions resulting from road accidents. 6 PD advised me to go to the Bar, at least the widespread public criticism for a time, because he said how on It would be even more idle for the earth could one hope to successfully of the Bar associated with my council to believe that the extent of teach a subject area in which they appeal which in their view should that interest, and its possible basis, had had never practised. His advice for a never have been taken. Some even young academic was this – during your not occurred to members of the public. first year at the Bar only appear in stooped to criticising me for using But interest is not self-interest. The Magistrates’ courts; in your second year the title “Dr.” upon the basis that Bar’s reputation in Victoria is sound only appear in the County Court; and, it was only an American degree; after that never again appear in either enough to suffer a realistic inference. It of them! I treasured, and still treasure, notwithstanding it was from one of might not be if the public is allowed to my association with him. the most distinguished Law Schools

56 VBN VBN 57 Remembering bar lore Ronald Ryan

KERRI RYAN

Memories from suburbia The radio was on in the kitchen. We were boisterous. We were waiting to hear a news report, but in our raucous chatter we momentarily forgot. Then suddenly the news came on – maybe it was 9am – or a newsbreak, but we missed the headline. We missed it! What was happening? But then Craig, the eldest boy amongst us, said he heard the newsreader say ‘Ronald Ryan is dead’. I had hoped it wouldn’t happen. I had wondered how Ronald had been feeling. How was his family coping? I tried to imagine the scene at Pentridge Prison. This was unimaginable. Ronald Ryan was hanged by the neck until he was dead. That is my memory of 3 February 1967. I had just turned eight and was about to start Grade Three. This is on the edge of my memory and like a dream, is hard to describe. It is the first major news event that I recall. If you were around then and old enough, you too will likely remember where you were the day that Ronald Ryan was hanged. Perhaps I remember, despite my age. because I share his surname. He could have been family and I identified with him. Annoying schoolmates would cry, ‘your dad is a murderer!’ even though it was not true, cementing this memory. In 2007 I listened to a commemorative story on ABC I also remember the public outrage and the Radio marking 40 years since the execution. Witnesses demonstrations prior to the execution from watching to the hanging told their stories and talked about the television news reports. It was a volatile, highly charged profound effect the event had had on them. It must have period of time. For a youngster like me to remember this been truly shocking. Reading the biography of Ronald event is a testament to the size and intensity of the story. Ryan by Mike Richards transported me to the time of my It overwhelmed and deeply affected our community. childhood and provided so much more detail. It gave me This helps explain why the execution has become an an insight into the whole journey of Ronald Ryan, which important part of Australian history. has profoundly affected our society. The story of the dramatic escape by Ronald Ryan and Peter Walker from Pentridge Prison, and the fatal shooting Supreme Court, 3 February 2017 of prison warder George Hodson by Ryan on 19 December The ‘50th Anniversary of the Last Judicial Execution in 1965, is part of our folklore. The community of Victoria was Australia – The Hanging of Ronald Ryan on 3 February terrified whilst the pair was on the run for 17 days. They 1967’ was held at the Supreme Court of Victoria on 3 loitered in Melbourne, moving around various locations. February 2017. It comprised two parts. The first was ‘A Walker killed a man on Christmas Day. They robbed a bank. Re-enactment of the Verdict and Sentence in The Queen They were recaptured in Sydney on 5 January 1966 and v Ryan and Walker, 30 March 1966, Court Four, Supreme returned to Melbourne where they jointly faced charges of Court of Victoria’. This was followed by ‘Observances’ in murder, of which Ryan was found guilty. The Supreme Court Library.

58 VBN VBN 59 bar lore

Looking down into the body of the court I found The re-enactment was held in the court where the trial had myself in a time warp. been held 49 years earlier. A large crowd assembled. As we filed into the ‘prisoners’ were brought in – and Walker when deciding to escape. the public gallery, along with the pathetically I recognised one of them Did they agree to commit violence creaking and squeezing to get into as Ronald Ryan. His stand-in looked if needed? The judge explained this position, an eerie feeling loomed. a bit like I imagined that Ryan would. term and how it related to the case. It Looking down into the body of the Briefly I believed it was the man clearly showed that the question on court I found myself in a time warp. himself. Loud knocks echoed and the minds of the jurors was whether The court was set up as if a court ‘Justice Starke’ appeared, played by Walker may be guilty of murder or case was in progress, with official actor John Stanton. He talked in the the lesser charge of manslaughter. looking (mainly) men dressed in way that important men did then, Ryan’s destiny was already set. 1960’s style - court staff, legal and providing a sense of time and place. In Act II the jury returned with press representatives were all in The all male jury was brought in. a verdict. Walker was found ‘not position. The clock was set to 10 The foreman sought clarification guilty’ of murder and ‘guilty’ of o’clock, the time of night at which from the judge about the legal manslaughter. Ryan was found the jury returned to the court after concept ‘acting in concert’. This ‘guilty’ of murder. Ryan seemed to deliberating for several hours. related to the scope and extent of take it without much reaction, but he The re-enactment began. Suddenly the agreement made between Ryan did give Walker a congratulatory pat

58 VBN VBN 59 bar lore

Prison and their dramatic time on the run. She reflected on how the community was relieved when the pair was captured and how following their arrest ‘an extraordinary thing happened’: the community accepted the conviction of Ryan, yet there was a turnaround as to him being sentenced to death. It resulted in a movement – a dramatic shift in public opinion. She wondered what it may have been like for Justice Starke in delivering the death sentence, and described how he may have felt on the journey between his chambers and the court: ‘the contemplation on the back. Walker was taken away. Brian Bourke, Dr Mike Richards, and of the experience is really hard Justice Starke, as his duty obliged the Hon Dr Barry Jones AC. Once to imagine’. him, then sentenced Ryan to death. settled, the Hon Justice Lex Lasry Chief Justice Warren indicated ‘it At that time in Victoria, a conviction AM welcomed the audience and was a significant time in this Court’s for murder carried a mandatory expressed pleasure in seeing a large history and in Victoria’s history and death sentence. Justice Starke did turnout. He provided some insight development as a humane democratic not don the black cap as was usual into the story of Ronald Ryan and society based on the rule of law.’ She practice for a judge bringing a death how the idea for the event came introduced the three speakers, and sentence. It was known that he did about: ‘it was an important milestone thanked and paid tribute to Justice not support capital punishment. and needed to be acknowledged.’ Lex Lasry for his role in this event Being in Court Four added to the Chief Justice Marilyn Warren and his work in death penalty cases. sense of realism. With the exception welcomed the audience. She The first speaker Brian Bourke, of Justice Starke, all roles were expressed sympathy to the Hodson was Junior Counsel for Ronald Ryan. played by law-related professionals. and Ryan families and friends He spoke about his role and being The audience enthusiastically for their enduring grief. She ‘lucky enough’ to get the brief to thanked them. acknowledged it was 50 years defend ‘Ronnie Ryan’. After Ryan The gathering was then directed to the day that Ronald Ryan had and Walker were re-captured, he met to the magnificent Supreme Court been hanged. Ryan at Pentridge Prison. Library to hear ‘Observances’ from She spoke about the genuine fear He said that things moved quickly speakers including the Hon Chief experienced by Victorians when Ryan from there. The Coronial Inquest for Justice Marilyn Warren AC QC, Mr and Walker escaped from Pentridge Hodson was 4 March 1966 at which

60 VBN VBN 61 time Ryan was committed for trial. Those questions I had asked myself that morning on The trial started mid-March, with 3 February, 1967 - How was Ronald feeling? What was a verdict on 30 March 1966. The the scene like? – have been answered. Premier Mr Bolte made it apparent bar lore that the pair would hang. The Liberal the families and friends of Hodson today and described him as ‘a Party in general were opposed to and Ryan, he noted that their grief peerless advocate, a fine judge and the death penalty but could not get was naturally profound and enduring. a great humanitarian – who bore a enough support to stop the execution. He acknowledged those involved very heavy burden of public duty Throughout this ordeal Bourke got in the execution: Ryan’s legal team, and private conscience in having to know Ryan well and developed a prison officials, anti-hanging activists, to pronounce a brutal sentence friendship with him. The governor journalists who witnessed the according to law.’ of Pentridge Prison, Mr Grindlay, execution and others. ‘The emotional Barry Jones was the final speaker. permitted unlimited visitation, and scars ran deep…those with us say Long before he entered parliament Bourke made 50-60 visits. Ryan was they’ll never get over it.’ he campaigned against the death respected by those around him. He focused on Justice John Starke penalty from 1962-67. He provided He wasn’t a big time criminal and said he was a ‘life-long opponent a walk-through examination of and prior to the escape he had of the death penalty.’ Whilst executions through Australian and not been well known. researching his book Richards had world history, and the current state Bourke’s voice wavered as he said refrained from approaching Justice around the world. He punctuated that he had ‘never met a tougher Starke. In 1990, he unexpectantly met this with a few insightful quotes on bloke’ and that ‘Ronnie’ never the retired judge socially, and decided the topic from various leaders and complained about the situation he to ask if they could meet and talk intellects through the ages. had found himself in. It was Ryan about Ryan. The answer was ‘Sure, Jones finished by asking, ‘Can who consoled Bourke prior to the when do you want to come?’. man, that imperfect being, be execution. Bourke said he was ‘more When they did meet, the first expected to render perfect justice? than upset to have him executed’. question Starke asked Richards was In that respect, could capital He was deeply affected by what ‘Do you think I did the right thing on punishment give a notion of happened to Ronald Ryan. Ryan?’ Starke was clearly distressed perfection to the justice of The government appointed a and ‘poured out the anguish he felt human beings?’ hangman who remained anonymous. at having to sentence Ryan to death’. It was a solemn occasion He was paid by Victorians to kill a Starke told his story, and it involved a performed with respect and grace. man and Bourke believed this to be plan to save Ryan. As the trial judge To have eminent figures speak hypocritical. Apparently Bolte once in a capital case, and as was protocol provided a sense of living history. said ‘You weren’t a Premier unless at the time, Cabinet had invited him The common thread running through you hang somebody.’ Once Ryan had to a meeting to help it to decide each presentation was that there is died Bolte denied an application whether to commute the sentence no place for capital punishment in by the family to remove the body. or to let the hanging proceed. Starke our society, and that the emotional Bourke concluded ‘This shows how had contemplated telling Cabinet wounds are widespread and callous he was.’ a lie - ‘that he considered the jury enduring. Bourke said it has ‘given me verdict was unsound.’ He had hoped Those questions I had asked a thrill’ to have witnessed a re- that this would result in Ryan’s death myself that morning on 3 February, enactment 50 years on from an event sentence being commuted. But when 1967 - How was Ronald feeling? to which he was a key player. he fronted Cabinet and was asked if What was the scene like? – have Mike Richards spoke next in he agreed with the verdict, his innate been answered. The fate of Ronald his role as Ryan’s biographer. honesty and integrity won out and Ryan has affected us all in some way Richards suggested the hanging is he could not go through with his lie. – from those closely and profoundly remembered as a turbulent moment Later Starke worried that he could affected, to ordinary folk like me who in Australia’s history – ‘one that led have done more to save Ryan from just remember. Capital punishment to a decisive break with a relic of our the gallows. This was confirmed was abolished in Australia colonial past.’ He said that not only by his associate who revealed that decades ago, thanks largely to the did the event stop the nation, ‘but ‘Starke was inconsolable’ on the amalgamation and uproar of the more than that changed the nation.’ morning of the hanging. community. It is the enduring gift that Richards observed that the Richards finished by Ronald Ryan has given us. Hopefully, personal repercussions of the acknowledging that ‘Jack Starke’ in a global sense we can strive for a execution reached very much further holds a special place in his thoughts future without it. than was appreciated at the time. For

60 VBN VBN 61 Stewart McNab, holding Sarah Riley ‘s Will on his table, pointing to the signature of his grandfather, Solicitor Francis McNab. bar lore

62 VBN VBN 63 Where there’s a will, we’ll go a Waltzing Matilda: bar lore serendipity in chambers

W. BENJAMIN LINDNER

last will and sheep station (Vindex) at the same camped in the billabong, testament time that Christina was visiting her Under the shade of a Coolibah tree, usually reveals own brother on his sheep station a person’s last (Dagworth). Both stations were in And he sang as he looked at the old known residential address. But central Queensland, the outback, or billy boiling, occasionally it reveals much more, as Banjo called it, the “never never”. Who’ll come a [rovin’ Australia] serendipitously.A The two women, now 31 years Waltzing Matilda with me? In October, 1888, a Sydney solicitor, old, met in Winton, Queensland, A.B. ‘Banjo’ Paterson entered into and to Sarah’s eternal chagrin, Then, in the first chorus, Banjo partnership with one John William she introduced Banjo to Christina. posed this question of Christina, his Street.1 At about the same time, Christina’s older brother, Bob inadvertent, musical collaborator: Paterson fell in love, penned a Macpherson, squatter, of Dagworth [Chorus 1] serenade to his betrothed, and later Station only 80 miles north of Winton, published his feelings for Sarah immediately invited the couple to Who’ll come a [rovin’] waltzin’ Matilda Ann Riley in The Bulletin.2 Sarah’s stay over and party. Banjo and Sarah my darling, mother’s brother’s wife’s brother’s accepted, with glee. Who’ll come a waltzin’ Matilda son was John William Street, senior One evening, during dinner, with me ? partner in ‘Street and Paterson’. mention was made of a swaggie Banjo was well connected. passing by, ‘waltzing matilda’. Banjo Waltzing Matilda and leading a ‘Street & Paterson’ lasted 11 years. looked mystified. He was told that [tucker] water bag The partnership/engagement with that referred to the itinerant workers Who’ll come a waltzing Matilda Sarah persisted for seven years, who walked the tracks carrying their with me? ending in unfortunate circumstances. swag, or blanket, which kept them It is said that she left our shores for warm at night.4 Banjo pondered the Banjo answers his question in the London wearing her sackcloth and phrase. After dinner, as they sat on next two choruses, unambiguously: ashes.3 A copy of her will revealed the veranda in the welcome cool of [Chorus 2 & 3] that, many years later, she returned the Queensland night, Banjo was to Australia. However, the location entranced by an old Scottish tune You’ll come a waltzing Matilda my of her last known residential being strummed on an autoharp darling, address remained clouded in by Christina. You’ll come a waltzing Matilda mystery, the will only naming “Why don’t you sing the words with me , a small town in country Victoria. to that?” inquired Banjo. Christina Why had Sarah left our shores replied, “It hasn’t any words that I Waltzing Matilda and leading so precipitously in the late 1890’s? know of, but it must have had at one a water bag, Sarah Riley disengaged Paterson time; I believe it to be an old Scottish You’ll come a waltzing Matilda when he took a shine to her tune.”5 Banjo, with a glint in his eye, with me. girlfriend, Christina Macpherson, then penned a verse or two….and the an old friend from their school days choruses. His original6 first verse and Banjo’s invitation to ‘his darling’, at an exclusive private girls’ school, choruses (including amendments to initially, to go ’roving Australia’ with ‘Oberwyl’ (located on the corner of first thoughts) were- him, was not accepted by Christina. Barkly Street, Alma Road and Burnett After waiting seven years for [Verse 1] Streets St. Kilda). In 1895, Sarah had a marriage date to be fixed, that invited Paterson to her brother’s Oh, there once was a swagman flirtation was the last straw for

