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Who's That with Abrahams barTHE JOURNAL OF THE NSWnews BAR ASSOCIATION | SUMMER 2008/09 Who’s that with Abrahams KC? Rediscovering Rhetoric Justice Richard O’Connor rediscovered Bullfry in Shanghai | CONTENTS | 2 President’s column 6 Editor’s note 7 Letters to the editor 8 Opinion Access to court information The costs circus 12 Recent developments 24 Features 75 Legal history The Hon Justice Foster The criminal jurisdiction of the Federal The Kyeema air disaster The Hon Justice Macfarlan Court NSW Law Almanacs online The Court of Bosnia and Herzegovina The Hon Justice Ward Saving St James Church 40 Addresses His Honour Judge Michael King SC Justice Richard Edward O’Connor Rediscovering Rhetoric 104 Personalia The current state of the profession His Honour Judge Storkey VC 106 Obituaries Refl ections on the Federal Court 90 Crossword by Rapunzel Matthew Bracks 55 Practice 91 Retirements 107 Book reviews The Keble Advocacy Course 95 Appointments 113 Muse Before the duty judge in Equity Chief Justice French Calderbank offers The Hon Justice Nye Perram Bullfry in Shanghai Appearing in the Commercial List The Hon Justice Jagot 115 Bar sports barTHE JOURNAL OF THE NSWnews BAR ASSOCIATION | SUMMER 2008-09 Bar News Editorial Committee Cover the New South Wales Bar Andrew Bell SC (editor) Leonard Abrahams KC and Clark Gable. Association. Keith Chapple SC Photo: Courtesy of Anthony Abrahams. Contributions are welcome and Gregory Nell SC should be addressed to the editor, Design and production Arthur Moses SC Andrew Bell SC Jeremy Stoljar SC Weavers Design Group Eleventh Floor Chris O’Donnell www.weavers.com.au Wentworth Chambers Duncan Graham Carol Webster Advertising 180 Phillip Street, Richard Beasley To advertise in Bar News visit Sydney 2000. David Ash www.weavers.com.au/barnews DX 377 Sydney Louise Clegg or contact John Weaver at Julie Soars Weavers Design Group (c) 2008 New South Wales Bar Association Kylie Day This work is copyright. Apart from any use as permitted at [email protected] or under the Copyright Act 1968, and subsequent Jenny Chambers phone (02) 9299 4444 amendments, no part may be reproduced, stored Geoff Hull (clerk) in a retrieval system or transmitted by any means ISSN 0817-0002 or process without the specifi c written permission Bar Association staff member Views expressed by contributors to from the copyright owner. Requests and inquiries concerningBar reproduction News | Summerand rights 2008/2009 should be | 1 Chris Winslow Bar News are not necessarily those of addressed to the editor, Bar News, c/- The New South Wales Bar Association, Basement, Selborne Chambers, 174 Phillip Street Sydney, NSW 2000. | PRESIDENT’S COLUMN | What price security? What price security? In February 2008 the New South Wales Government opened a new ten- court facility in Parramatta to be known as The Sydney West Trial Court Complex. The new courts provide for glassed-in rooms, to be used as docks. With the exception of the largest court in the complex, currently being used for the trial of multiple accused on terrorist offences, each has two docks on the side of the courtroom. One is a conventional dock; the other is a secure, glassed-in room behind the conventional dock. The government describes this arrangement as a fl exible dock. The purpose, we are told, is to give the judge the option of housing the accused in a secure facility if he or she poses a security risk. Such a risk may arise during the course of a trial or before it commences. In August this year, before a trial in the largest courtroom in the complex commenced, a successful application was made to have the fi xed glass screen removed. That application raised issues that arguably affect the so-called fl exible docks as well and give rise to concerns about the extent to which fundamental human rights are compromised for the sake of expediency. Both would appear to interfere with the ability of a lawyer to take instructions and provide advice in confi dence and both create an impression of danger. Neither permits face to face communication, As the editor has written, there is no doubt that all of us will be affected for example, and anything the lawyer says can be heard by all accused by the global fi nancial crisis. For some, this will mean an increase in who might be in the dock at the time. While the use of a glass cubicle work – with a rise in insolvencies, for example. For some it will come is not too much of a problem in a magistrate’s court or in a court where on top of a steady downturn in work brought about by sequential guilt is being assessed by a judge alone, it is a potential risk