QC to KC Whoops!
and elsewhere
History of the Bar History of What happens to silks to What happens Vignettes from our from Vignettes on the Queen’s demise? on the Queen’s in unexpected directions in unexpected
When video conferencing goes video conferencing When Chamberlain , Pell
Normal
COVID Juries: lessons from from Juries: lessons
Plus:
ISSUE 168 SUMMER 2020/21 SUMMER 168 ISSUE VICTORIAN
NEWS BAR BAR Stories More Lockdown 168
168 VICTORIAN BAR NEWS SUMMER 2020/21 ISSUE 168 SUMMER 2020/21 VICTORIAN editorial Editorial A rich tapestry of content 5 55 The Future THE EDITORS BAR PETER MATTHEWS Letters to the Editor 6 56 The Victorian Commercial Bar Council election 7 NEWS Arbitration Scheme NATALIE HICKEY KIERAN HICKIE Around Home 57 The Open Justice Project: The When video conferencing 8 Monash University and Victorian goes in unexpected directions Bar Pro Bono Program MATTHEW PECKHAM AND LAURA HILLY, TIM FARHALL MELISSA MARCUS AND WILLEM DRENT Who wore it best? Lockdown Locks 10 58 Mediating in the time of COVID-19 during Stage 4 restrictions and beyond NATALIE HICKEY TONY ELDER, ADR COMMITTEE CHAIR & Hotel Quarantine in 11 GLEN PAULINE, ADR COMMITTEE MEMBER the Interests of Justice 36 ASTRID HABAN-BEER 60 In the matter of Her Majesty’s Excerpts from a Bar diary 12 Counsel in the plague year part 2 SHP STEWARD AND EA GISONDA CAMPBELL THOMSON 68 Commemorating William Ah Ket: A Readers digest part 2 16 A Life of Diversity and Service TEMPLE SAVILLE, HADI MAZLOUM ANDREW GODWIN Get your finance sorted by the legal specialists. AND VERONICA HOLT 70 The Alfred Deakin bust Locked out 23 by Stephen Benwell OREN BIGOS QC CAMPBELL THOMSON AND SIOBHAN RYAN One of our own 24 Legal Home Loans is the only mortgage and finance broking firm in Australia that specialises in finance for 72 Congo Tales by Pieter Henket: JULIAN MCMAHON legal professionals. PHOTO2021 at the Peter News and Views O’Callaghan QC Gallery As an elite barrister your financing needs are bespoke, complex in nature, and differ to that of the average An Interview with Elliot Perlman 26 SIOBHAN RYAN lawyer. We can coordinate tailored finance solutions for your next investment property, refinance your 60 JUSTIN WHEELAHAN AND Bar Lore existing home loan, and help implement working capital facilities for your practice. CARMELLA BEN-SIMON 76 Sir Archibald Michie QC: Legal Home Loans is your conduit and will navigate the lending landscape on your behalf, saving you valuable R v Chamberlain: a retrospective 29 Victoria’s first Queen’s Counsel ANDREW KIRKHAM time, money and stress. DANIEL AGHION Pell v The Queen 36 78 The History of the Victorian Bar: GAVIN SILBERT Characters & Vignettes What will courtroom justice 39 SIOBHAN RYAN look like in the future? 85 A Perry Christmas carol JACQUI HORAN MAX PERRY An interview with Louise Milligan 42 JUSTIN WHEELAHAN AND TEMPLE SAVILLE Back of the Lift HOME LOANS INVESTMENT LOANS WORKING CAPITAL OVERDRAFT FACILITIES Rethinking culture in 44 86 Silence all stand the legal profession 72 90 Vale KYLIE WESTON-SCHEUBER 96 2020 New Silks Q&A Barristers are not immune 46 Boilerplate from personal cost orders 102 A bit about words Contact us today HEATHER HIBBERD JULIAN BURNSIDE Decriminalising sex work 48 104 Language Matters (02) 9030 0420 in Victoria PETER GRAY FELICITY GERRY, SUZAN GENCAY 106 Book reviews [email protected] AND SIMONE CURMI-BLACKWELL 110 Comfort Food TV during lockdown, How I saved America and 52 www.legalhomeloans.com.au for inspiration over summer possibly the world (part II) NATALIE HICKEY ANONYMOUS S.C. 78 VBN 3 ISSUE 167 WINTER 2020 VICTORIAN Editorial Building mental fitness... BAR Together NEWS A rich tapestry of content
Editors: Natalie Hickey, Justin Wheelahan, NATALIE HICKEY, JUSTIN WHEELAHAN, ANNETTE CHARAK Manager Annette Charak Free Assist Victorian Bar News Editorial Committee: Natalie Career Hickey, Justin Wheelahan, Annette Charak, Carmella e hoped the June issue of Bar News would be a one-off Member Ben-Simon, Campbell Thomson, John Tesarsch, Tony Assist Horan, Maree Norton, Temple Saville, Brad Barr, Jesse collectors’ item documenting life under lockdown. But after Assist Rudd, Hadi Mazloum, Veronica Holt, Shanta Martin, short-lived freedom, we found ourselves confined to home Confidential Denise Bennett, Amanda Utt. Member again. This spurred an explosion of creativity from barristers. Contributors (in alphabetical order): Daniel Assistance You contributed prose, satire and poetry—making this a bumper issue. Thank Available for up to Family Aghion, Melanie Albarella, Todd Allen, Heather Program Conflict Anderson, Carmella Ben-Simon, Oren Bigos QC, you! With such a rich tapestry of content, we have loosely grouped these Judicial Registrar Sharon Burchell, Julian Burnside AO 5 sessions per issue eclectic contributions into broad themes. Assist Assist QC, Gemma Cafarella, Fiona Cameron, Chris Carr W SC, Peter Chadwick QC, Mia Clarebrough, Georgina There are more stories of lockdown. Humour has been an important Nutrition Coghlan SC, Simone Curmi-Blackwell, Dominic weapon against stress, anxiety, and cabin fever. When the year started, who Money Delany, Ella Delany, Marcel Delany, Willem Drent, & Lifestyle Tony Elder, Tim Farhall, Don Farrands SC, Peter Fary would have thought our year-end issue would feature stories about unwanted Assist SC, Suzan Gencay, Angelo Germano, Felicity Gerry surprises during online hearings and presentations, the effect of no haircuts, Assist QC, Ross H Gillies QC, Eddy Gisonda, Dr Andrew Find out more or book an appointment: Godwin, Sandro Goubran SC, Justin Graham SC, and life in hotel quarantine? the Hon Peter Gray AM, Astrid Haban-Beer, David There are also more serious reflections on the justice system. Andrew Hallowes SC, Lisa Hannon SC, Ian Hardingham QC, Kirkham QC has provided an insider’s retrospective on Chamberlain, and • 1300 our eap (1300 687 327) Matthew Harvey QC, Lisa Hespe, Heather Hibberd, Natalie Hickey, Kieran Hickie, Harry Hill-Smith, Gavin Silbert QC has furnished us with his analysis of the Pell decision. Elliot • [email protected] Laura Hilly, Veronica Holt, Jacqui Horan, Ben Ihle Perlman had first-hand experience as a juror when a student. He was shocked SC, Julianne Jaques SC, Paul Jeffreys, Tanya Kamil, • www.convergeinternational.com.au Andrew Kirkham AM RFD QC, Nick Kotzman, at the disconnection between theory and reality, before he turned his hand to Angus Macaskill, Rhiannon Malone, Alexander writing fiction. Associate Professor Jacqui Horan rounds out the discussion Marcou, Melissa Marcus, Fiona Martin, Amel Masinovic, Peter Matthews, Hadi Mazloum, Daniel with a view on what courtroom justice might look like in future. McInerney SC, Julian McMahon AC SC, Matthew Contemplation about court craft is inevitable given changes to work Meng, Tessa Meyrick, His Honour Judge Damian practices in 2020. COVID was the catalyst for a centrifugal shift from in- Murphy, Julian Murphy, Frank O’Loughlin QC, Glen Pauline, Matthew Peckham, Max Perry, Alistair person hearings to online advocacy from home. On this front, Kylie Weston- Pound SC, Tim Puckey SC, David Ravech, Elizabeth Scheuber tackles the theme of the COVID workplace and gender from the Ravech, Thomas Ravech, Liz Ruddle SC, Siobhan Ryan, Temple Saville, Ruth Shann, Gavin Silbert QC, angle of bullying and harassment, while Louise Milligan provides an insight Geoffrey Steward, The Hon Justice Simon Steward, into what we look like as a profession from the witness box. Sam Tatarka, Simon P Thomas, Campbell Thomson, To mark the appointment to the High Court of one of our own, we have Megan Tittensor SC, Tim Tobin SC, Paul Vout SC, Peter Wallis SC, Kylie Weston-Scheuber, Justin published an opinion of (the then) Simon Steward QC and Eddy Gisonda Wheelahan, Patrick Wheelahan SC, Raini Zambelli. answering that question you always wanted to know the answer to but were Photography/Images: By V. Tay, David McArthur too afraid to ask: what happens to QCs when the Queen dies? We also profile for Niagara Galleries. Pieter Henket, Big Stock ID 109625918-Alexandre17, NLA, BFA/Alamy Stock another of our own at the outset of her career, Daye Gang, who took out this Photo. Comedy Central / The Hollywood Archive year’s IBA young lawyer of the year award for her work on North Korea. Publisher: Victorian Bar Inc., Level 5, Owen Dixon Chambers East, 205 William Street Melbourne We celebrate the vast array of talent amongst our members, past and VIC 3000 Registration No. A 0034304 S present, with a piece about The History of the Victorian Bar project starting The publication of Victorian Bar News may be from our Bar’s origins in the 1830s, profiles of early members, contributions cited as (2020) 168 B.N. Opinions expressed are not necessarily those from our September readers and a new cohort of silks, and tributes in the of the Bar Council or the Victorian Bar or of any Back of the Lift section. person other than the author. We address current developments around perennial issues of interest to Advertising All enquiries including requests for advertising the profession: greater access to justice, legislative change, mediation and rates to be sent to: arbitration, cost orders and forensic evidence. Elizabeth Gray. Victorian Bar Inc. Our sincere thanks to the VBN committee, contributors, Bar Office, and Guy Level 5, Owen Dixon Chambers East Shield who, once again, has done a fantastic job making our magazine look 205 William Street Melbourne VIC 3000 good. Guy drew on his own family mayhem to illustrate our June issue cover. Tel: (03) 9225 7111 If Guy’s December cover is anything to go by, there is cause for optimism Email: [email protected] in 2021. If one thing has been learnt this year, it is that whatever next year Illustrations, design and production: throws at us, the Victorian Bar will confront it with resilience, flexibility and Guy Shield - www.guyshield.com good humour. Printed by Southern Colour www.southerncolour.com.au Please tell us your thoughts, your ideas, submit stories, give us photos, and Contributions: Victorian Bar News welcomes we will do our best to publish them. Contact us at [email protected]. contributions to [email protected] The Editors
VBN 5 TO Have your Say Victorian Bar News encourages letters to the Editors on topics ranging from Letters THE the meaningful to the mundane. Write to the Editors at Victorian Bar News, Owen Dixon Editors Chambers, 222 William Street, Melbourne, VIC 3000 or email [email protected] editorial editorial Our defining image of 2020? Courage and BAR As Joel Silver observed, caring “Who’d have thought a COUNCIL photo of a barrister in I am often puzzled by the perceived pyjama pants would be need to engage in metaphorical ELECTION the defining image of judicial genuflecting, whether it be our Bar in 2020? This in or out of court. belongs in Bar News”. I recall an occasion when I was Reaction to Lionel’s being led by the peerless Colin Lovitt 2020 attire, which he posted QC in a Supreme Court trial. The trial during lockdown, judge ‘cracked’ what on any reading NATALIE HICKEY was overwhelmingly of it was a lame joke. As counsel and positive. Comments their instructors feigned an amused included, “I should have reaction, chortling as they did so, he process leading noticed the Smurfs. Lovitt looked up to the judge and up to the Bar Brilliant, just brilliant”. said, “That’s not funny.” Bless him. Council election this One opponent wrote, The ramifications of COVID-19 year was conducted “Shall remember this have been complex. Understanding primarily during pose when you and I and compassion in circles in which lockdown. Each are crossing swords!”