62 VBN VBN 63 Banjo Patterson

Sarah. She gave Banjo, ‘the cad’, the sack. To this day, her descendants maintain that at least she kept the engagement ring. Meanwhile, it is said, Banjo was unceremoniously kicked off Dagworth station by bar lore Christina’s brother, the squatter, Bob Macpherson. I located Sarah’s will and grant of Probate at the Public Record Office, North Melbourne, online. They cost $32.80. The e-mail arrived soon enough with the valuable attachment. I noticed the solicitors for the will were McNab & McNab 454 Collins Street, Melbourne. I read it. It commenced in the usual way: ‘THIS IS THE LAST WILL AND TESTAMENT of me SARAH ANN RILEY of Panton Hill in Victoria, Spinster.”

Sarah Riley’s address, ‘Panton Hill’, was inadequate. She hailed from Geelong and had spent many years in Scotland and England. She returned to Australia in her 60’s having been born in 1863, the year before Banjo. What was she doing in Panton Hill? And, problematically, both the street number and street name of her last abode were missing from her will. If the residence was still there, it would be likely to present as a substantial, impressive homestead. The Rileys had been rather well off ever since her father, James, selected some prime real estate for sheep Victorian Bar. Stewart signed the [An aside: On the first day reading farming north of Hamilton, in 1841.7 Bar Roll in November 2002. During with my Master, the late David Sarah’s last address would be in the his time as a solicitor, Stewart Ross QC, he informed me of a few solicitor’s file for the making of this practised extensively in the wills fundamentals, as I embarked on my will. He would need it to post her his and probate jurisdictions. He was Readers’ Course - that Solicitors account. The law requires that such perfectly placed to advise me as to work from ‘offices’,8 barristers work files be retained by solicitors for 7 the provenance of Sarah Ann Riley’s from ‘chambers’; solicitors work on years. What are the chances, in 2017, last will and testament. a ‘desk’; barristers work on a ‘table’; of finding the file of a will made in The Victorian Bar has always had an solicitors work as professionals, July 1933? “Zip”, thought I! open door policy, of which I would barristers follow a calling9; solicitors But as McNab & McNab still now take advantage. I walked to don’t wear wigs in the course of their exists, although somewhat Room 902 of Isaacs Chambers. It was daily work; barristers did, until that expanded in name and membership, not far away as I was sitting in my portion of the traditional garb was I might have some luck. It would own chambers at Room 910, eight dispensed with in 2017. Before the be only a phone call away. Better rooms along the corridor! change, a judge could neither see nor still, Stewart McNab is a barrister Noticing that his door was ajar, I hear a barrister who was improperly in practice on my floor. In June knocked on it to attract his attention attired (i.e. wigless). Now that the wig 2002, he resigned as a partner of while he was sitting at his table in has gone, do Barristers still work in McNab McNab & Starke to join the chambers. chambers, off a table, as they undo

64 VBN VBN 65 3 Roderick, Colin, Banjo Paterson, Poet their pink or white ribbons to read Benjamin: “I wonder whether your by Accident, Allen & Unwin, 1993, their briefs, in order to follow their grandfather realised he was witnessing p.88: “After Sarah had broken off her calling…or do they now work in the will of a person intimately engagement with Bartie in the winter of 1895 and left for London to wear her

offices, off desks, indistinguishable connected with ‘Waltzing Matilda’, sackcloth and ashes, his family was all bar lore from their professional counterparts Sarah having introduced the musician agog to see where Bartie would look of the Law Institute of Victoria, to the wordsmith.” next.” I wonder?] 4 The phrase is derived from two Stewart: “Well, I can’t tell you that, but Stewart invited me in, no doubt German words. ‘Waltzing’ derives from I can tell you something else that might auf der walz referring in turn to the perplexed as to the nature of an pique your interest. “ custom of apprenticeship whereby inquiry a criminal barrister would the apprentice would travel around have of the resident expert in Wills Benjamin: (peering over spectacles, the country for the allotted time (eg. 3 years) before returning to their village, and Probate. Our conversation went a quizzical expression): “Yeeahhs?” fully qualified in their trade. ‘Matilda’ bit like this: was the name given to females in Stewart: “When I retired from the the 16th Century 30 Year European Benjamin: “Stewart, I have a will here, partnership at McNab & McNab, I War who followed the soldiers in which may be of interest to you, and I only brought one thing with me to the battle, ‘keeping them warm’ at night. Transferred to the outback, ‘waltzing also have a question for you.” Bar. This desk. And I think it is highly matilda’ meant to walkabout looking probable (as a civil barrister, I was for a job of work, carrying that which Stewart (peering over spectacles, not surprised to hear Stewart speak keeps you warm at night. quizzical expression): “Yeeahhs… in probabilities), that this will was 5 Sydney May, The Story of Waltzing go on.” signed on this very desk, as it was Matilda, W.R. Smith & Paterson Pty Ltd.,Brisbane, 1944, p.18. The old Benjamin: “I have a will here by Banjo previously owned by Francis McNab, Scottish tune she spoke of was Thou Paterson’s fiancée of seven years my grandfather. Bonnie Wood of Craigielea. standing. She broke it off shortly after The ink on Sarah Ann Riley’s signature 6 Original manuscript, Paterson Estate he wrote ‘Waltzing Matilda’ and, 38 reproduced in Campbell R. and Harvie suddenly seemed fresh to me, as it had years later, gave her instructions as P. , “ Singer of the Bush, A.B. Banjo now returned to the place it originally Paterson, Volume 1, 1885- 1900, Ure to her estate to a solicitor’s firm you’d marked the page, on 26 July 1933. That Smith Press, 1983, pp. 518 (complete), know, then in Collins Street, Melbourne. and 251 (partial). was two years and five days before Your old firm, then called McNab & she passed away; one day later, Sarah 7 In 1840, James Riley had accompanied McNab, wrote up the will, in July, 1933. Count Pawel Strzelecki, James was interred alongside her parents at My question for you is after all these Macarthur, three convicts and Geelong Western Public Cemetery. aboriginal, Charlie Tara, on an years, in order to locate Sarah Riley’s As I left Stewart’s chambers, exploratory trip around Gippsland. last place of residence, which is not Strzelecki had climbed and named Mt. and returned to mine, eight doors included in the will, would her will file Kosciusko, then named the Strzelecki down the corridor, I wondered Ranges and also Gipp’s Land (after the still exist, archived somewhere?” whether Stewart’s grandfather’s Governor of N.S.W.) while Macarthur and Riley looked out for sheep grazing Stewart (now frowning): “I can inform desk, had become, since country. They found it and settled in you that, in 1958, I was personally November, 2002, a table. the Western District of Victoria, with given the task of emptying out the Then, as I entered my own Riley later moving to Geelong. There, he conducted prosecutions as Sheep “no longer required files” cabinets at chambers, I looked over at my wig, Inspector, appointed under the Scab Act, McNab and McNab then stored in perched on a bust of Beethoven 1870. Essendon and I burnt the lot. Sorry as it has for many years, and I 8 Between 1888 and 1899, Street & about that. Anything else I can help contemplated my impending trial Paterson initially operated from 85 Pitt Street, Sydney, then from 24 Bond you with?” in Morwell, before His Honour Street, Sydney – where, presumably, Judge Smallwood who would Benjamin (handing over the 2 page Mr. Paterson sat in his dingy little office neither see nor hear me without where a stingy ray of sunshine struggled will): “Not really, Stewart. But I notice feebly down between the houses tall; that portion of the proper the will was signed by someone you And the foetid air and gritty of the dusty, courtroom attire. may know, so I thought I’d leave you dirty city through the open window floating, spread its foulness over all. 1 John William Street, produced sons with a copy.” (adapted excerpt from ‘Clancy of the who foreshadowed an historic legal Overflow’, The Bulletin, 21 December, dynasty, namely three Chief Justices Stewart (now with wry smile): “Ah, 1889) of the Supreme Court of N.S.W. i.e. yes. That witness to the Will is my Sir Phillip Street KCMG, 1925 – 1934, 9. a vestige of that occurs when, after grandfather, Francis McNab. I’d know his Sir Kenneth Street KCMG, KStJ. 1950 fulfilling the prerequisites of admission signature anywhere. And I see it was also – 1960 and Sir Laurence Street AC, to the Bar, the Honorary Secretary KCMG, QC, 1974 – 1988. signed by Margaret Paton, his loyal clerk calls out your name and invites you to sign the Bar Roll in the Supreme Court 2 ‘As Long As Your Eyes are Blue’, The of many years. I knew her, too.” Library. Bulletin, 7 November, 1891

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OF THEliftBack In this Back of the lift section of the Victorian Bar News, the Bar acknowledges the appointments, Federal Court of Australia retirements, deaths and other honours of past and present The Hon. Justice Christopher Neil Jessup members of our Bar. Bar Roll No. 1137 Adjourned Sine Die 66 The Hon. Justice Christopher Neil Jessup BY TIM DOWLING 66 Silence All Stand 67 The Honourable Justice David O’Callaghan BY JENNIFER BATROUNEY 67 The Honourable Judge Anthony Kelly BY MARK COSTELLO 68 Vale 68 Christopher Gilligan BY GREG AND SOPHIE MCNAMARA 68 John Edward Barnard QC BY THE HON MURRAY KELLAM AO 69 Hartog Carel Berkeley BY THE HON SUSAN CRENNAN AC QC AND THE HON JUSTICE JOHN DIGBY 71 John Arthur Riordan BY MARK CAMPBELL 75 Gonged 77 Victorian Bar Readers Course 77 ceremonial sitting of pre-eminence both as counsel the Federal Court of and as a judge. Australia was held His Honour attended Malvern on 13 April 2017 to farewell Justice Grammar and Scotch College and ChristopherA Jessup. The farewell then Monash University, where he was attended by a great number graduated with honours degrees in of distinguished guests, including Law and Economics and shared the current and former members of the Supreme Court Prize with Justice , Supreme Mark Weinberg. He then completed Court of Victoria and Court of a doctorate of philosophy at the Appeal, as well as many members London School of Economics in of the Victorian Bar. The attendance industrial relations law. of so many was testament to his As a junior barrister, his Honour was Honour’s breadth of practice and widely published and was editor of

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the second edition of the seminal text As a judge, his Honour heard and Masters of Law at Yale Law School. Alley’s Industrial Law in Victoria. He determined many complex cases He then became a foreign associate had three readers (the Hon Geoffrey throughout the federal jurisdiction with the New York firm Sullivan & Giudice AO, Simon Marks QC and and he did so with distinction. Cromwell. Bryan Mueller), all of whom went on to Although he came to the bench He signed the Bar Roll in 1986 have successful careers in the law. as a leader of the industrial law and quickly became a favoured His Honour took silk in 1987 and Bar, it was to the Court’s great junior of many of the leading silks soon became established as one of benefit that his Honour relished at the Bar, including Kenneth Hayne the leading industrial law counsel the task of hearing cases in various QC, Stephen Charles QC, David nationally. He was known as a fields, particularly taxation and Habersberger QC, QC masterful advocate. intellectual property. He had an and Ray Finkelstein QC. He was Chairman of the Victorian especially keen interest in matters His Honour returned to Yale as a Bar in 1992-1993 and speakers at involving biochemistry and visiting lecturer in 1996. Between the farewell made reference to his molecular patents. His work ethic 1998 and 2000, he worked at New Honour’s outstanding leadership as a judge was well known and Haven firm Wiggin and Dana. He throughout that time – which was respected. worked closely with the firm’s then one of the most perilous periods of He made a major contribution to head of its appellate practice, who the Bar’s existence. the Federal Court in overseeing the later became Judge Mark R. Kravitz. In addition to legal scholarship, introduction and development of In 2003, his Honour took silk. his Honour’s keen interest in electronic court files and electronic As silk, he enjoyed a busy and wine led him to undertake a trials. The Court now has close to successful practice, appearing in Bachelor of Applied Science 40,000 digital court files, owing in matters involving corporations law, (Wine Science) from Charles Sturt large part to his efforts. trade practices law, revenue law, University and he has been devoted His Honour’s dry wit and equity, mining and energy law and to his vineyard in the Victorian unflappable manner in court were constitutional law among many other Pyrenees for many years. Some admired by all, and will be missed. areas in a broad senior practice. were fortunate enough during We wish him well in his retirement His Honour made a significant his time in practice to witness his and thank him for his considerable and sustained contribution to the command of a wine list. contribution. Bar. His distinguished service to TIM DOWLING the Bar included being a member of the Bar Council for four years. His talent for, and a commitment to, teaching was reflected in his Silence all stand chairmanship of the Readers’ Course Committee for more than four years between 2012 and 2016. Federal Court Outside of the law, his Honour enjoys running, cycling and American The Honourable Justice David O’Callaghan football. His Honour became a Green Bay Packers fan in the American Bar Roll No. 2048 National Football League after the n 8 December 2016, the spilled outside the courtroom. As demise of his beloved Fitzroy Football Governor in Council noted by Fiona Macleod, as a judge of Club. His Honour also has a strong appointed David O’Callaghan the Federal Court, he is expected to affection for American classic cars QC as a Judge of the Federal Court of make the easy transition from “DO’C” (including his 1965 Wimbledon OAustralia. At his Honour’s welcome to “JO’C”. white convertible Mustang with red on 10 February 2017, the Attorney- His Honour studied law at the interior) and fast horses (including General Senator the Honourable University of Melbourne and tutored his horse Cisco of more than 14 George Brandis QC said the moniker in law at Trinity College. He was hands). by which he is universally known an articled clerk at the former firm In his response, His Honour spoke “DO’C” is both an acronym and a Madden Butler Elder & Graham with pride and affection about his mark of affection. That affection under the supervision of Alan Fenton. wife Wendy and his three sons was duly demonstrated by the large He became an associate with Alexander, Samuel and Benjamin. gathering of friends, colleagues and Justice Keely of the Federal Court. We wish His Honour long and distinguished guests. It was strictly His Honour continued his distinguished service on the court. standing room only as the crowd academic pursuits and attained a JENNIFER BATROUNEY