in any jury legislative changes over the last decade, a decline in litigation and trial. Moreover, the presence of two docks in a courtroom – one closed, a surge in alternative forms of dispute resolution in which solicitors the other open – only serves to emphasise the prejudice to the trial of and non-lawyers have taken part in many cases without recourse to the accused consigned to the closed dock. It is one thing if the reason the bar. This is, however, no time to despair. These sort of changes for the confi nement was obvious to a jury, such as where there had occurred throughout the 20th century. When I fi rst came to the bar been a violent outburst in the courtroom, but another if the jury is left tenancy work, which had sustained many barristers’ practices, was on to speculate about the reason why the conventional open dock has the decline and many despaired. Before I arrived, when no-fault divorce been left vacant. Such prejudice is unlikely to be curable by a direction was to be introduced, many thought this was the end of civilisation from the judge; indeed, a direction could actually enhance it. as they knew it. In each case the bar did not just survive; it thrived. New legislation brought with it new challenges, new causes of action An English study of docks published over 40 years ago reported that and new conundrums for barristers to help solve. Although many of us simply having a dock undermines the presumption of innocence.3 And were slow to take to the new forms of dispute resolution, particularly in the US there have been a number of cases where the issue has arisen. mediation, the bar has now embraced it and many barristers have In one, Walker v Butterworth, 599 F.2d 1074, 1080 (1st Cir.1979) the US become talented mediators. Most of us recognise the value of mediation Court of Appeals for the First Circuit said that: for many cases and use our advocacy skills, albeit that they may need The practice of isolating the accused in a four foot high box very to be modifi ed, to excellent effect during mediations. The institution well may affect a juror’s objectivity. Confi nement in a prisoner dock of the bar is solid. The barrister’s talent for persuasion is much sought focuses attention on the accused and may create the impression after and not just in the traditional areas of practice. Change brings that he is somehow different or dangerous. By treating the accused with it new opportunities. If there is a reduction in paid work, use the in this distinctive manner, a juror may be infl uenced throughout time to give back. Do some pro bono work. Put your name forward to the trial. The impression created may well erode the presumption of do legal aid work. Offer your services as a lecturer or to a worthy cause. innocence that every person is to enjoy. That may have a spin-off effect, too. It may introduce you to new areas of the law and new sources of work. It may broaden your mind. We In another, Young v Callahan, 700 F.2d 32 (1st Cir. 1983), the same court should embrace the future, not fear it. As Lionel Murphy said of those described the use of a dock as ‘a form of incarceration’ and inconsistent who believed their professional lives were fi nished when the Family Law with the presumption of innocence. It held that, absent security Act was introduced: ‘The bar is like life – one door closes and another considerations, it was a violation of the accused’s 14th Amendment opens.’ But as Neville Wran added, ‘like Lionel Murphy, you always rights to place him in a dock. The court endorsed a submission from the 1 have to remember to turn the knob’. accused’s counsel in the following terms: While the use of a glass cubicle is not too much of a problem in a magistrate’s court or in a court where guilt is being assessed by a judge alone, it is a potential risk in any jury trial. 2 | Bar News | Summer 2008/2009 | | PRESIDENT’S COLUMN | Any suggestion that [appellant] was a dangerous person, implanted Article 9(3) of the International Covenant on Civil and Political Rights in the minds of the jurors through observation of [appellant] provides that ‘it shall not be the general rule that persons awaiting confi ned in the dock day after day, may have tipped the scales of trial shall be detained in custody’ although release may be subject justice.... [A]ny implication that [appellant] was the type of person to guarantees to appear for trial and, should the occasion arise, for whom it was necessary to segregate from jurors, spectators, court execution of the judgment. Article 14(2) provides that ‘everyone charged personnel, and even his own counsel ..
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