. neither were expected has been Friday, many members became Another commented, gratefully received. Conversely, in accustomed to receiving emails “Love it … a great some circles in which one could debating a range of issues. reminder not to take reasonably expect such empathy, it By November 2020, a group of Paul Holdenson QC ourselves too seriously has been lacking. existing and aspiring members of set out their case, as did other T Christopher Blanden QC (President) and to laugh … great Most judicial officers have Bar Council had coalesced around candidates, by email and other Simon Marks QC* to de-stress”. Thanks been very cognisant of the a ‘Vote for Change’ ticket. The level means. The candidate bios circulated Dr Ian Freckelton QC Lionel! devastating effects of COVID-19. of co-ordination by a group ticket by associations also took on a photo reproduced with permission reproduced photo Ms Mary Anne Hartley QC (Honorary They have done all in their power contrasted to typical electioneering stronger tone than in previous years. Treasurer) to help militate the emotional, by individual barristers for the A number of candidates took their Dr Suzanne (Sue) McNicol AM QC psychological and financial Council’s 21 board seats. case to social media. One candidate Ms Róisín Annesley QC (Senior Vice ‘bleeding’ of those so deleteriously In the end, there was a record field promoted his candidacy on LinkedIn Puss President) affected by its ravages. of more than 60 candidates, no mean by way of a cartoon, an admirable Ms Helen Rofe QC (Junior Vice Others have not demonstrated feat given that almost everyone was first! on President) such care. On one occasion, working from home. The election The profound impact of the Mr Paul Hayes QC innocuous and harmless humour also attracted a high voter turnout. coronavirus pandemic and lockdown mute Mr Eugene Wheelahan QC was dealt with in a heavy-handed Approximately 70 per cent of those on the practices of many barristers, Here is a little snap Mr Darryl Burnett manner. eligible to vote did so, suggesting was not far from the minds of most of Steph Hooper’s Mr Paul Kounnas Sadly, in order to keep the peace, strong engagement with the issues. candidates. kitten Frankie Mr Benjamin Murphy the organisation that published that Before 2020, campaigning appears It remains to be seen whether this learning about Ms Robyn Sweet (Assist. Hon Treasurer) ditty was pressured into proffering to have been typically conducted on year was a ‘once off’. The debate voidable transactions Ms Amy Wood an apology that ought never have a sotto voce basis. This year therefore and vigour of the election process during our CPD on Mr Ben Jellis been forthcoming. deserves comment. Previously, may have been emblematic of the 26 August forming Ms Nawaar Hassan Far more happily, I had the good much of the lobbying took place exceptional circumstances of a part of the CommBar Mr Nicholas Phillpott fortune to happen upon a County behind closed doors. At its highest, pandemic. Or it may represent a Insolvency Seminar Mrs Roshena Campbell Court judge in the street last week. associations would circulate brief permanent shift to a more dynamic Series. Miss Lana Collaris I was more than surprised when he bios of members running for election. electioneering process. I was pleased to Mr Lachlan Molesworth said, “I’ve been thinking about you.” In these short profiles, candidates The Vote for Change ticket won learn I had at least I was struck by his humility and politely affirmed common ideals, in a all of the seats on Bar Council. After *Simon Marks QC resigned from the Bar one captive audience decency when he also said, “I feel bid to garner support. the election, office bearers were duly Council shortly after the election, leading to a member! casual vacancy to be filled by a by-election. guilty having a job.” In 2020, the approach was more appointed. Raini Zambelli Geoffrey Steward. overt. Members of Vote for Change
6 VBN VBN 7 around
AROUND Matthew Peckham Melissa Marcus was before Justice Mortimer in seem to me to be a—this may In the first lockdown I was asked We watched in horror as the Federal Court, appearing by or may not be something that by a former instructor to be a person X proceeded to dry off Microsoft Teams on behalf of the matters, but at one point in the I guest speaker at a defamation and tussle up his hair within the commonwealth minister for the joint submissions I think there’s talk conducted via Zoom. There confines of what appeared to environment, making submissions a submission that it would have were to be three presenters. be a walk-in wardrobe. for a substantial agreed civil cost the department $80,000... I was to speak last. There were Then, all Zoom participants penalty. It was all very serious. The
8 VBN VBN 9 around
Thomas Anderson I look Who wore it best? Lockdown locks forward to reading the ratio decidendi! You’d around during Stage 4 restrictions better draft it to be bangs on and not clip it short otherwise I’m Natalie Hickey bobbing upstairs to appeal to the full bench of Toni, Guy, Stefan JJ which will no doubt, create quite a buzz. elbourne’s Stage 4 coronavirus restrictions from August until Sorry for all the curly legal parlux. late October 2020 meant that hairdressers were closed for months. The ABC News suggested that, ‘Your next trim might Michael was approached for be a do-it-yourself job’. Some braved this concept; others did not. comment. He shared two pictures. MIn the latter part of this phase, when people were at their most hirsute, The first was early in lockdown Sydney-based Fairfax journalist Michaela Whitbourn weighed in on Twitter. when he was about to go into a Zoom conference. Michaela Whitbourn @MWhitbourn There is a Victorian barrister who is sporting a really lustrous mane of hair at the moment (think boy band-worthy) and it had not occurred to me until now that this is a coronavirus thing - but of course it is! No hair cuts!