66 VBN VBN 67 Federal Circuit Court feverishly in the lead-up to trial. He school. It was a happy time for had no truck for hierarchy within the him and he excelled in all areas The Honourable Judge legal teams he led; each contribution of school life. back of the lift back Anthony Kelly was considered on its merits. One of Chris was a gifted sportsman; a his mantras was “there’s no pride in champion high-jumper and captain Bar Roll No. 2146 authorship”. Juniors were encouraged of the school football team. He was fter nearly 30 years at to amend his drafts. scouted by three VFL clubs (something the Bar, his Honour Another mantra – which may he never mentioned) before suffering Anthony Kelly has prove telling in his new role – was a football-ending knee injury. He was accepted appointment as a Judge of “Momentum!”. On the theory that school captain. His final year school theA Federal Circuit Court. prospects improve with momentum valediction notes in part, “Possessed His Honour had a remarkable and dim with stagnation, he of an easy going personality, he has practice at the Bar. For 16 years he eschewed side-issues and strived to influenced his fellow students by the was substantially occupied with three prevent litigation becoming bogged- unassuming and dedicated manner in controversies. His entrée to mega- down. Counsel appearing before which he has approached all things litigation came with the Bank of his Honour can expect credit for asked of him as school leader.” Melbourne case, which ran from advancing the progress of a case. The In 1971, Chris commenced 1990 to 1993. His Honour – about alternative is best not contemplated economics and law degrees at Monash three years post-call when he in a happy note such as this. University, in residence for a time at received the brief – appeared unled His Honour was blessed by Mannix College. He enjoyed university at a Bar table crowded with stars, mentors of diverse abilities. In life to the full and, although unable both risen and rising. particular, Murdoch QC and Derham to play, was an active member of the His Honour then accepted a brief QC took the time to inculcate him Monash Football Club. He graduated, as Peter Murdoch QC’s junior in the in the ways of the Bar. No doubt completed the Leo Cussen Practical Estate Mortgage Trusts litigation. influenced by their generosity, he Training Course and was admitted They appeared for Lloyds of London. took much time mentoring the junior to practice in 1977. Chris spent 1978 The litigation ran from 1993 to 1997. bar, including his four readers. travelling overseas and signed the Bar Then, in 1998, he was briefed to His Honour is innately interested Roll in September 1979. act for Exxon-Mobil in the litigation in the law. That he had not practised He read with Ray Lopez on the emerging from the Longford in the Federal Circuit Court when he 5th floor of Owen Dixon East. The 5th explosions. He could not have was approached to take appointment floor was a lively place in those days. predicted the hydra-like quality of would only have piqued his interest. His near neighbours included John the dispute. The various actions and His love of the law, and his wide Barnett, Bob Kent, Geoff Flatman enquiries, continued until 2008. professional and human experience, and Otto Strauss. It was a wonderful Aside from those very large cases, will serve him and the Court well as environment for a young barrister. he managed a diverse practice on the he delves into the weighty Federal Chris always had a strong practice, commercial and common law side. legislation that forms the bulk of the mainly in the common law courts As a Silk his Honour was noted for work of the Court. and VCAT. He was held in the highest his impeccable preparation. He worked MARK COSTELLO regard by all who had dealings with him. Chris’s greatest love was family. Mary and Chris married in 1981 and had Vale four wonderful children: Lucy, Abbey, Darcy and Cormac. Chris always had time for his children, spending countless weekends on sporting fields Christopher Gilligan and long summers on their annual beach holidays in Fairhaven. Despite Bar Roll No. 1514 the terrible illness, his courage and hris will be remembered brothers. Mainly due to his parents’ sense of humour did not waver, and not just for what he did but frequent travel overseas, he attended Mary and the children were with him C the way he did it. He saw boarding school from the age of six when he passed away at home on 14 the world with generosity, warmth, and with the exception of one year April. Chris made great friendships in optimism and humour. boarded for the rest of his school every phase of his life and will always Born on 2 October 1952, Chris was life. He attended St Bede’s College, be missed. by nine years the youngest of four Mentone for his last nine years of GREG AND SOPHIE McNAMARA

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John Edward Barnard Mullet Langford in Collins Street. opening offer was “as a matter of He was admitted to practice on 1 generosity, we will not require you to QC April 1955 and signed the Bar Roll in pay our costs.” Bar Roll No. 540 February 1956. He read with the late But to return to earlier years; John Tony Murray, who was later Solicitor- had two readers: Ross Gillies now ohn Barnard was a man of many General for Victoria and then a QC and Jonathan Ramsden, who fine attributes. He was a proud Supreme Court judge. later became judicial registrar at the J father and grandfather. He was John began in the Courts of Petty Family Court. John developed a large devoted to his wife, Margaret, as she Sessions as they were then known. common law practice as a junior and was to him. He was a first-class lawyer He was, from the outset a determined often appeared with eminent silks and a superb jury and appellate opponent. Glenn Waldron reports of the time, such as Bill Crockett and advocate. He was a mentor to many. that he never gave up and would Barry Beach, both of whom were His interests were wide and eclectic. make submission after submission, highly regarded and respected They ranged from conservation of the always having a comeback to by John. Western Port seagrass, to ornithology, anything his opponent might say, In 1970 John was briefed to appear to the detailed history of exploration until the magistrate’s patience was in the West Gate Bridge Royal in early Victoria and in particular exhausted and he put a stop to Commission. John was aged 39 and Westernport. He had of course things. Glenn Waldron’s report of junior to his good friend Barry Beach numerous friends and admirers in the John’s early days in those courts will QC. John was some three years away legal profession, but he also had many be readily believed by those who from taking silk but the company friends outside the law, particularly were involved with John in later in which he was during the Royal down at the Island. years. As a senior silk, he represented Commission hearing says a great Sir Daryl Dawson described John The Alfred Hospital in the case of deal about the reputation that he “as a man of the land – a man of the PQ v Australian Red Cross and others, had already established. It was a earth”. John’s parents had a property the HIV AIDS blood transfusion case, veritable Who’s Who of the Victorian near Corowa in NSW. Once when we still the longest-running civil jury Bar. Assisting the Commissioner were on circuit we drove to Corowa trial in Victoria, probably Australia. was John’s old master, Tony Murray and he showed me the tiny primary Unfortunately after all that time, to QC, leading Jim Gorman QC. Others school that he had attended. He use the words of Jeremy Ruskin, his included Keith Aiken QC leading pointed out where the butcher’s shop junior, “We came second”. Stephen Charles, William Kaye QC and the bakery had been and of course John became known in that case leading SEK Hulme QC and Richard he had an entertaining story about as ‘the great objector’ having made Searby, John Young QC—later each. Subsequently his family moved over 100 objections before the case Chief Justice of Victoria—leading to Mount Eliza. It is said that John rode commenced and losing every one of Clive Tadgell, and Peter Murphy his horse down from the property. them. Jeremy Ruskin tells me that QC leading Jim Gobbo and Alan John came to Haileybury as a after losing the first few objections, Goldberg. Fullager QC, Brooking QC boarder in 1945 for the last four years rather than politely saying to the and Marks QC, also appeared. Finally, of high school – in what was then judge, “If your Honour pleases”, he Peter Coldham QC led Daryl Dawson called Form 3, now Year 9. He was a would mutter as he sat down, “law and gifted student, placing first in Forms of the jungle”. John did not mind I first met John in 1973 when I 4 and 5, and second in matriculation. a sotto voce mutter from the Bar worked as a solicitor. The firm which School records, however, show that table. I recall being opposed to him employed me regularly briefed him there were only four students in Year and I made some application that as a junior and continued to do so 12 so he came second out of four. he opposed strenuously, but was after he took silk later that year. The Another boarder at Haileybury at overruled by the judge. As I sat down large practice he had developed as a that time was Jeff Sher, who was later I could hear the gruff voice that I junior continued immediately after a leading silk and a regular opponent knew so well mutter, “Gone wrong, he took silk. I briefed John often of John’s at the Bar, and possibly gone wrong”. Peter O’Callaghan told over the next three years or so and another of the four. me that John and he were opponents watching him work was a major John began law at Melbourne in in many cases and that John was, to reason for my decision to go to the 1950. He came into residence at say the least, a ‘very tight settler’. Bar after encouragement from him. in 1951 and, in his His most prevalent offer when Over the following years, I worked years at Ormond, shared a study with negotiations started was to say “as a from time to time with him as his Daryl Dawson. matter of generosity, we will pay your junior, usually acting for seriously John graduated costs”. Well O’Callaghan did well. In injured plaintiffs. Some of those and served articles at the firm of the case I am talking about Barnard’s cases were pretty desperate, such as

68 VBN VBN 69 one involving a young man who had principled advice was to the council. young couple with a special tenacity. dived into Albert Lake, but John took Integrity was always a first principle It was not just members of the Bar them on irrespective of whether he with John. that benefited from John’s generosity. back of the lift back might get paid in due course. Many John was a learned, wise, His clerk, John Dever, said “John of the cases I did with John were on compassionate and very practical Barnard was my mentor and trusted circuit and I observed how much he ethics committee chairman—and advisor after my father passed enjoyed acting for country people. such a master in managing meetings away in 1985. His superb counsel He was truly interested in their lives, of the committee that, on the one was reliable, trusted and given with and he enjoyed nothing more than hand, members of the committee kindness and understanding. A great discussing rainfall patterns, the price felt that they’d been able to express person has left us.” of sheep or cattle and the background their views but, on the other hand, Similar notices came from John’s of those people. There was not an the business of the committee was beloved Phillip Island. The Board ounce of pretension in John. He conducted expeditiously. of the Western Port Seagrass would be the same person, whether I mentioned John’s resilience. The Partnership paid tribute to his many talking to a grizzled old shearer or members of the Bar Council of 1986 years of wise counsel and tenacious the Governor. I recall Alex Chernov will never forget a meeting in late efforts to champion the cause of describing John as the Bar’s answer September at which John, who was protecting Western Port. Those in to Henry Bolte. never late, was not present. Suddenly the Phillip Island community who One of those circuit cases involved Alex Chernov came into the meeting fought to keep the local hospital a young man who suffered paraplegia with an anguished look on his face also benefited from John’s generous as a result of a single motorcycle and informed us of the dreadful advice. And of course, John was accident on what we claimed was an and tragic death of John’s daughter, beloved by his friends on the 17th inadequately maintained and poorly Beth. Few, if any, of us could imagine floor, such as Chernov, Costigan, repaired bridge near Hamilton. The the depths of grief which John and and Hedigan, who Ruskin tells me case was against the president and Margaret and the children suffered would each afternoon during the councillors of the local shire. I recall nearly 31 years ago. six months of the PQ case stick well the mischievous look on John’s John came back to work very soon his head around the door, and in face when we found out that the after. I suspect that his work was language I shall not repeat, castigate president of the Dunkeld Shire his antidote to grief. At the time, he them both for being on a ‘gravy was none other than the father of and I were representing a number train’. Chernov recently said “thank Allan Myers. of plaintiffs who had suffered loss heavens Barnard’s room was between Amongst John’s many other in the Ash Wednesday fires. On one my room and Hedigan’s”. Of course, attributes as a barrister, his occasion in late 1986, we were having there were others on that floor who unquestionable integrity, his a conference in John’s chambers also worshipped John, such as a resilience and tenacity, and the on the 17th floor with a young then very young Paul Santamaria interest he had in encouraging other married couple who were farmers who John enjoyed teasing. Michael barristers stand out in my mind. in the Hamilton area. During the Crennan said that “in the years we John was a great mentor of so many conference, we learned that both spent on the 17h floor we rarely had people at the Bar, whether junior or of them had been at Longerong a day when John did not instruct or senior. Alex Chernov spelt out how Agricultural College at the same time amuse us. We were so lucky to be on John’s deep knowledge of the law and as Beth. This was the only time I ever that floor with him”. Alex Chernov its common-sense application were saw a slight chink in the resilience noted that John had a great and a great help to him, and that John’s of John. He stopped taking his notes, wicked sense of humour that came friendship was important to him which, as always, he was doing with out to level anyone getting ahead when he was under pressure during his Parker fountain pen on blue of themselves—often that included his time as chair of the Bar. paper, and swivelled his chair around Chernov. John’s service to the Victorian Bar with his back to us looking out the It may be that John’s pupil, Gillies, was prodigious. He served eight window. I knew what had upset him learned something from John about years on the Bar Council, six of those and it seemed to me at the time he causing mischief. Shortly before on the executive committee; and looked away for minutes, but it was the PQ case, John had had his first was vice-chairman in 1983-84. John probably a matter of seconds. When hip replacement, and had spent served a remarkable eight years on he turned around, I thought I saw much of his convalescence teaching the ethics committee, five of those as a slight tear in his eye and then he himself how to use a computer. He chairman. I was a member of the Bar resumed the conference. Of course, became pretty proficient and as this Council for those years and saw first- John cared for every client he acted was 1989, few barristers were using hand how important his wise and for, but thereafter he acted for this computers. Accordingly, when the PQ

