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Sorely Tried: Democracy and Trial by Jury in New South Wales

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Sorely Tried: Democracy and Trial by Jury in New South Wales Sorely tried Democracy and trial by jury in New South Wales By Ian Barker QC Barker, Ian, 1935‐ . Sorely tried : democracy and trial by jury in New South Wales. Includes index. ISBN 0 9751103 0 6. 1. Jury ‐ New South Wales ‐ History ‐ 1788‐1851. I. Title. (Series : Francis Forbes Lectures ‐ 2002). 347.9440752 3 | Foreword Ian Barker QC’s paper on the history of trial by jury in New South Wales, here published in revised form, was presented in the Banco Court of the Supreme Court of New South Wales on 28 November 2002 as the inaugural Francis Forbes Lecture. That lecture, and the Francis Forbes Society for Australian Legal History that sponsored it, were named for Sir Francis Forbes. Forbes, knighted upon his retirement, was the first chief justice of the Supreme Court of New South Wales, between 1824 and 1837. At a ceremonial sitting of the court held on 17 May 1999 to mark the 175th anniversary of its first sitting in 1824, the Premier of New South Wales described Forbes as Australia’s first democrat.1 He has a substantial claim on all Australians as a founder of the rule of law in this country. The principal biography of the great man remains Dr CH Currey’s Sir Francis Forbes; the first chief justice of the Supreme Court of New South Wales2 (out of print but readily obtainable). However, through the indefatigable work of Dr JM Bennett, we now also have Some papers of Sir Francis Forbes and, as one of the first volumes in Dr Bennett’s Lives of the Australian chief justices series, Sir Francis Forbes. The latter work provides a short, learned account of a great lawyer. Devotees of Australian legal 4 | history continue to owe a large debt to Dr Bennett for the range, quality and thoroughness of his scholarship.3 In his Portraits of the chief justices of New South Wales: 1824 ‐ 1977 Dr Bennett said of Forbes: New South Wales was fortunate in the selection of Francis Forbes as its first Chief Justice. Not only was he a sound lawyer and a good judge, but he was also a man of strong and upright character, tempered by a conciliatory manner. Without such qualities no‐one could long have presided over the administration of justice in the difficult formative years through which the Colony was then passing. … He was often charged with having republican sympathies, but his judicial conduct belied that. Rather, as Sir Alfred Stephen [the third Chief Justice of New South Wales] said, he was ‘as a liberal, in advance of the age’. That showed in his judgments – many of which established perpetual precedents for the Colony – and in his efforts to make the law accessible to colonial society as he found it. Disliking form and ceremony he dispensed with much cumbersome English procedure and, by innovations, speeded the administration of justice. He tried to hasten the introduction of trial by jury on the English model, but with only limited success. Concerned to keep the course of the law untainted by political or partisan interests he set too much store upon his own immunity 5 | from them, and would allow himself no extended recreation lest forces adverse to his standards became established in his absence. So he literally worked himself to death. … Although recognized by the honour of a knighthood in 1837, Forbes’ prodigious and ill‐rewarded labours were too much taken for granted. Posterity now accords to him that recognition he would so richly have merited in his own day.4 In the days preceding the inaugural Francis Forbes Lecture, as on the day itself, the Banco Court rang with praise for Sir Francis. With the Supreme Court’s official portrait of the Judge overseeing proceedings, on 25 July 2002 a distinguished Canadian lawyer, Professor John McLaren, delivered the inaugural Macquarie Lecture entitled, ‘“The judicial office…bowing to no other power but the supremacy of the law”: Judges and the rule of Law in colonial Australia and Canada, 1788‐ 1840’, Forbes’ successor, Chief Justice JJ Spigelman, introduced Professor McLaren’s lecture and himself returned to the theme of Sir Francis when, on 20 November 2002, he delivered in the Banco Court the inaugural Australian Press Council Address, ‘Foundations of the freedom of the press in Australia’. 