The comment was about Matt Collins QC. Matt with his husband Leonard Vary
Matt also co-presented a CPD Lengthy indeed. The second was Matt Collins QC @ presentation on defamation law just before he got his hair cut. He drmattcollins reform for members of the Bar and describes himself as looking “like a Thanks for not going with their guests on 15 October 2020. mad man…as lockdown continues “ageing” boy-band Michaela...and yes, if and continues and continues”. (He Stage 4 in Melbourne doesn’t end soon took this one for fun to send to his my hair could get its own postcode... family.). He says that, fortunately, Hotel quarantine in the interests of justice Michaela Whitbourn since then he has had a haircut. You look freakishly ASTRID HABAN-BEER youthful, Matt. I feel the hair should stay. s 2020 criminal trials succumbed to pandemic-induced solicitor, run some pre-trial arguments, and I was determined People wondered if, Matt presenting the VicBar CPD adjournments, I settled into the other ‘to-do’ lists: to run this trial, if at all possible. ‘boy band-worthy’ meant advice work, preparation, committee and board work. Possible happened, and after much correspondence, On Michaela’s Twitter thread A he looked like ‘Fabio’. Sure, there were online court appearances, even contested ACT Health issued me with an essential worker border though, a new entrant appeared for matters, but the reality is that a jury trial has a permit. However, this meant a daunting two weeks Lucy Sunman the title of ‘longest lockdown locks.’ distinctive pace. Arguably, when there are jury trials of hotel quarantine. Or that’s his cover story running, the whole profession feels energised and As it turned out, hotel quarantine at the Thomas Anderson enlivened—even if one’s individual practice is Quest Canberra was a great environment in @iosonoilmatrix nowhere near a jury. The absence of jury trials which to do trial prep. I had a kitchen and a
affected the whole profession, not to mention balcony, so the small but important comforts Replying to @MWhitbourn the clients—especially those in custody, many of fresh air and cooking were available. I was If you’re not referring to Michael who felt that their value and significance as able to focus without the distractions of home Rivette then the baton for most humans slid down the scale of priority. In reality, procrastination although, sadly, I missed some illustrious mane south of the border As Michael concludes, ‘did Matt we were not all in this together. important life events at home. The things barristers might now have been passed! really stand a chance?!?!?’. The ACT Supreme Court began re-listing its give up for trials! So, what did Matt look like during Michaela Whitbourn No, he didn’t Michael. You win! adjourned jury trials in about May 2020. I held a brief in I definitely relied on my phone-a-friend panel for advice this period? Let’s check it out. I am not but maybe (And thanks for sharing something an attempted murder trial in Canberra, but had no faith in the from afar during the trial. Thanks to John Saunders, Liz Ruddle, I need to check out his to help us laugh. It was a pretty likelihood of being able to get there for the September 2020 Andrew Sim and Kylie Weston-Scheuber, all who were happy to locks before making a ruling. tough experience for most of us). listing. However, I had established a rapport with the client and listen and debrief about complex issues.