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trial started, John was regarded by One sadness at the end of his life Hartog Carel Berkeley everybody in the trial as the expert was the loss of Margaret. She had in checking transcript references expected to be looking after him in Bar Roll No. 601 and the trial judge would often ask his old age. Sadly, that was not to be, The following is a distilled version John to check on his machine (as but John’s children took over much of of the “Address to Celebrate the Life of the judge called it) for a particular the responsibility for that. It Hartog Berkeley QC” delivered at the passage in the transcript. However, seems resilience is also a genetic Essoign Club, Victorian Bar on Monday John had, in that trial, to contend not Barnard trait. 6 March 2017 only with ‘the law of the jungle’ but Another sadness two months with his former pupil Ross Gillies QC, before John’s death was the untimely who was leading Jack Forrest. Forrest death of his close friend, John Clarke. had reasonable computer skills but In some ways, John’s final dementia was much slower than John. There was a blessing, in that had he been were two bar tables, one behind the able to fully comprehend it, he other in the 11th Court. Gillies and would have been devastated by the Forrest were at the second bar table, death of his much younger friend. immediately adjacent to the power John Clarke’s wife, Helen, told of cord to John’s computer. Gillies, tiring the friendship she and her husband of his old master having become the shared with John and Margaret. She computer king in the trial, would recounted an expedition to see two unplug the extension cord, thus sea eagles that were nesting on John enabling Jack Forrest to find the and Margaret’s property: two adult passage the judge was asking about birds, nesting with their chick. The first, leaving Barnard exasperated drama and the humour of John’s about his constantly failing computer. commentary and the adventure of John retired from practice in 2000 driving in John’s truck to a suitable artog Carel Berkeley QC, after more than 44 years at the viewing position were enjoyed a delightful, fun loving, Bar, more than 26 years as Queen’s almost as much as the spectacle of generous, kind and Counsel. After his retirement, John the nest. colourful, and somewhat eccentric spent nearly all his time at the Helen recalled the great friendship Hmember of the Victorian Bar for farm. He rarely came to Melbourne, that the two Johns enjoyed, their 46 years, 10 of which he served as although he maintained an interest common interest in birdlife, Solicitor–General for the State of in what was going on. He read the conservation, farming, and the world Victoria, died on 17 February of this law list and would say things to me of politics and law. John Clarke was in year at the age of 88. such as “What is Chernov up to? I awe of John’s sharp mind and dogged Hartog personified the collegiality haven’t seen his name in the law pursuit of the rule of law. John and generosity of the Inner Bar. list for a while.” He played golf for a Barnard was a mine of interesting Hartog was also passionately period, pretty badly really, but it was stories, informed opinion, local committed to the independent something he shared with Margaret history, and legal and political gossip. Victorian Bar and to the community until his hip gave him so much He was also enormously generous of the Bar. He was unerring in his trouble that he had to give it up. He and kind to his friend. The two Johns personal support and generosity had a second hip replacement and, were very amused by one another to his friends and close personal although he did not resume golf, it did and laughed a lot, sharing one of colleagues. not slow him down. Soon after that hip those unique friendships between Now something of Hartog’s replacement, neighbours found him up an older and a younger man, who in colourful story. to his waist in one of his dams, trying other ways were quite different. Hartog’s family, the Berkelouw to rescue a cow that had somehow John also advised and greatly family, were Eastern European got stuck in there. He and Margaret assisted his friend with the still Jews who fled to Holland. They enjoyed the years up until 2012, she ongoing project of conserving and became upper echelon, Antiquarian playing quite a bit of bridge at the protecting the unique Rhyll Inlet and Booksellers from 1812, in Phillip Island Bridge Club and he fully its wetland surroundings. Holland. Hartog’s grandfather and engaged in the farm, with the seagrass The Phillip Island wetlands has namesake, Hartog, expanded the committee, and in providing free wise lost two of its greatest champions business and gained membership advice to Phillip Island locals involved and the Victorian Bar has lost one of of the International Antiquarian in such issues as trying to retain the its greats. Booksellers Association. Hartog’s local hospital. THE HON MURRAY KELLAM AO father, Leo, worked in the

70 VBN VBN 71 Antiquarian Book business for the song helped with his running children, Susan and Leo, were part of a period, but left Holland for rhythm. Hartog completed this the Berkeley Family. England; and worked in retail marathon in 3 hours, 32 minutes It was apparently very lean at the back of the lift back clothing in London. and 32 seconds. New South Wales Bar at this time. Hartog, still Berkelouw, was born »» His fourth passion was the Law. There was no “floating work” to in London on the 14th of August On arrival in Australia, Hartog speak of and, in his first six months, 1928. He attended school at the Roan initially worked for a couple of years Hartog had, he said, only one brief. School for Boys in Greenwich then at on the land as a sheep rouseabout Encouraged by one solicitor, who Eltham College in Kent. and with shearers. He worked on promised that his firm would support World War II was devastating a dairy farm in Bega, up every him, Hartog came to Victoria and for the family. Hartog’s father and morning, at 4am to round up the was admitted to practice here on the family were in England. Hartog lost cows. That only lasted a few months. 1st of June 1959. He was required to two uncles in Europe; and in the Then there was a 5-acre market- Read again at the Victorian Bar. This siege of Rotterdam, Berkelouw Books garden on Forest Way, New South resulted in Hartog Reading for six was bombed and its entire stock Wales. And, with his brother Klaas, months with Bill Harris, later Harris destroyed. there was a two-ton Austin truck, and QC, Bar Chairman and Supreme It was at about the end of the War, a concreting job in East Linfield. Court Judge. upon completion of his secondary At the age of 25, Hartog was ready For most Mentors (“Masters” schooling, that Hartog began an for marriage, membership of the New as they were then known), the Arts and Economics course at the South Wales Scottish Regiment and, a instruction and mentoring of a University of London. But this was year later, the study of Law. Reader comes after they have been interrupted by the family move to At about this time Hartog met his admitted to practice. Australia, more particularly to New first wife to be, Margaret Bingham. Not with Hartog. For Bill Harris, South Wales. Hartog, however, had Margaret was the daughter of Colin his work with this Reader began remained in England to finish the Bingham – who was a leader-writer at his pupil’s admission in Victoria. academic year and sit his exams, after and foreign affairs correspondent for Harris had agreed to move Hartog’s which, unaccompanied, he travelled the Sydney Morning Herald. admission. to Australia to join his family in 1947. In about 1954, and now married But things were to get off to a It was indeed an arduous flight in to Margaret, Hartog commenced his rocky start because, with typical stages by Seaplane. This would have legal studies. Hartogian insouciance, Hartog failed been an epic trip for a lone 18 year Hartog did not go to the University to turn up on time for his admission, old young man. of Sydney Law School, then the believing that the ceremony would It was in Australia that Hartog’s only New South Wales Law School start at 10.30 am. father Leo anglicised the family name in existence. Rather, Hartog took On the 1st of June 1959, the to “Berkeley”. the alternative course and sat Full Court, presided over by the Hartog’s love of his family was his the Barristers Admission Board Chief Justice Sir , life force and foundation. Beyond examinations. Unlike the Victorian convened to hear three applications family, Hartog had at least four equivalent, which had the Council of for admission at 10 o’clock in the conspicuous passions: Legal Education course at the Royal Banco Court. Bill Harris was at the »» Books were in his blood – Melbourne Institute of Technology, Bar Table, but alas, no Hartog. Berkelouw Books dating back to the New South Wales Barristers Harris was, to say the least, 1812. Hartog well remembered his Board was only an examining body, understandably grumpy. However, Grandfather’s Antiquarian book there were no lectures. Hartog had with characteristic determination shop in Rotterdam. simply to buy the text books and and generosity, Harris approached »» His second passion was the land casebooks, and some lecture notes, the Chief Justice and the Full Court – that emerged very strongly in and learn it for himself. re-convened at 2:15pm to hear Australia. High Court Justice Michael the one remaining application for »» His third passion was fitness, McHugh qualified for admission to admission. At 2.15 pm Hartog had to Hartog was a passionate runner. practice in New South Wales in this give Sir Edmund an undertaking that »» He participated in more than same way, and was admitted in 1961, he would, thereafter, read the Law one Marathon, including the just a few years after Hartog in 1958. List in The Age every day. Big M Frankston to Melbourne After admission to the New South Another favourite story of Hartog’s Marathon in 1984. He trained with Wales Bar, Hartog began Reading about his very early days at the Bar his beloved dog “Phoebe” while with Tom Hughes. At this point concerns his good fortune in landing humming snatches of “Bye Bye Hartog was 30 years of age, had been two briefs on the one day. Hartog Blackbird” because Hartog believed married for 5 years, and his two discovered how this occurred when

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he overheard his then Clerk, Percy Commonwealth Crown Solicitor. The writer of the song engaged in Dever say on the telephone: “Well When the centenary of the more than one bit of poetic licence there is always Berkeley” and after Victorian Bar rolled around in 1984, because Hartog’s father was not in a prolonged silence (during which Bar thespians – Graeme Thomson, fact a lawyer. Percy listened to the Solicitor on the Simon Wilson and Paul Elliott — Hartog followed Sir Henry other end), Percy said “Yes, I know – approached Hartog with the idea Winneke, Tony Murray and Sir Daryl but he’s cheap”. of doing a Bar Revue entitled ‘The Dawson in the role of Solicitor– Soon after his admission to the Life and Times of Judge John Doe’. General. The Premier with whom he Victorian Bar on 1 June 1959, Hartog Hartog wrote a personal cheque on worked most, the Honourable John signed the Bar Roll on 25 June 1959 the spot when he learnt how much Cain, recollects Hartog’s painstaking and took silk in 1972. Hartog served they would need to get it going. A determination to heed Sir Henry as Chairman of the Bar Council for brilliant conceit in the revue was Winneke’s thoughts on the shape two years from 1979 to 1981 and that the hero John Doe had once of the role and to maintain the served at the same time as President read for the Bar with Warthog independence so essential to the of the Australian Bar Association. Darkly – loosely based on ‘you know proper discharge of duties. For 10 years between 1982–1992, who’ — and played brilliantly as I One of Hartog’s favourite stories Hartog served as Solicitor–General mentioned by Doug Salek. At the about himself as Solicitor–General for the State of Victoria. Before then time Hartog’s brothers ran Berkeley (when he was the most junior of he was involved in numerous Bar Cleaning Company Pty Ltd. So, them) concerned his theory of Council Committees. He chaired the on stage Hartog’s chambers were section 109 of the Constitution, a important Ethics Committee from bedecked as a drycleaners complete theory unmediated I have to say by 1976 to 1977 and was a director of with an ironing board as a desk and Brian Shaw or me. Hartog addressed Barristers Chambers Limited from the hapless reader John Doe sitting the High Court thus: 1974 to 1979. Hartog retired from full quietly in the corner. Whilst spraying ‘I would like your Honours to time practice at the end of June 2005. poor John Doe regularly, with his imagine a diagram often found in my He was a special guest that year at steam iron Hartog/Warthog ironed books of logic. It contains a big circle the Bar Dinner, having signed the shirts and sang: enclosing a smaller circle. The big Bar Roll more than 45 years earlier. circle represents insurance generally, ‘I’m Melbourne’s leading legal He was in good company with his that belongs to the Commonwealth. brain original companion in chambers, The smaller circle represents State Gerard Nash, the late James Merralls, I’m wise to all the loopholes insurance, the Commonwealth Brian Bourke and David Kendall. cannot have that. Your Honours, this And very modestly, I maintain The milestones highlight that is called the “doughnut theory” of Hartog spent 46 years as a barrister, I haven’t any scrup-holes. Constitutional law.’ a profession he loved and in which Hartog, a keen observer of the Let’s not forget my father, a lawyer he was both an outstanding leader demeanour of judges, always said too was he and a generous mentor. More than the Chief Justice of the day Sir that though Hartog was a person In fact he shouted ‘I object!’ the was the only judge of ample mind, well read, fluent, first time he saw me. who did not smile, but Hartog quick witted and very, very funny. claimed that he distinctly saw a I’m the best by far of the Band of He was also courageous in the face tear roll down Sir Anthony’s cheek the Bar of any judicial grumpiness a modus on this occasion. However, Hartog operandi which thankfully has gone. A most obnoxious lawyer may have misunderstood that tear. Hartog described his early life Many Sydneysiders doubt that Sir I’ll press your law suits whilst you at the Bar as one in which he Anthony ever fully recovered from wait had a habit of avoiding his bank his exposure to Hartog’s ruminations manager. He once had a run of And scorch them to annoy you. on the Constitution. bankruptcy petitions for the Deputy By the time Hartog became I’m a lawyer who knows how to Commissioner of Taxation who Solicitor–General he had been sue Hartog said ‘never paid’. When the indulging in whimsy and fun in all time came for Hartog to write the you slander me and that’s my cue aspects of his practice for a very long cheque to pay his provisional tax he time. In the days before instructing I’ll litigate all over you I’m set off against his own tax bill, the solicitors dwelt in marble halls, Warthog the lawyer.’ amount the Deputy Commissioner briefs were often papers (not in any owed him for fees. This resulted in – accompanied by more spraying particular order) tied up with a piece a cheque within a week from the of poor John Doe. of pink ribbon. Hartog took it upon