5 The Forbes Society was honoured, therefore, when Chief Justice Spigelman introduced Ian Barker as its 6 | inaugural lecturer. We were also honoured by the presence of a descendant of Sir Francis Forbes, and a warm letter of support from Alistair Lockhart, the Mayor of Forbes Shire Council, a country region of New South Wales named for Chief Justice Forbes. Ian Barker is a leading member of the Australian Bar. Admitted to practise as a solicitor in New South Wales on 11 March 1960, he practised as a barrister and solicitor in the Northern Territory between 1961 and 1980. On 7 August 1974 he was appointed Queen’s Counsel for the Territory and in January 1975 joined the fledgling independent Bar of the Northern Territory (then consisting of Michael Maurice and Tom Pauling6). On 1 July 1978 he became the Territory’s first solicitor‐ general, an office he held for two years. In May 1980 he was admitted to practise as a barrister of the Supreme Court of New South Wales and duly appointed Queen’s Counsel. Although he moved to Sydney late in 1980 he maintained his connection with the Territory. He was a founding member of the Northern Territory Bar Association in June 1980. His career in the Territory is part of the story told by Justice Dean Mildren in A short history of the Bar in the Northern Territory. 7 Elected to the Council of The New South Wales Bar Association in 1984, Ian served on the Bar Council for several terms (1984‐1985, 1985‐1986, 1986‐1987, 1993‐ 1994, 1994‐1995, 1995‐1996, 1997‐1998 and 1998‐1999), culminating with service as president of the Bar Association (1997‐1999). 7 | There would be few legal practitioners with the breadth of practice, combined with high responsibility, that characterises the career of Ian Barker. During his career in the Northern Territory he appeared in a wide range of matters, including homicide trials, personal injury and commercial cases, mining and liquor licensing cases, and appearances as diverse as work in the Coroner’s Court and in the High Court of Australia. He was leading counsel in R v Anunga,8 and he and Tom Pauling drafted the ‘Anunga Rules’ for interrogating Aboriginal witnesses with the benefit of an interpreter and a ‘prisoner’s friend’. As solicitor‐general he was responsible for negotiations with the Commonwealth about the terms of self‐government for the Northern Territory, establishing and running the Territory’s Department of Law and appearing in Aboriginal land claims. He appeared as prosecuting counsel in a number of conspiracy and murder trials, and he represented the Northern Territory Government in Jakarta as an observer in negotiations between Australia and Indonesia about the maritime boundary between the Territory and East Timor. After his move to Sydney in 1980 he continued to appear in a diversity of jurisdictions. He has appeared in a number of notable cases, such as the prosecution of the Chamberlains, the Anderson murder appeal, the defence of Lionel Murphy at his second trial, the Lanfranchi inquest, the Waterhouse family feud and Marsden v Amalgamated Television Services Pty Ltd. 9 8 | With all the best hallmarks of a common law silk – including a reputation as a cross‐examiner – Ian’s measured laconic style suggests that he also has something of an equity practitioner in him. For many readers, the quiet ironic understatements scattered throughout his paper will leap from the page. At those points he is at his most persuasive. He appeals to common experience in an uncommon way. However, what might be thought to disqualify him as an equity practitioner is his very real passion for trial by jury, not the stuff of affidavits and interrogatories. Even when describing, rather than analysing, the history of trial by jury in New South Wales Barker QC offers insights that his experience and standing in the legal profession render unique. He is a witness to the law in action. His strong, but measured, support for trial by jury cannot be dismissed as polemic. He is a trial lawyer equally at ease in civil, as in criminal, trials. He is an advocate accustomed to appear for prosecution or defence with equal professional commitment. He is a lawyer experienced in acting for and against governments, individuals and vested interests of all descriptions. Not much in legal practice has escaped his attention. In scholarly essays recently edited by Professor John W Cairns and Grant McLeod,10 attention is drawn to a need to address the history of civil, no less than criminal, juries. After surveying international literature on juries, the editors make two observations that place Barker QC’s paper in context and render its publication 9 | timely. First, they note that, although it is an institution absolutely central to the common law, there has been surprisingly little work on the civil jury in comparison with the level of interest displayed in criminal juries.11 Second, they note that, although the parameters of what we today recognise as the common law were largely set in the nineteenth century, insufficient attention has been given to that century by legal historians.12 On each of these accounts Barker QC meets the challenge. His call for community participation in the administration of justice addresses civil and criminal jurisdictions with equal concern.
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