10 VBN VBN 11 around
for his father years ago. June 30 hours. July 00 hours. 00 hours. Line up Dad was dirt poor from 14Opposed to 10Partner 17three half-bottles Anatolia but became a 15 Boyce in 02 hears VCAT of wine sent from club around successful cabinet maker interlocutory appeal. Is planning case from desk at for online wine tasting. before stabbing a man for indictment bad for patent home. New VCAT hardware Sommelier welcomes 50 honour’s sake. The son’s & latent duplicity? Priest & software not performing. members on Zoom. Please a gun with computerised JA asks Boyce why they Threatens to resign. Try to raise hand for questions. carpentry machines. He should not grant the fix. No help at all. Techs in Like primary school. aims to take over. Dad appeal. All cues from the King St sort it. Swirl and sniff Domaine threatens to sell out after court indicate will get up. Laroche Saint Martin 15 hours. Drive to heated arguments. Son Afterwards, Boyce agrees Chablis 2015. Instantly in Garry Sommerfeld’s sees his life disappear, should succeed. 12 the Obediencerie cellars in lucky few. In late ‘90s we studio. Garry an old becomes morbidly Chablis leaning on barrel, worked for blackfella 00 hours. mate who’s NGV depressed. Goes to the June reaching for oysters. Rich legal aid in Darwin. As convener head of photography. factory, destroys machinery 13 saline & citrus flavours Normally Friday breakfast 17 of Famous 5 Photoshopping Julian with a forklift. Phones best flood palate. Next, the at Mario’s in Brunswick Minus 1, organise lunch Burnside portrait that Arts friend for help. Friend Boscarelli Vino Nobile St. Chris Howse used to at Di Stasio Citta. Committee commissioned. ridicules him. Goes de Montepulciano 2016. quote Henry V’s speech at Ronnie splits Three images of him in to friend’s place with Violet & anise perfumes Agincourt before we set restaurant in home study in one frame. knife. They argue. whisk us to a hill south off to Wadeye, Gunbalanya, two for social Works well, needs subtle Stabs friend to of Siena on Umbrian Maningrida, Yirrkala, distancing. We face adjustment. chest. Friend lucky border. Clonakilla Tiwi or Groote Eylandt. Treasury Gardens to survive. Son is 00 hours. O’Riada Shiraz 2017 The lists were long. Few or video behind bar 21, no priors, only he Zoom poetry group. with strawberries & pleaded guilty. Mandatory of Reko Rennie 20 can work the complex Normally gather roses drops us in paddock sentencing meant gaol for cruising back of Bourke equipment. Business will in someone’s house. outside Canberra. Proust’s the third theft of a Mars in camouflaged 70s Roller. fail if he’s inside much Plug Michael Farrell’s madeliene transported him Bar. So, “we few, we lucky Tehan & I use the table longer. These Oedipal new book, Family Trees. to his aunt’s bedroom in few…” sallied forth. Howse hand sanitiser. He crimes wouldn’t have He reads the whimsical Combray. Wine takes you to now runs the civil practice studies menu, I the happened but for Andre Gide and the Honey Europe despite the plague. at a community legal wine list. Boyce & acute depression. Gets long Sandwich & While my centre. Conidi is a Supreme Croucher arrive. Imagine 00 hours. Chambers stretch. Broken family. Verandah Gently Weeps. Court costing master, Boyce the absent Lachie Carter Zoom drinks. Our Lucky to have Corey 20 a senior crown prosecutor, 10 hours. in Blues jumper telling law student secretaries June Wakeling, who’s teaching while Batten & I battle Covid Themis, Goddess of Justice, arrange trivia night with 10 in Kobe, Japan & Toby Fitch away in County Court 13 numbers down. next High Court appointee Kaboom: tap one of four from Sydney, online. Toby trials. We still get a kick Daughter’s birthday. With must have criminal trial options on the App. No has taught at Sydney Uni out of the old war stories. old friends in Daylesford so experience. Linguini with hope with three AFL for years. They’re sacking Violin practice at Batten’s she can dine with mates. Truffles, Vitello Tonnato & questions but come from their casual lecturers. place. We raise our voices. Daylesford farmers’ market Parmesan crumbed Lamb behind with general Line Toby up for pro bono Boyce’s dog bounds up to chockas with tourists Cutlets with Chianti knowledge, e.g. advice with barrister who look out the window. Not ignoring social distancing. Classico. It will be five who composed does unfair dismissal work much to see these days but Hike round waterfall out of months before we can Rite of Spring? but not optimistic. good to chew the fat. town. Feels like special lunch again. Pipped at blackfella place but no post by reader CAMPBELL THOMSON June Melbourne Lockdown signs. Later cook duck dish July Melbourne Lockdown Timeline: Victorian Premier who’s quicker 5 Timeline: from Gascony for hosts Daniel Andrews announced a lockdown of metropolitan on buzzer. Good ike most of us, Campbell hoped that May Melbourne Lockdown Restaurants, bars with 2015 Santenay. After 6 Melbourne as the state recorded its largest daily increase plague fun. his Diary of a Plague Year would end Timeline: Takeout and cafes open with restrictions; dinner round fire dissect in COVID-19 cases since the start of the pandemic. This was ahead 15 hours. with its publication in VBN June 29 only; unrestricted unrestricted exercise permitted; our plays at the Pram etc. of the looming NSW-Victoria border closure. July Noah’s Ark 2020. Alas, it was not to be. He has exercise permitted; home home gatherings a maximum of Greg jokes about when we 19 13 Zoom board been a member of the Victorian Bar gatherings a maximum of 5; 10; shopping—essentials only were tied to a pillar in the Melbourne Lockdown Timeline: From midnight, back to July meeting. Major provider of for 28 years specialising in criminal shopping—essentials only (Lasts for 18 days) Melbourne Uni takeout only; unrestricted exercise permitted but people services to disabled law, native title and environmental law. For the second (Lasts for 19 days) underground car park as 9 unable to leave or enter restricted areas of Metropolitan 30 hours. WebEx children with $20 million half of the year, Campbell drew on his reserves, and his Prometheus in King’s Melbourne; no visitors at home; shopping—essentials only, no new L 00 hours. Zoom plea before Judge turnover but NDIS doesn’t passion for good wine … 10 Prometheus Bound. holiday travel … amongst other things (Lasts for 24 days) 08 breakfast with the Lyon for young man. Acted fit kids. Our family centred
12 VBN VBN 13 around