72 VBN VBN 73 himself to discipline that branch of work”. The small owlish figure was “hobby” farm. He was determined the profession by marking a fee for a present from a grateful reader’s to make it a success. He learned “sorting papers in brief — $150”. group to the Executive Officer of about cattle breeding and artificial back of the lift back Hartog was also very good on the the Bar, then Anna Whitney. Juniors insemination; he went to New South telephone. Once Howard Nathan are represented by Hartog’s very Wales to undertake cattle breeding rang up and said: “Little Jesus here”, good friend Michael Adams and courses. It has been said that to which Hartog replied in his best silks are represented by none other Hartog was more proud of the title baritone: “It’s your father speaking”. than Hartog himself. It is fitting “Studmaster” and of his licence as an On another occasion when a that the lineaments of such a titan “A Class” Artificial Inseminator, than solicitor telephoned to enquire at this Bar remain for all to see. Of of the title QC – and that Certificate about Hartog’s fees, Hartog enquired course, managing to get donations hung in his Chambers for many, “Are you sitting down?” After a of $1000 from each silk to pay for many years – some have quipped conference during which robust the tapestries was a challenge, that Hartog’s adeptness in this area advice was given and solicitors had unsurprisingly there was some had something to do with “the long retreated, Hartog’s junior Chris grumbling. When the tapestries arm of the law”. Canavan, mildly enquired whether were hung, one of the grumblers With Hartog’s special capabilities, the advice was just a tad “too was overheard saying to another: “I drive and enthusiasm Nooken robust?” to which Hartog replied: “It hear they cost a fortune. You could Stud soon evolved into a serious was Lord Halsbury who said ‘people get an antique Persian rug for a Poll Hereford breeding operation, pay us for our opinions, not our lot less.” His friend replied, “True, incorporating the best of Australian, doubts’.” but with an antique Persian rug American and Canadian blood Hartog fostered many major you wouldn’t get Hartog Berkeley lines. Nooken was a frequent Bar enterprises – the Centenary thrown in”. “Best in shed” or “Best of breed” in 1984, the Bar Review I have No epitome of Hartog could omit at the Royal Melbourne Show; and mentioned, the Readers’ Course, the importance to him of family, his Hartog’s cattle not infrequently the tapestries adorning the foyer farm and Anna Berkeley. also took prizes at the Sydney and of Owen Dixon West, the sculpture Hartog was very much a and Dubbo Royal Shows. in East, the Living Legends Dinner, “present” father to Susan and Leo. Margaret died in 2006. Later, and the Essoign Club, of which Occasionally, he came home late; Hartog and Anna Whitney were he was a life member. He named occasionally, he was interstate – but married and Lord Howe Island the Essoign Club probably as a for the most part, Hartog was home became another special place result of idly leafing through a law and very devoted and very involved. for them. dictionary on a slow day. “Essoign” Hartog and Margaret were likewise Like Hartog, Anna, during her is a law French term meaning “an devoted to Suong. long career of excellent service to excuse made for nonappearance” Hartog harboured a deep the Victorian Bar for the best part in court.1 The original name of his appreciation and love of nature – of of 25 years, initially assisting Miss farm “Shifty Nooking” came straight the Australian bush. Hiking, often Dorothy Brennan and then, for from a judgment of Lord Denning alone, invigorated Hartog physically some 17 years, Executive Officer in the style of: “It was bluebell time and mentally. He also took his of the Bar Council, has made a in Kent …”. Such things illustrate children Susan and Leo hiking. most valuable contribution to Hartog’s tremendous capacity to find Margaret, who had also worked the Victorian Bar. Amongst other amusement, part of his biophilia, as a journalist, taught English as a things, Anna was, for many years, even when reading law dictionaries Second Language at the Prahran the Administrative Officer of or judgments. Multicultural Society – and helped at the Bar Readers Course and the As to the tapestries, when Owen the Prahran Op Shop. Hartog helped Administrative Support of the Bar Dixon West was finished, Graeme the Multicultural Society buy land at Ethics Committee. In those days, Uren and David Byrne thought Inverloch for a camp site. Margaret those at the Bar all knew, respected of having in it some work of art and Hartog also helped run many of and warmed to Anna. donated by the silks. Brian Shaw, the annual holiday camps for new Anna has brought so much joy Hartog and Stephen Charles put immigrants, at different places such and satisfaction to Hartog’s life on their thinking caps and the as Phillip Island. and Hartog likewise to Anna’s life. tapestries are the result while David And there was Hartog’s beloved This has always been plain for all Byrne collected the donations, farm at Thornton. to see. One example is a project of achieving a recovery rate many a Hartog was determined that Shifty which Hartog was so proud and liquidator might envy. The theme of Nooking, as his farm was named, which gave him many years of great the Western tapestry is “Barristers at would not be just a city barrister’s pleasure. That was the completion

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of the Nooken Park homestead at John Arthur Riordan “acting on” a point he thought Thornton. needed to be made. His response to Anna largely designed and Bar Roll No 1094 what he regarded as the absurdity managed the construction of the of the wig wearing debates was to Berkeleys’ truly stunning home at turn up in chambers sporting the the farm. Every visit there involved most enormous Afro wig. Playing on Hartog taking one on a tour during a friend’s obsession with celebrities, which he, again and again, pointed he attended his place of work to aspects of the building’s beauty, “disguised” as Kylie Minogue. In one clever design and functionality, controversy, he wore a full burqa to saying: “Anna did this” ... “Anna a lunch to clinch an argument in his thought of that” ... “isn’t that clever favour, and in another, he attended or isn’t that stunning” … “that was a function at a conservative club Anna’s idea”. in the guise of a destitute and Anna was always 100 percent homeless man to drive home a there in the hard times for Hartog; point about social justice. He once and likewise Hartog for Anna. walked through a crowded Domino’s In 2008, Hartog suffered a serious wearing an enormous rabbit’s y last, and lasting, memory stroke which initially compromised head…..I think that one was just for of John was a visit to his quality of life quite significantly. the hell of it. I could go on. He was him at the Epworth Anna left absolutely no stone M unique. He abhorred blandness. hospital with Matthew Harvey and unturned in her campaign of love His professional approach to his Philip Barton a week or so after and support aimed at ensuring legal work was uncompromising. his bypass surgery. He was in fine that Hartog would fully recover His preparation of cases, meticulous. spirits. The operation had been a his health and vitality – after His paper work honed to elegant success. Family photos surrounded prolonged sustained efforts Anna expression. Not a word was wasted; him. He was disobeying orders was successful. Hartog was very opinions were clearly stated. He and creating mayhem with nursing often heard to express his profound treated those he acted for with staff, completely normal. As we left gratitude and love for these and so the utmost respect and concern. I shook his hand whilst we made many other devotions. He fought hard for them. He was arrangements to see him at his home It is truly heart-warming that unstintingly generous with the time in a week or so. He was delighted. His Anna and Hartog had such a very he gave to all colleagues that sought smile, as always, revealing enormous happy last year together, including his advice; it was always astute. kindness, generosity of spirit and his an extensive time overseas. It Born in Shepparton on 6 May 1944, sheer delight in being with friends should also be said that this last John was one of six children born and family. News of his death only year’s loving and happy finale of to Clarisse and John Riordan senior, three days later was devastating. To travel together was preceded by so known as “JR”, a lawyer of ability and his many friends at the Bar it was many earlier happy and loving trips renown. John revered JR and spoke inconceivable that a life lived with abroad and around Australia – Anna of him often as a man of principle, such vibrancy could have been so and Hartog were great travellers. dignity and humility. He was his suddenly ended. Bernard Shaw once said father’s son. John challenged conventions. He something apposite to the great man John’s gregarious personality and explained it as his “Irishness.” He we have lost. Bernard Shaw said his love of musicals and theatre came provoked debate and welcomed of a lion of culture and creativity, to the fore early. His performance controversy. He reveled in pointing William Morris: of the lead role of the king in the out absurdities behind commonly local production of the musical “The “You can lose a man by your own accepted views and attitudes. Over King and I” was by all accounts, – death, but not by his. And so until then, regular coffees with friends, debate principally his own, outstanding. let us rejoice in him”. and discussion freewheeled over He’d “out-kinged” even Yul Brynner. all manner of topics. These were Farewell Hartog Members of the 15th floor of Owen frequently raucous with John by Dixon Chambers West were turns provocative, amusing or 1 Jowitts, Dictionary of English Law, 2nd frequently treated to his enthusiastic ed (1977) vol 1 at 722. infuriating. If consensus developed rendition of ”Shall We Dance” as past on any issue he would argue the THE HON SUSAN CRENNAN AC QC AND theatrical glories were re-lived. contrary position. His theatrical THE HON JUSTICE JOHN DIGBY (2017) As a boarder at Xavier College talents saw him sometimes literally John did well academically, and was

74 VBN VBN 75 even Dux. Doubt was cast on this left for Melbourne, signing the Bar Roll as “perhaps … the boldest [enterprise latter claim, it being pointed out in 1974. He read with Donnell Ryan of legal publication] in our country’s that his name was conspicuously QC, later a judge of the Federal Court. history”. John’s uncompromising back of the lift back absent from the Honour Board His intention to develop an industrial commitment to the work’s excellence, hanging in Xavier’s Great Hall. law practice was derailed by the at any cost apparently, led to robust Without pause he explained that in demand for his talents as an advocate and, as John recounted, frequently truth he’d been denied recognition in the common-law personal injuries fraught and hilarious exchanges with of his achievement as punishment jurisdiction. the LBC’s uncomprehending and for having sealed up the offices of An early case of note was Brisbane beady-eyed bean counters. the reviled head of cadets and filling v Cross [1978] VR 49 (Young CJ, In the mid-90s John returned to full- the room with water from a hose McInerney and Dunn JJ) in which time practice at the Bar, resuming work left running throughout the night. John appeared as counsel for the principally in common law personal Knowing John, that was accepted as appellant before the Full Court. John injuries trials but also appearing an entirely plausible explanation. sought to persuade their Honours in a wide variety of cases including John studied law at the University of that the common law rule in Searle commercial disputes, defamation and Melbourne. He was a diligent student v Wallbank (landowner immune if property law. and excelled. He was a resident in livestock stray onto the road) did In 2007, John, for the first time, Newman College where he made not form part of the common law of applied for silk. He had come to the lifelong friendships including that of Victoria. The respondent’s counsel view that despite his objections to Bernard Bongiorno QC, later DPP and was the formidably clever Brian silk generally, without it his ability to Justice of Appeal, who was best man at Shaw QC. John’s submissions were attract the better cases for plaintiffs in John and Angela’s wedding. able and thorough, prompting a common law matters and so advance On graduation he returned to compliment in the course of argument his career was limited: largely because Shepparton to work in the family firm, from McInerney J. John recalled defendants (invariably insured), Riordan & Riordan. He was admitted that at a particular high point in his briefed silk as a matter of course to practice in March 1967 and found submissions he glanced across the and, as a number of his instructing himself involved immediately in a bar table towards Shaw, expecting to solicitors explained, it was difficult to wide variety of interesting legal work, observe some unease. On the contrary, convince an anxious plaintiff that there none more so than as solicitor acting Shaw had remained completely was no need for them too to retain in the defence of Leith Ratten, who’d composed, calmly reading Newton’s silk when the cost of doing so would been charged with his wife’s murder. Principia Mathematica – till then not always be recoverable as reasonable. The trial, conducted by Chief Justice widely appreciated as a leading treatise His application was not successful. Sir , was a sensation on the law relating to straying cattle. Reasons were not given. There was at the time. Ratten was convicted but By the late-80s John’s practice was no right of appeal. This was the way maintained his innocence. The matter large and, had he applied, would it had always been. In John’s view the ultimately went on appeal to the High certainly have justified silk. Instead process was shrouded in unjustifiable Court and the question of his guilt or he decided to pursue further study secrecy, unburdened by considerations innocence divided opinion for years. at Oxford University where he of natural justice, that lawyers would Never one to baulk at a challenge, ultimately obtained a diploma of law otherwise ordinarily regard as totally in 1971, aged 27, John ran for a seat completing his thesis in an industrial unacceptable. So began his highly in Federal Parliament standing as law related topic. public, fearless and, in the view of Labor’s endorsed candidate for the seat On return to Australia he was some, quixotic campaign fought over of Murray. Then, as now, the seat was determined to give expression to an the next three to four years to force staunchly conservative. John’s political idea that he’d conceived some time change. In the end his efforts did not hero, Gough Whitlam, launched his previously for a new encyclopaedia go entirely unrewarded and quite apart campaign, which included cameo of Australian law. He persuaded the from generating valuable discussion appearances by then ACTU president Law Book Company to back the on the matter, they led to an inquiry Bob Hawke. Whilst he didn’t win, John concept, becoming the founding by former Appeal Justice, Murray had taken to the hustings with gusto, Editor-in–Chief of what was to be Kellam, which resulted in changes achieving a 17% swing to Labor. Sadly “The Laws of Australia”. He gathered clarifying the process and ensuring the loss put an end to John’s modest the best practitioners and academics that a disappointed applicant can ambition to become Prime Minister by to contribute to the work under a now at least seek “feedback” from the his 30th birthday. He’d later concede to distinguished advisory board headed President of the Bar. a touch of hubris, but just a touch. by Sir Zelman Cowen. At TLA’s launch The public campaign gave John Shepparton was always unlikely to in 1993 Justice Kirby, then President of his 15 minutes of fame. Attending a contain such a spirited personality. He the NSW Court of Appeal, described it function with his brother-in-law, Alan

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Archibald QC, a young lawyer on being introduced to both followed with, “Ah, the famous John Riordan, I know all Gonged! about you…. what do you do Alan?” More recently, John’s restless Australia Day Awards 2017 Other Appointments intellect and creativity led to his Her Excellency, the Hon Linda Dessau AC Allan Myers AM QC - Chancellor of writing a book on superannuation, The Hon Justice Mark Weinberg AO the University of Melbourne Total and Permanent Disablement in The Hon Stephen Charles AO QC Dr Stephen Paul Donaghue QC - Superannuation and Insurance. The The Hon Justice Kevin Bell AM Solicitor-General of Australia second edition is soon to be published. The Hon Elizabeth Curtain AM Simon Molesworth AO QC Judge of At the still centre of John’s life was The Hon Nahum Mushin AM the Land and Environment Court of Angela, his life partner, their children, The Hon Kevin Mahony AM New South Wales Andrew, Bridie and John, their partners Brian Walters AM QC Julian McMahon - LCA 2016 and his adored grandchildren. To be in William Lye OAM President’s Medal their company was to see a family that Gemma Varley PSM Christopher Horan QC - Vic Bar Pro crackles with love and joy. Queen’s Birthday Awards Bono Trophy The Bar prides itself as home for Julian McMahon AC the intellectually curious and those The Hon Joseph Kay AM of fearless independence. John was a Brian Bourke AM barrister’s barrister. MARK CAMPBELL

Victorian Bar Readers March 2017

back row: Coral Alden, Thomas Barry, Amelia Hughes, Angus Christophersen, David Easteal, Calum Henderson, Fatmir Badali, Leo Faust, Jim Hartley, Matthew Peckham, David Carolan, Alice Muhlebach, James Davaris, Duncan Chisholm middle row: Rachel Chrapot, Sarah Lenthall, Nancy Grunwald, Angela Sharpley, Jennifer McGarvie, Reegan Morison, Elizabeth Bateman, Stephanie Wallace, Katherine Farrell, Carina Moore, Jordan Schulz, Robert Paoletti, Stragen Foo, Briana Goding, Samantha Seoud, Estelle Frawley, Julia Kretzenbacher, Wendy Pollock seated: Lachlan Carter, James Tierney, Daphne Foong, Scott Davison, Fiona Hudgson, Natalie Campbell, Christopher McDermott, James Humphris, Jonathan Barrington, Abbie Roodenburg, Andrew McRobert, James Plunkett, Johannes Schmidt

76 VBN VBN 77 Brewer’s Dictionary of Phrase and Fable says: “Fish-wives Boilerplate are renowned for their flow of invective, hence the term is sometimes applied to a vulgar, scolding female”. boilerplate A BIT ABOUT WORDS Johnson also recognised the several meanings of wife. In his first edition, he defines wife as “A woman who has a husband”, and he says it is also “used for a woman of low employment”. He illustrates this with a quote from Bacon “Strawberry wives lay two or three great strawberries at Midwife the mouth of their pot, and all the rest are little ones”. This suggests a usage equivalent to apple-wife and JULIAN BURNSIDE fish-wife, although I confess to having never heard of a strawberry wife. Stumbling across this quote from Bacon led me to discover some of the more obvious limitations idwife is an odd word, of Google. Searching for strawberry wife produced results but so common that ranging from the name of the wife of an American we rarely pause baseball player called Darryl Strawberry (her name is to consider its Tracey) to recommended dining and accommodation origins, because its opportunities. meaning is generally Be strawberry wives as they may, Brewer says that understood and not attended by the ambiguity which housewife is an expression equivalent to ale-wife and fish- haunts so many English words. wife, but this seems surprising: a reference to a housewife According to the OED, the received meaning would be understood, almost universally, as a reference of midwife is “A woman who assists to a married woman. The OED says that housewife is otherM women in childbirth, a female “usually a married woman”. Another meaning of accoucheur.” It has been used with housewife given by OED is “A light, worthless, or that meaning since the early 14th pert woman or girl…”, but adds that it is obsolete, century. But that’s where the clarity unless in its old spelling of huswife, now shortened ends. The first component of midwife is to hussy. Although hussy is generally regarded as uncertain, and the second is surprising. an insulting term (as the OED reference suggests) Mid- might be an adjective, denoting in some parts of rural England it simply means something “in the middle of” something woman or lass but even if the definition starts else; or it might be a preposition, denoting politely, it quickly descends into insult: “association, connexion, accompaniment, “In some rural districts a mere proximity…”. In this meaning, it is equivalent of Woman, lass; hence, a readily linked to the German mit, strong country woman, a female meaning with. of the lower orders; a woman of So, the first element, mid-, is low or improper behaviour, or of ambiguous. And the second element, light or worthless character; an -wife, is used with its very early ill-behaved, pert, or mischievous meaning of woman. As girl; a jade, a minx. …”. the OED has it, wife The Macquarie Dictionary says once meant “A woman: that a wife is a “woman joined in formerly in general marriage to a man as husband”, but sense; in later use it adds that it can also mean woman, restricted to a woman but says this is archaic. of humble rank or ‘of low The Macquarie definition accords well employment’, especially with received understanding: wife is now one engaged in the sale of fairly specific in its meaning of a woman some commodity…” So, there who is married, although it can be used in were constructions (like midwife) but no other applications. It is sometimes used longer in general use, like ale-wife (a to refer to the female partner in a pair of woman who kept an ale-house); apple- animals, and in slang use it can refer to wife (a woman who sells apples). And the passive member of a homosexual (not yet forgotten, but not much used) partnership. fish-wife: a woman who sells fish, but And all this brings us, naturally this is often used disparagingly. As illustration by guy shield by illustration enough, to The Handmaid’s Tale:

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a book written in 1985 by Margaret The Macquarie Dictionary says that a wife is a Attwood and recently made into a 10- “woman joined in marriage to a man as husband”, part series shown on SBS television. As well as its TV treatment, the but it adds that it can also mean woman, but says book has been made into an opera this is archaic. (in 1990) and a film (in 2000). It is horses, yeomen for the household, the Common Quaker; the Dot; the a dystopian look at a near future in yeomen of the larder, yeomen for the Elephant hawk; the Figure of eighty; which a strongly male-dominated mouth (specifically, the King’s mouth), the Snout; the Small dusty wave; the religious sect takes control of the yeomen of the revels, yeomen of the Turnip and the True lovers’ knot (imaginary) American State of robes, yeomen of the stable, yeomen moth. Gilead. Apart from its lacerating of the stirrup, yeomen of the tents, and And for reasons I have not critique of the subjugation of women, yeomen of the wardrobe. These are all yet worked out, pugs feature The Handmaid’s Tale revives the self-explanatory, apart from yeoman disproportionately in the names of word handmaid, a word largely out of the ewery. This was a yeoman who moths. There’s the Ash pug moth; of use, almost forgotten, but still was specifically in charge of ewers: jugs the Bordered pug; the Currant pug; recognisable. It echoes Chaucer’s with wide spouts, especially useful for the Foxglove pug; the Golden-rod Canterbury Tales, although Chaucer bathing, in days before the convenience pug; the Green pug; the Grey pug; did not include a Handmaid’s Tale. of modern plumbing. Not many houses the Juniper pug; the Lime-speck The Canterbury Tales include tales these days have a room specifically pug; the Mottled pug; the Slender by several named people, and people designed to hold a significant number pug; the Tawny speckled pug and the of many well-recognised occupations of ewers. Wormwood pug moth. Go figure. (knight, miller, cook, man of law, A franklin was a freeman, but not a Pug is a word with a surprising wife of Bath, clerk, merchant, squire, man of noble birth. variety of meanings. As an physician, shipman, prioress, friar, A handmaid, on the other hand, abbreviation of pugilist, it is a fighter, monk, nun, priest, and parson). was not free. A handmaid was (is ?) which may account for the name But it also includes The Reeve’s Tale, a female servant. A handmaid is also of the variety of dogs which bears The Summoner’s Tale, The Manciple’s a species of moth. So, also, is the the name. A much rarer meaning Tale, The Pardoner’s Tale, The Canon’s Miller moth. is a mixture of loam or clay ready Yeoman’s Tale, and The Franklin’s Tale. Until I started looking at the for making bricks. It also means the But no Handmaid’s Tale. meaning of handmaid, I had not footprint of an animal, from the Hindi Most of these refer to familiar realised how many varieties of word pag, meaning foot. Another rare occupations, but with names we no moths exist. About 160,000 according meaning of pug is given by OED as longer recognise. to the Smithsonian. “The husks of any kind of small seed A reeve was an official holding Moths are part of the insect family, in which are separated in cleaning it; office under the Crown, similar to a the order Lepidoptera. They are distinct the chaff of wheat or oats, the awns of magistrate or, in some cases, a bailiff. from other insects because most of barley, etc.; the refuse corn separated A summoner was a petty officer who them have scales on their wings, in winnowing.” From this we have warns people to appear in court. and (crucially) they can coil up their pug-drink, which is pressed apples A manciple was an officer who proboscis. A handy trick no doubt, and before they ferment: non-alcoholic bought supplies for a college, an inn of useful for entomologists. cider. Until the late 17th century pug court, or a monastery. It could also be a There are six families also referred to a bargeman. servant more generally. of moths: the Tiger Moths The other surviving meanings of A pardoner was, as its name suggests (Arctiidae); the Geometridae, the pug include: a servant of superior a person who was licensed to sell papal Sphingidae, the Saturniidae, the rank, an imp or dwarf, and an ape pardons or indulgences. Microlepidoptera (very small) and or monkey. A canon’s yeoman was a yeoman the Noctuidae (very large). But, closest to my starting point, specifically under the control of a Canon. Despite the predictable Latinisms there are several obsolete meanings A yeoman was a servant or attendant of their zoological classifications, of pug. From 1566 to 1611 it was used in a royal (or noble) household or, it many moths have names much more as a term of endearment for a person. would seem, an ecclesiastical household. evocative than the Miller moth. But from 1600 to 1719 it meant a Sometimes a yeoman’s services were For example: courtesan or mistress or harlot. quite specialised. So, there were The American dagger moth; the It is not the only instance of a yeomen of the bottles, yeomen of the Brick; the Brimstone; the Clouded word which starts life affectionately buttery, yeomen of the cellar, yeomen border; the Clouded-bordered but ultimately becomes an insult of the chamber, yeomen of the crown, brindle; the Common footman; to women. yeomen of the ewery, yeomen of the

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Brian Bourke in front of OFF THE WALL… his portrait by Karl Schott The Peter O’Callaghan QC Gallery Foundation Ltd launch: the stuff of legends

SIOBHÁN RYAN, ART & COLLECTIONS COMMITTEE

ince opening in October 2014, the Peter The logical next step in the gallery’s evolution was the O’Callaghan QC Gallery has made its establishment of the Peter O’Callaghan QC Gallery mark on the life of the Bar. The once Foundation Ltd to ensure its viability and secure disparate collection, now augmented by future acquisitions. new commissions, loans and gifts - six new On 8 June 2017, the founding directors, Peter Jopling portraits in two years - seems to watch AM QC, Jennifer Batrouney QC, Matt Collins QC and Sover the barristers as they sweep through the space. Wendy Harris QC gathered members of the Bar and the 80 VBN VBN 81 boilerplate