for Melbourne. Premer Daniel co-accused in interlocutory day; curfew is decreased by … Pessimistic Fatmir predicts October Melbourne Lockdown Timeline: Hairdressers reopen. Andrews and Chief Health appeal. We walk round 1 hour (9pm–5am). (Lasts for voter suppression in key Covid-19 cases are low. From 700 per day, the rolling Officer Brett Sutton introduced Princes Park with his 15 days) states gives him an edge. around 18 14-day average in Metropolitan Melbourne is down to the new set of rules to rein in bouncy Nepalese Mountain Some Trump memes are September 00 hours. 7.2. Travel increased up to 25 km from home. coronavirus infections, which dog, not the smartest thing priceless. Colleagues’ droll ICJ Zoom have spread on four legs. Discuss 16 humour boosts morale. 16 meeting about disastrously over the case tactics & co-ordinating push for September 00 hours. past month. will we ever get bail law reform with Zoom Exercise limited on, plight of 16 like-minded agencies as 23 meeting with to one hour per criminal bar, numbers of women and instructing solicitors day, within 5 km coping indigenous people on from EDO NSW about of home. (Lasts strategies, how remand rise. Big ask with strategies to get an for 42 days.) our kids are the law & order platforms injunction to halt rainforest faring: my August 20 of major parties. Might logging in NW PNG. emergency doctor son hours. Pick escalating prison Debate whether expansive 12 in hotel quarantine orders 5 up takeaway populations at risk of rights in PNG constitution takeaway from top October 15 hours. customer. Masked guard dinner from Cutler & Co COVID lead to change? will be upheld by Supreme restaurants & plays online Cycle to asks for Bar ID. Record in Gertrude Street. Long Court given Malaysian 12 poker with his mates. 30 hours. Melbourne 22 Barbers of presence photographing queue of masked logging corporation bribes. 19Uni Rugby Club Brunswick for much needed a screen. Fill in name & restaurant-deprived September 15 hours. Decide to ask Finkelstein Zoom meeting about haircut. Cosimo, barber for phone number & tick box Fitzrovians. Cardboard box Scroll for advice. 07 the season that wasn’t 30 years, scarpered to on App to confirm well. full of containers with 4 through & what the future holds. Surfers & won’t be back. Waved on without bag preparation instructions. Facebook. Friend posts September Melbourne Lockdown Non-contact training for Sit waiting with two masked going through machine. video of two indigenous Timeline: outdoor 10 hours. The a collision sport can’t young men. Am offered girls about 9 or 10 in Nowa 29 gatherings, of a kind, 25 hours. Client in Bouillabaisse turns work. Even touch rugby is hipster beer or whisky. 19 Nowa singing I am, you are, are re-introduced: 5 people dock with two security practice involves key Jobkeeper helps balance out wonderfully with out. Women’s rugby one Water please. Answer emails 10 we are Australian with from 2 households only (Lasts officers in full PPE kit. worker visits. With visits books. Concerns re mental Tavel Rose. After Rhubarb bright spot with numbers on phone for 20 minutes. halting gestures. Their for 27 days) Prosecutor appears by out, switch to online health of staff & clients. Tart watch episode of The up following success of Madeline, masked and voices crack a little. By the WebEx. Says witness has service. What about poor Can we survive the double Bureau, the French mini- national 7s team. Ages October 00 hours. aproned, guides me to last verse, tears pour down done a runner. Judge comes families with no internet whammy of NDIS and series about spying on ISIS since first pulled on the WebEx Bail barber’s chair. Show her my my face. Doubt they would 11 on bench. Link breaks down access? CEO great in crisis. the plague? & the Russians. Endearing Black & Blue in ‘75. 7 Application head shot from March for have six months ago. between court & prosecutor major character dies. before Justice Coghlan guidance. We chat. She’s 30 hours. Late I explain to judge about Melbourne Lockdown Timeline: Following Distraught. What 40 hours. Paul after failing twice before from Bendigo, now in July joining chambers witness. Judge leaves bench. a concerning increase in coronavirus cases, to turn to when Grabowsky airs his 20 magistrate. Prosecution Pascoe Vale. Fourth day at 18 Zoom drinks. Mourn the Twenty minutes later, link 19 face coverings are now mandatory in The Bureau weekly improvisation on concede exceptional work after anxious months AFL grand final going to restored. Prosecutor says Metropolitan Melbourne and Mitchell Shire ends? Have Bosendorfer piano with circumstances given likely on Jobkeeper. Finds out I Brisbane & likelihood no police think witness back on done Fauda, his red setter ambling past. three-year delay between was wine writer in previous 00 hours. Marcia worked crowds for spring racing. drugs. Reckon he’s dodging: July Babylon Berlin, His recitals a highlight for arrest & trial. Can they life. Asks for tips. Promise Interview with Rio Tinto Our civil lawyers seem he’s the crook, not my 13 Peaky Blinders… friends as are regular jazz prove client an to email. Leave satisfied, 23 Professor Marcia to encourage busy. Banter about whether client. Case adjourned to 28 Wait for the new guitar solos by unacceptable risk of no longer an aging hippie Langton for International indigenous Trump can retain power. January 2021. Judge grants Trent Dalton and Richard old mate reoffending on bail? Call with a mullet. Commission of Jurists employment. Now outraged costs certificate. What a Flanagan novels? John Ryrie. client in custody. He’s Webinar series. She leads by their blasting of ancient October 30 hours. waste of time & money. What a taken advice to shave consultations about sites in WA. When will 00 hours. Drive to August boon is beard, don long 09 indigenous voice to governments discard Court of 26 chambers, get On 27 October 2020, 10 music in sleeved shirt. Sheds parliament after paternalism & accept 12 Appeal rules on masked & robed and walk lockdown restrictions started lockdown. tears saying how government’s rejection of that indigenous people interlocutory appeal. Does to County Court. Carmody to ease. The size of gatherings tough it is on his missus Uluru Statement. We’ve must determine their not even grant leave to J ordered me & client to increased. Restaurants and September with four kids. Calls known each other since own futures? appeal. Can’t believe it. appear to pre-record a bars started to open. Since impressive prospective native title days. Run Boyce abashed. Is it a High Melbourne witness in South Australia lockdown restrictions began 14 employer. Judge grants bail. through timeline since Melbourne Lockdown Court point? Lockdown Timeline: who didn’t front for on 26 March 2020, the total August Lectures client: his future Wave Hill walk-off in Timeline: Victoria a singles social bubble of one committal or trial when stay at home order until this 30 hours. is in his hands. Wonder if struggle for indigenous 2 has introduced a August other person is introduced, first listed. Lonsdale Street date was 168 days or 24 Steve Anger he can handle freedom in rights. Two steps forward, curfew from 8pm to 5am each 13 otherwise no visitors; exercise deserted. Eight court staff weeks. 17 is counsel for these times. two steps back. night, and Stage 4 restrictions limit increased to 2 hours per in foyer. Their only
14 VBN VBN 15 around