judiciary to launch the Foundation The portrait will be painted by the celebrated artist, and spruik its deductable gift Rick Amor, who also painted the Bar’s portrait of Sir recipient status. In the best . tradition of the Bar, the evening was characterised by talk of legends, International. Bourke’s portrait has Finally, the Chief Justice Warren rather than the fundraising one its own story involving the artist was called upon to announce the comes to expect at these events. (a former client), the Werribee 7- Foundation’s second commission - a Peter Jopling opened by welcoming Eleven, the South Melbourne Football portrait of Ross Gillies QC. Gillies Justice Gordon of the High Court Club, a confession, and a Bourkesian QC, yet another Legend of 2012, (and a member of our Bar) and outcome at trial. has made an immense contribution confirmed, as we had hoped, that Another Legend (2012), Allan to the Victorian Bar and the she has agreed to become the Myers AC QC was then called upon Common Law Bar, in particular. Foundation’s patron. This role to announce the Foundation’s first He has been the chairman of the complements her Honour’s well- commission which is, appropriately, Common Law Bar Association since known passion for the arts, already a portrait of Peter O’Callaghan 2001 and has chaired Dever’s List manifest in her joint patronage, with QC. Peter (also a Legend of 2012) for decades. Fittingly, his clerk, John the Hon Ken Hayne AC QC, of the was present to hear Myers recall Dever and the List D members have Melbourne Recital Centre’s Legal the early days in Horsham where contributed to this commission. Friends programme. Her Honour O’Callaghan’s first career was as Ross’ mentorship and support of captured an important purpose of a mechanic and where he starred barristers of all ages and callings is the gallery, noting that, “the Peter in the local footy team as a “showy legendary, as is his wit. The Chief O’Callaghan QC Gallery pays tribute full forward”. After Horsham and Justice mused on what it must have to the past and present champions the machine shop came adult been like in Gillies’ room back of the Bar and, at the same time, matriculation at Taylor’s College in the days when his reader is a daily visual reminder and and tertiary education in the was another incorrigible raconteur, inspiration for all who pass by venerable institutions of Melbourne Terry Forrest (now Forrest J). Her the portraits, of the importance of University, Newman College Honour reminded those present contributing to the law, to the broader and the Shakespeare Hotel. The that Gillies QC signed the Bar life of the Victorian Bar and to the Bar beckoned in 1961 (Bar Roll Roll in October ’67 (Bar Roll wider community”. number 622) and with it, years as number 822). Another interesting, Next to be announced, was the a circuiteer with the likes of Neil though perhaps unsurprising, temporary loan of a portrait of Brian McPhee, Francis Villeneuve-Smith statistic is that Ross Gillies Bourke AM by Karl Schott and the and Barry Dove, during which Peter has had more mentions in Bourke family’s promise to bequeath became known around South-West Bar Dinner speeches than any it to the Foundation. Bar President, Victoria as, “O’Callaghan, the well- other barrister; apparently only Jennifer Batrouney QC stepped up known steak and claret man….”. Ruskin, Bongiorno and Beach to speak of “Brian Bourke —The O’Callaghan QC’s more weighty come close. Man and His Portrait”. We were achievements were also remembered: The “Legend” status of Brian reminded that Brian is a “Certified as a director of Barristers Chambers Bourke AM, Peter O’Callaghan QC Legend of the Bar”. Indeed, he is one Limited responsible for building and Ross Gillies QC has previously of the inaugural “Legends” of 1998, Owen Dixon West chambers in the been recognised by their inclusion a fact which can be confirmed by 1980s; a long-standing member of the on the Legends Honour Board. checking the Honour Board in the AFL Appeals Tribunal; an honorary These portraits will be their seals. foyer of Owen Dixon Chambers East. doctorate from the Australian The last word went to Jopling Batrouney spoke of Brian Bourke’s Catholic University; and 20 years QC who, ever on point, rallied long and distinguished service to as the independent commissioner the crowd to contribute to two the Bar and the many people whose for the Catholic Archdiocese, further commissions. Portraits of photo courtesy of j batrouney lives he has touched: coaching the which Myers acknowledged was Sir AC CVO QC and Pentridge Prison debating team to “an astonishing burden” and a “job the Hon Alex Chernov AC QC are the Victorian A Grade Championships done with courage and honesty”. needed to complete the Vice - Regal in 1955; joining the Bar in 1960 The portrait will be painted by the portraits in the collection. Gobbo (Bar Roll number 612); defending celebrated artist, Rick Amor, who and Chernov’s contributions to the Ronald Ryan in 1966, led by Phil also painted the Bar’s portrait of Sir Bar and the Victorian community in Opas QC; co-authoring Bourke’s Ninian Stephen. The funds for this general need no elaboration here. Liquor Laws; and his early ties with commission were generously donated $80,000 needs to be raised - now tax the Australian chapter of Amnesty by Allan Myers AC QC. deductable, of course.

80 VBN VBN 81 RED BAG BLUE BAG solicitors to stand out from the crowd of cane baskets cluttering up their work spaces. When I was a young Blue Bag boilerplate BLUE BAG – a view from junior counsel and keen to attract work from new Dear Red Bag, introduction of professional work solicitors, I was not permitted to Last Christmas, I sent out some to the barrister”, but she thought it advertise or tout, both of which Christmas hampers to my instructors was OK to take the team out to lunch were considered inconsistent with packed with some of my home made after completing a case. Does Bar the ethos of professional life as a chutney. My modern friend G thought Rule 46 prevent me from sending out barrister, in which a barrister is this was a terrific idea, whereas my Christmas presents to my instructors? bound by duties to the court, to other old fashioned friend G was mortified. If so, how is taking your instructor out barristers as well as to the client. She drew my attention to Bar Rule for lunch after finishing a case any The cab-rank rule and the need to 46 that a “barrister must not make different from singing heigh ho to the avoid any and/or any perception a payment or gift to any person by holly with a hamper? of conflicts of interest being at the reason of or in connection with the Blue Bag forefront of every barrister’s mind. Barristers of course remain bound RED BAG – a view from senior counsel by these duties. Taking a solicitor to lunch after Dear Blue Bag, of my favourite Christmas treats, but the completion of a case is not a First I regret to inform you that at that time I was looking around breach of Rule 46. It’s the natural enquiries with my clerk reveal that for good juniors to recommend in conclusion of what is more often no Christmas hamper from you was a class action that has kept me and than not a challenging and arduous received last year. It must have gone my troop of juniors busy with daily task – it matters little whether your astray. Which is a great pity because fees since Christmas and is likely to team is on the winning side. It’s an not only is homemade chutney one do so until next Christmas. If only occasion to say well done and thank I’d had received a Christmas hamper you to everyone for their hard work from you emblazoned with “Blue and to relax. Whilst it may forge a Bag, ODCW “ to remind me that you relationship with your instructing were at the Bar and how much I liked solicitor – it’s not a payment or gift working with you... in connection with the introduction Secondly I’d watch out for your of work from that solicitor. You’ve modern friend “G” this Christmas already done the work. Whilst your – he/she is likely to have a bigger, Christmas hamper is a gift to your more generous and environmentally instructing solicitor, you received no friendly hamper sent out to all of commitment from that solicitor that your instructing solicitors (and any future work will be sent your silks you like to work with). No way. It was not a breach of Rule 46. doubt modern G will have told all If they happen to think fondly of your fellow Blue Bags of your great you, all well and good. If on the next idea and you’ll now have to think occasion they have to brief counsel, of something unique to they brief you – no doubt it will be send to your because of your skills as a barrister rather than as a cook. Yours truly, Red Bag

82 VBN VBN 83 boilerplate The Australian Electoral Commission and the itchy pen philosophy

PETER HEEREY, CHAIRMAN, AUSTRALIAN ELECTORAL COMMISSION, 2009-2016

orking on the Australian providing that the person who is out”, the person in charge is to “write Electoral Commission required to determine the order of the number opposite to a name … in W exposed me to a wonderful names shall “prepare a list of the the list … so that the number called example of the Commonwealth names … in such order as the person out first is opposite to the first name “itchy pen philosophy” of legislative considers appropriate” and then … in the list and the subsequent drafting – the need to dream up all “read out that list”. order of the numbers in the list is the conceivable eventualities and find Then the person is to “place a order in which they are called out”. words to deal with them. Fortunately, number of balls equal to the number Phew! So at last it’s all done? it was an affliction not suffered by the of candidates … being balls of equal Oh, no. What we have now is a list drafters of the Ten Commandments size and weight and each of which is with numbers against the names, for or the Gettysburg Address. marked with a different number, in a example: In Australia, voting is compulsory spherical container large enough to Sally Jones, Greens 2 and preferential. The distribution of allow all the balls in it to move about Bill Smith, Labor 3 voters’ preferences after their first freely when it is rotated”. Tom Black, Liberal 1 preferred candidate is eliminated The section now requires the can often determine the result. Some Alphabetical order would person in charge to “place all the uninterested voters may simply vote give unwarranted advantage balls back in the container”. Then from the top to the bottom down once more there is to be rotation the ballot paper, a phenomenon to the Aarons and the of the container, taking out the sometimes referred to as the Abbotts and discriminate balls by a blindfolded person, “donkey vote”. reading out the number on the So the order of names on a ballot against the Youngs and the ball, and so on. paper is important. How is that order Zapruders. The new sequence of balls might to be determined? Alphabetical order be those numbered 3, 1 and 2, with would give unwarranted advantage Now that you have the balls in the the result that the order of names on to the Aarons and the Abbotts and container, the person in charge must the ballot paper will be Smith on top, discriminate against the Youngs and “rotate the container”. Not only that, then Black and then Jones.] the Zapruders. One would think that he or she must “permit any other There are various other provisions, some form of random selection would person present who wishes to do so including dispensing with the be fair. The legislation might contain to rotate the container”. need for a blindfolded person if an some provision such as: So how are the balls to be removed “approved container” is used; that is, from the container after rotation? “a container in respect of which the The order of names on a ballot paper The section requires that the person Electoral Commissioner has certified shall be determined by lot, to be in charge shall “cause a person in writing that the container is so conducted in public. who is blindfolded and has been constructed that when it is rotated That would be a self-enforcing law. blindfolded since before the rotation no control can be exercised over the Candidates or their agents would of the container … to take the balls, order in which the balls come out of ensure the procedure was conducted or cause the balls to come, out of the the container”. fairly. Eighteen words would cover it. container one by one and, as each Total words in section 213: 710 But section 213 of the ball is taken or comes out, to pass it One trembles to think of the Commonwealth Electoral Act 1918 to another person who shall call out number of cups of tea consumed in goes into more detail—to put it mildly. the number on the ball”. the Office of Parliamentary Counsel The section commences by Then, “as each number is called while this edifice was constructed.

82 VBN VBN 83 BOOK REVIEWS are still evolving) such that appeals which were once conducted over two, or even three, hearing days, are now concluded by lunch-time on the first day when the court boilerplate reserves its judgment. The manner in which the Court of Criminal Appeals Appeal exercises its criminal jurisdiction today is very different from what was done by its statutory predecessor, & Reviews in the Court of Criminal Appeal, in the 1980’s through to 1995. In short, the result of that which I have just described is that the appellate jurisdiction is now much more busy Victoria and it has been opened up to a much broader range of practitioners. Very junior practitioners, who once only ever read the judgments of the Court of Appeal, now O.P. HOLDENSON find themselves drafting court documents which must comply with inflexible rules and conducting interlocutory ver the last 10 years, and particularly appeals, applications for leave to appeal and appeals over the last five years, the work for before that Court. those who practise in the criminal Very junior practitioners, having unsuccessfully run jurisdiction has become very arduous a contest in a Magistrates’ Court, must now consider indeed. The major cause of this whether or not a challenge by way of an application for change in our work has been the many judicial review has prospects of success and, if so, on what Osubstantial and frequent amendments which have been basis. Again, precise court documents which comply with made to the laws with which we criminal lawyers deal on the Practice Notes must be prepared. a daily basis, and the consequences of those amendments. And so a need for a concise, but complete, clear and The substantive criminal law, the rules of evidence, the helpful guide through the maze of the prescriptions of procedural rules and the sentencing laws are no longer both the many Practice Notes and Practice Statements settled, having been transformed over that period by not a and the statutory and general law for not only the most mere stream, but a flood, of legislative activity. Focussing junior, but also the most senior, practitioner in the upon the Victorian Parliament, there has not merely been criminal jurisdiction was created. the enactment of the Evidence Act, 2008, the Criminal And the need has been answered – this authoritative Procedure Act, 2009 and the Jury Directions Act, 2015, but and comprehensive text has been provided. there have been numerous amendments made to other Christopher Corns, a senior academic who has legislation, including the Sentencing Act, 1991, the Crimes published widely in the criminal law, Susan Borġ, an Act, 1958 and the Serious Sex Offenders (Detention and experienced Crown Prosecutor in our County and Supervision) Act, 2009. Supreme Courts and a member of our Bar since 1991 and That legislative activity has led to much uncertainty Adrian Castle, a particularly knowledgeable solicitor who in the law and the imposition of very heavy workloads has served with the Office of Public Prosecutions for well upon both Magistrates and Judges at first instance and over 30 years including 27 years in the “appeals section”, the Court of Appeal. The criminal courts are constantly have come together and written a most helpful text. required to construe and apply the many new statutory Entire chapters have been devoted to appeals and other provisions. In that regard, the Court of Appeal has applications from the Children’s Court, appeals and other become most active, creating a sea of new jurisprudence applications from the Magistrates’ Court, interlocutory which must be constantly “monitored” by each and every criminal appeals, appeals against conviction and sentence practitioner. And in a period which can only be described and other applications (including cases stated) to the as one of limited judicial resources and oppressive Court of Appeal from trials on indictment in the County judicial workloads, much more is expected by the courts and Supreme Courts, statutory appeals on questions of practitioners in their preparation and presentation of law, applications for judicial review to the Supreme of cases. Court, criminal appeals to the Federal Court and criminal Moreover, with respect to the appeals to the High Court. presentation of cases, the appellate courts Within each chapter, the authors have precisely have introduced new (and onerous) identified the statutory source and scope of each practices and procedures (some of which appellate jurisdiction, the nature of the appeal(s) and the powers of the appellate court(s). Criminal Appeals & Reviews In Victoria Each chapter also comprehensively details the relevant Corns, C., Borġ, S. and Castle, A., procedural steps and requirements. And so the most Law Book Co., Thomson Reuters, 2017 junior practitioner can use each chapter as a guide, while the most senior practitioner can use each chapter as a