Amel Masinovic around What are your areas of practice? My main areas of practice are administrative law and commercial law. What are your interests and hobbies (outside of the law)? I like to keep myself busy with weightlifting, worldbuilding and wandering. I have been weightlifting since I first joined a gym while I was at Monash University. It helps around urban landscapes. keep me disciplined, releases What are you looking forward to Tanya Kamil Highlight of the course? stress and has improved my most at the Bar once COVID-19 The highlight of the course was orientation day. confidence. Worldbuilding restrictions are eased? It was wonderful seeing so many smiling and refers to the development I am looking forward to welcoming faces before we knew what the next of a fictional world through making the most of the few months had in store for us. Trial boot camp. writing, art and other media. Bar’s open door policy and Not so many smiling faces were seen until the I have been writing about my meeting my new colleagues signing ceremony! particular fictional universe and competitors. It has Favourite session in the course not directly related for years now and often use been strange to get through to your intended area of practice? it for tabletop roleplaying the readers’ course without My favourite session was called ‘Taxation and games such as Dungeons and meeting the entire cohort the Barrister’ delivered by Tony Pagone QC Dragons. I enjoy wandering in person. and Eugene Wheelahan QC. I have never been A more convinced about setting up an accurate log book, right financial structures and good banking habits. I left the session wanting to lecture my family about their taxes and to find an accountant! What are you looking forward to most in joining DIGEST PART II the Bar? What I most look forward to is working with TEMPLE SAVILLE, HADI MAZLOUM Paul Jeffreys other barristers on cases and in different areas Highlight of the course? of the law. I am also very much looking forward AND Readers’VERONICA HOLT Seeing the joy on the faces to soon meeting in person all the new friends of the new readers and I have made! n 22 October 2020, their families during the 32 readers (virtually) Bar Roll signing ceremony. signed the Roll of Counsel, What are your areas of having completed the practice? two-month readers’ All areas of commercial course entirely online. Gemma Cafarella Simon P Thomas and public law, with How would you describe this about some of our own diverse What are your areas of practice? No doubt, as you will all recall, coming to particular interests in readers’ course in one word? life experiences. Crime, quasi-crime, public/admin, the Bar is both an exciting and challenging taxation and migration. Can I have a phrase? If so: Why did you decide to become a international. endeavour, even more so given COVID-19. Why did you decide to “you’re on mute”. barrister? What are you looking forward to most in In this context, Victorian Bar News become a barrister? Highlight of the course? I worked as an associate public joining the Bar? members, Temple, Hadi and Veronica O To pursue a long-term I loved Tim Goodwin’s defender in VLA Chambers for Being part of a community that really reached out to the readers, asking them to career that is interesting, session on diversity and two years and I loved it so much cares about doing the work well and for share some information about themselves challenging and rewarding, inclusion at the Bar. He shared that it encouraged me to take the right reasons. so that the Bar can get to know our newest and one through which I a lot of his own story and that the Bar exam. Being trusted to If you could describe yourself in three words, members. In this Readers’ Digest Part 2, we can meet and assist a wide really encouraged us to open present someone’s case in court what would they be? introduce you to some of the September range of people. up to each other as readers is an incredible privilege. Keen as mustard. 2020 readers.
16 VBN VBN 17 around
More like ‘obsessions’. Alexander Marcou Before COVID-19 Lowlight of the course? expectations. I felt struck, I spent a lot
around Julian Murphy Experiencing my one that I learned a great of my time training in How would you describe this readers’ Todd Allen technical difficulty in the deal about the practical Olympic-style weightlifting. course in one word? How would you describe this readers’ course whole course during the aspects of advocacy, in At the moment, I practise “Your-mic-is-muted”. in one word? Bar Roll signing ceremony. a very short time. I am yoga and meditation. Did the course meet your Zoom. And I only had one line… very grateful to all of More recently, I have been expectations? Why did you decide to become a barrister? “Thank you”. our presenters for working on a creative Yes, except for the dress code. Mainly for the wig but also for the Did the course meet your volunteering their time writing project and Initial expectations relating to a challenge, the independence and the expectations? for the sheer love of it. composing short piano formal dress code were (thankfully) opportunities to be on my feet in court. Having been a vocal critic What are your interests and tunes. I have an unhealthy lowered when various presenters What are your areas of practice? of CPD sessions as a hobbies (outside of the law)? interest in personality (including judges) appeared in Most of my experience is in construction solicitor, I have to say that I am not sure that ‘interests’ tests. And of course, I love polar-fleece, hoodies and other and property but I hope to build a broad the course far exceeded my is the right word. a good dance. casual attire. commercial practice at the bar. Were you able to develop friendships/ relationships with the course being conducted online? Surprisingly yes, and I felt like Nick Kotzman How would you describe this readers’ cats, dogs, turtles and children) I also got to know a few fellow course in one word? Singular. on a level not ordinarily facilitated readers’ cats, who would occasionally Were you able to develop friendships/ by the course. wander across their keyboards in relationships with the course being What are your areas of practice? front of the camera. conducted online? I aim to develop a commercial Despite everything, our cohort practice with a focus on competition developed a great rapport and got to and consumer law. know each other (and each other’s
Heather Anderson How would you describe this readers’ Melanie Albarella course in one word? Highlight of the course? Rollercoaster! Being exposed to several What, if anything, did you find exceptional presenters (judges, difficult about doing the readers’ silks, junior barristers). course online? What are you looking forward to Missing out on developing most, at the bar, once COVID-19 in-person friendships and doing restrictions are eased? the course whilst home-schooling, Being in the city and able to get having no day-care and a noisy the most of the “open door policy” husband at home! that people speak of. What are your interests and hobbies Why did you decide to become (outside of the law)? a barrister? I love travelling to new places, I enjoy the art of advocacy, decorating cakes and watching the flexibility of it and making F1—in person preferably! a real difference.