84 VBN VBN 85 boilerplate Guidance is also given upon how best to prepare for an oral hearing, with pages devoted to the “wants and Prosecuting needs of the appellate court”. BY MARK GIBSON check, in order to ensure that the to describing in helpful detail some case will not be stalled or impeded recent examples of cases decided by some non-compliance with a by the Court of Appeal. procedural requirement, or even fail Reference should also be made to Prosecuting because the practitioner did not know Chapter 10, “Appellate Advocacy”. No by Raymond Gibson and understand the law concerning matter how experienced an advocate Thomson Reuters the incidents of that appeal. may be, the conscientious advocate But of particular importance, every ought always be on the lookout to he recently proposition is supported by the improve his/her ability to persuade. published book citation of relevant current authority. Focussing upon the particular entitled “Prosecuting”, By way of example, the chapter characteristics and “challenges” of T authored by Raymond Gibson, devoted to “Appeals against appellate courts and their judges, this is a simple, easy-to-read, well- Interlocutory Decisions” (Chapter chapter identifies the skills required structured, comprehensive 5) is 30 pages in length. Every step to draft grounds of appeal and court catalogue of just about every in the life of an interlocutory appeal documents which are both concise matter a prosecutor is likely to is described and sourced to the and persuasive. encounter in preparing and then relevant provisions in the Criminal Guidance is also given upon how running a criminal trial. Whilst Procedure Act, 2009 and the Supreme best to prepare for an oral hearing, the book gives useful tips on how Court (Criminal Procedure) Rules, with pages devoted to the “wants to approach prosecuting a trial, 2008. Each of the numerous decisions and needs of the appellate court”. In it also offers defence counsel of the Court of Appeal concerning this context, the leading authorities helpful insight into what they the scope and the subtleties in the which must be understood by every are likely to confront in the exercise of this jurisdiction is, on my appellate advocate are summarised. unfolding of the Crown case. For close reading, accurately cited and Within this chapter, for example, this reason, despite its title, in summarised. The chapter concludes some 6 pages (with 33 footnotes) my view it is as useful to defence by setting out the relevant prescribed are devoted to the first limb of s. counsel as it is for a prosecutor. forms and the Court of Appeal 276(1) of the Criminal Procedure Act, For the younger, less experienced Practice Statement. 2009 which provides that an appeal criminal law practitioner, it In short, no barrister appearing in against conviction must be allowed if is essential to have a written a criminal trial now has any excuse the jury verdict is “unreasonable or checklist of matters requiring for getting any aspect of his/her cannot be supported having regard consideration and analysis. interlocutory appeal to the Court of to the evidence”. Several pages are Almost like a ready-reckoner. For Appeal wrong. devoted to the effective presentation the experienced, more seasoned Turning to the chapter devoted to of submissions in support of this advocate, it is helpful to have a “Appeal and other Applications from “unsafe and unsatisfactory” ground, text you can consult which will Trials on Indictment” (Chapter 6), it the relevant principles from the quickly and efficiently provide comprises some 149 pages and over many authorities then being the answer you are searching for. 700 footnotes. Every aspect of the explained. The book has 14 succinct jurisdiction of the Court of Appeal I could further describe the content chapters, all essential reading. Its is detailed. of this text. To do so, however, would contents include: For example, in the section be simply to repeat the above. Put »» the nature of the charges which deals with the case stated, simply, this text is easy to search, easy themselves and all matters the relevant provisions within to read and truly comprehensive. arising from the charges such as the Criminal Procedure Act, 2009 There is, however, a challenge for severance and joinder; which constitute the source of the authors. As a consequence of the »» the differing types of evidence this jurisdiction are identified overly frequent legislative change to be led by the prosecution and explained by reference to the within the criminal jurisdiction, and including tendency, coincidence authorities. The procedural steps and the proliferation of cases decided by and relationship evidence; the powers of the Court of Appeal the Court of Appeal, it seems to me »» essential techniques for leading are likewise explained, including that this text will need to be revised evidence in order to present the costs. Several pages are then devoted every couple of years. prosecution case;

84 VBN VBN 85 »» refreshing memory in the witness box; »» helpful tips on effective cross- boilerplate Justice Denied examination of an accused person, which are equally HUGH SELBY applicable to any witness; »» a step-by-step guide to appropriately dealing with an riting it Justice Denied unfavourable witness under down will by Bill Hosking QC and section 38 of the Uniform convert a John Suter Linton Evidence Act, including the fanciful Harlequin Books relationship between what speculation an unfavourable witness has to ‘it must previously said and hearsay be so’. In the days before the High W relates is delicious whatever evidence under section 60 of Court said ‘No’ to unsigned written the background. Asked by that that Act; confessions in Driscoll there were judge at a sentencing hearing, ‘How »» suggested ways to deliver NSW Police (including the now does your client explain the events effective opening and closing infamous, convicted murderer, Roger leading to this tragedy?’ Hosking addresses; Rogerson) who knew the forensic replied, ‘ I don’t fucking know’. His »» ethical obligations; and strength of a well constructed, albeit Honour exploded. Hosking then »» the sentencing process and entirely invented, unsigned written added, ‘Answer 46 in my client’s the many responsibilities confession from the suspect. record of interview, Your Honour’. confronting a prosecutor Those skills are not forgotten. What beaten up advocate has not including referring to relevant There are always ‘True Crime’ yearned for an opportunity such as sentencing principles and writers who are adept at turning that. ensuring a sentencing judge rumours and gossip into the That particular story has does not fall into appellable persuasive truth that sells their permutations, the stuff of legend. error. miserable books. Fortunately Bill These keep the same persona Whilst many authorities are Hosking QC, former NSW Public but the variation – at ‘some other variously cited throughout Defender, and District Court judge, sentencing’ – that I like, has the book, propositions are is able to keep to the plain facts Hosking on his feet addressing supported by the most relevant in his ‘Justice Denied’, written while his dock bound client is authority only. This provides with the help of John Linton, and trying to catch his attention with, the reader with an ability to ‘categorised’ accurately by the ‘Fuck this’ and ‘Fuck that’. Hosking then quickly search for other publisher on the back cover as ‘true ignores him. His Honour, anxious to authorities on point. crime’. score a point, innocently says, ‘Mr Raymond Gibson has spent Here’s a book that entertains as it Hosking, your client is trying to get many years prosecuting all instructs with the details of crimes, your attention’. Equally innocently manner of crimes committed the background to those who Hosking replies, ‘ My apologies in all manner of circumstances. may or may not have committed Your Honour, I thought my client This book taps into his vast them, the personalities of Crowns, was addressing the Bench’. experience. It allows the reader defence advocates and trial judges, Hosking offers more than clients’ to gain not only an appreciation and the tensions that arose within stories and amusing side anecdotes. of the technical aspects of those ‘atmospherics’. So human, He brings alive the dilemmas faced prosecuting, but also the pitfalls always so human. by criminal trial advocates, at to be avoided. A thorough Hosking knows how to tell a both ends of the bar table, as they reading will ensure fewer story, a sine qua non of a successful thoughtfully consider plea options. mistakes. As Mark Tedeschi, AM, jury trial advocate. He also knows For example, how does one advise QC writes in the forward, “this how to understate it. Describing an accused charged with murder book fills a gaping void, a relationship with a once fellow that a plea to manslaughter is the so that no prosecutor will have barrister then judge before best option, better than testing any excuse for saying that whom he appeared he writes, the evidence at trial, losing and there was no guidance in the ‘Our professional relationship, receiving a very long sentence for professional literature”. for want of a better word, faded’. murder. How does an experienced I agree. I’ve been told that they loathed prosecutor tell the deceased’s each other, but the anecdote he

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He combines astute observation with empathy. because she was robbed, bashed, raped, tortured and had her throat family that to accept a plea to with a ‘common law’ tradition: the cut. It was Hosking’s last case before manslaughter is a better outcome State does not share its witness he became a judge. than going to a trial for murder and statements with the Defence He discusses some ‘terrorism’ losing? Hosking says that it was pre-trial. offences, a discussion that usefully the most difficult task he faced as Alas there are always noisy, reminds everyone that there is a defence barrister, one that never influential people who are selfishly nothing new, not in the deluded got easier. For him that was more motivated to press the ‘fear and conduct of the actors, the panic than 30 years ago. It’s still an issue, panic’ button to, ‘lock them up alarmists (we’ll all be murdered in the more so when the deceased is and throw away the key, or at least our beds), the imperfections small a police officer. Section 19B, NSW store it for a good many years’. and large in the police response, Crimes Act, prescribes imprisonment Not for them any thought as to the and the media opportunists. He for life for the murder of a police realities of imprisonment such as sets out first, among several officer while that officer was doing loss of self respect, violence, wasted examples, the fateful history of his duty. The gamble (because that lives, destroyed families. Hosking Tim Anderson and his colleagues is what it is) is to plead not guilty describes prison conditions as (all Sydney members of the and face ‘life’ if one loses, or plead they were and are. He combines Ananda Marga), who were falsely guilty to manslaughter and get a astute observation with empathy. accused, convicted, served about long, but ‘manageable’ term. This He doesn’t talk though of today’s seven years, and were released is so whether they did or did not remand prisons where numbers are only after an inquiry found that do the deed. high and services low, and where Seary, the main witness for the As Hosking explains, ‘To proceed those awaiting trial can languish Crown, ‘had lied on at least fifty to trial is not a question of counsel’s for a year and more. Bad luck if occasions’. For Anderson it was not courage…If … [a] mistake is made, you’re innocent or found ‘not guilty’. over as four years later (1989) he counsel does not serve any time in Perhaps those politicians and was charged with the 1978 Hilton gaol…that is the sad lot of the client’. shock jocks who advocate less bail, Bombing in which three people This was a point made to a young longer sentences, inadequate legal died. Those charges arose from Hosking by the then elderly, famous aid funding, too few judges to hear information given by a prison Tony Bellanto QC, ‘Be very careful, cases, and more powers to police snitch and another Ananda Marga son….remember, we lawyers never might spend a night or two in one member who was later labelled as serve a day’. of our nastier, overcrowded prison ‘unreliable’. Anderson was found These days it’s an axiom of establishments and like those CEO’s guilty as an accessory before the Australian criminal practice that, who live ‘rough for a night’ gain fact. That verdict was overturned barring argued claims of public some useful insights. What a silly on appeal and a verdict of interest immunity and statutory thought: in these days of ‘fake news’ acquittal entered. ‘confidential claims’ (as in some is ‘good news’ there is no incentive One can read this book looking sexual cases) the prosecution will to change. for legal history, for insights into disclose its hand, the entire hand Hosking doesn’t spell it out but notorious criminals and police it holds. How quickly do we forget it takes a special character to be culture, for confirmation that judges even the recent past. Maddison v able to run a trial well for people are human, to err is human, and Goldrick ( The NSW AG versus a who, guilty or not, have the public that therefore judges err. So do competent Magistrate) is a seminal strongly against them. All murders advocates. There, but for good luck, case on that road to openness, are horrible but some are more go any and all of us: the Crown case decided in the mid 1970’s, when the horrible than others. Hosking was that the accused had shot her police decided that the ‘usual’ call describes the fateful cases of Veen husband, that he could not have by a defence counsel – in this case and Mallard (the latter is NOT the shot himself in the back of the head. Bill Hosking – to see and read the more recent West Australian case) During his final address to the jury police brief at a committal hearing in which these men murdered, the experienced Crown Prosecutor was to be thwarted. In round three, served time, were released, and then decided to show the jury that the in the Court of Appeal, the police murdered again. He also sets out, in dead husband could not have killed lost. The High Court saw no reason a long and fascinating narrative, his himself. He picked up the gun. He to hear an appeal from that decision. role defending one of the accused in positioned it. Everyone in the court Though we now take such openness the Anita Cobby murder: remember room saw at the same moment for granted it is still not the case it? Ms Cobby, a nurse, walked that the deceased could have in some places outside Australia homewards. She never arrived killed himself.

86 VBN VBN 87 of the Memo Music Hall, the band played songs from the album into early evening to a full house, which boilerplate included friends and family and many of Cassie’s colleagues from the Bar. The songs, like the catchy single “Save Me”, describe clearly and lyrically the liberation and angst of all of our intimate relationships. Cassie wrote the words to the songs, and she and Jeremy wrote the music. The layers of Cassie’s acoustic guitar and Jeremy’s violin in each song give HIVE Park’s music a distinctive sound. Apple Music labels HIVE Park’s musical style under the HIVE Park - launch banner “alternative”, while Triple J has used more varied hash tags to describe it: #rock # pop #folk of the debut album #indie #guitar #violin. Cassie herself admits that a definition of the band’s musical style may be hard to pin VBN down, adding that the influences on HIVE Park’s sound include jazz and t Kilda’s Memo Musical Hall, vocals, while Illias Tsinanis plays the classical music, and reflect the varied S a venue which has this year bass and electric guitar. Cassie, Jeremy interests and backgrounds of each hosted Clare Bowditch and and Illias formed HIVE Park in 2011 band member. Tex Perkins, enjoyed what was said and its debut album ‘things we should CD and vinyl copies of HIVE Park’s to be its biggest pre-sale of tickets have said…’ was recorded two years debut album may be purchased in recent history for the launch on later. As Cassie explained to those directly from Cassie, and digital Sunday, 4 June, of the debut album of gathered at the album’s launch, the copies through iTunes, Spotify the band HIVE Park. launch would have happened much and iGoogle. HIVE Park’s lead vocalist and earlier had she not broken her right The Bar News congratulates HIVE acoustic guitarist is Cassie Serpell, a elbow in 2013, which ruled out guitar Park on the brilliant launch and looks member of the Bar. Jeremy Blackman playing for the next couple of years. forward to covering the release of its plays the violin and sings backing In the beautiful Art Deco space next album.

VERBATIM Honour, in the defendant’s list of Have you heard something interesting or amusing in court? witnesses, we provided the address there. Send in the transcript extract to [email protected] HIS HONOUR: I only smile because it’s the street in which I was raised. MR BRETT: Oh. Probably not in this particular block, Your Honour. MR BRETT: Level 2, 8 Treadwell Street, HIS HONOUR: Oh, no. It’s been Kim Maree Johnston V Kbi No.5 Pty Ltd, Niddrie. redeveloped but there we go. before His Honour Judge Saccardo HIS HONOUR: Treadwell Street, really? MR BRETT: There we go. on 23 May 2017. MR BRETT: It means nothing to me, Your HIS HONOUR: So I can give everyone Appearing: J Brett QC with E. Makowski, Honour, but – oh, “tread well”. directions as to how to get there today. for the Plaintiff; D. McWilliams HIS HONOUR: Treadwell. MR BRETT: Well, my learned friend has with J. Zhu for the Defendant. MR McWILLIAMS: The irony’s palpable, suggested we may need a view. Your Honour. HIS HONOUR: Now the address of the HIS HONOUR: It’s the No.49 or 59 tram, MR BRETT: Sorry, Your Honour. place at which the plaintiff worked? if you’re travelling by tram. Yes, all right? MR McWILLIAMS: It’s actually, Your

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