18 VBN VBN 19 around
Rhiannon Malone Harry Hill- Angus Why did you decide to Favourite session in the
around become a barrister? course not directly related Smith Macaskill How would you describe this How has your relationship My primary reason for to your intended area of readers’ course in one word? with your mentor developed deciding to become a practice? Housebound. during COVID-19? barrister (at the age of I loved the “critical Why did you decide to My mentor, Roslyn Kaye, 11) was “so I can wear software for become a barrister? has been really supportive that fancy wig and funny barristers” session I loved mooting when I was and has checked in with gown”. The reasons for my with Emyrs Nekvapil, at law school and this was me regularly during the journey to the Bar have or King Emyrs as we then reinforced by getting readers’ course. I worked developed in seriousness dubbed him after that into a real courtroom as an with Roslyn on several since those days; however, I session. I’m not the best associate to Justice McLeish. cases during my time as a never imagined practising with technology but he What are your areas of solicitor, and have enjoyed in commercial litigation/ presented in such an practice? discussing some of my insolvency when I was at open manner that I felt Any brief I can get. learnings and challenges university. Suffice to say far less intimidated about with her during the that the moment I went getting my head out of readers’ course, and to Ludlows to purchase my the sand. hearing her perspective wig and robes and saw my If you could describe Tessa Meyrick, second from right on them as an established reflection, I couldn’t help yourself in three words, barrister. but feel proud for making what would they be? What are you looking forward that 11-year-old little girl’s Determined, loyal and to most, at the bar, once Tessa Meyrick dreams come true. honest. What are your areas of practice? coming to the Bar seemed like the natural COVID-19 restrictions are I practise in commercial, regulatory and next step. eased? public law, including in constitutional What are your interests and hobbies (outside I am looking forward to and judicial review matters. I’ve come to of the law)? getting into chambers the Bar from the public law team at the Together with three friends, I run a and experiencing some Victorian Government Solicitor’s Office, community choir in Melbourne’s inner of the collegiality that and before that was a senior associate in west, which keeps me pretty busy when the Victorian Bar is well the commercial litigation group at Allens. I’m not working or parenting. We’ve known for. Why did you decide to become a barrister? managed to keep rehearsing despite What are your areas of Because barristers get to do the juicy stuff! not being able to sing together in person practice? I love the creativity of legal practice and since March. My background as a solicitor includes common law, professional indemnity, class actions, insurance, Fiona Martin statutory compensation What are you looking forward to most, at the bar, once COVID-19 (WorkCover) and some restrictions are eased? commercial litigation. Not sitting in front of a computer screen for a court I hope to build on my appearance and getting back into a physical court room… experience of class with shoes on this time. actions and large scale What, if anything, did you find difficult about doing the readers’ litigation, whilst at the course online? same time consolidating Having to adapt to living in front of a screen and missing my personal injuries face-to-face interaction. It’s hard sitting in front of a screen experience by taking all day so I really struggled with that, but it meant that our on plaintiff work (my group was able to complete the course and it all worked out background as a solicitor well, so I don’t complain. having been on the What are your interests and hobbies (outside of the law)? defendant/insurer side). I enjoy home renos and I’m constantly up to something around the house. I also love the water and swim a lot. And if all else fails, you’ll find me glued to a wine glass somewhere.
20 VBN VBN 21 Corner Poetry around
Locked Out (with apologies to Crowded House)
OREN BIGOS QC
I’ve been locked out, can’t go in my room But I hope they’ll let me come back in soon. For many weeks, I haven’t been to town I’ve worked from home during the endless lockdown. And I tried, for many hours To make sense of the permitted worker rules But I gave up, they were too complicated I can’t wait for lockdown to end, it can’t happen too soon! And I’ve been locked out, of my chambers, no! It’s not the same to appear in court from home. For many months, haven’t seen my friends Because my chambers – I could not attend. I miss my couch, my desk and my books And my state-of-the-art printer/scanner too But most of all, I miss the coffee I’m sure the Hardware Lane cafes miss us too… Counting days, when will it come around? Can’t wait till it ends, this long lockdown. Yes, I’ve been locked out, couldn’t go in my room, But now restrictions eased, the lockdown’s through. Slowly the buzz builds up on the floor Our Bar’s back in business, that’s for sure—Yes it is!
22 VBN VBN 23 around
s the oldest child of a single mother, The report identifies, for example, that harsh low a migrant woman working very hard status work was done by many of these displaced around to put food on the table for her former residents of Japan. This ‘status’ has been passed children, I certainly felt obliged to down to their children and grandchildren, who are seize any chance at education which came my way.” bonded by intergenerational slavery to labour and are Daye’s long list of academic awards is testament to that. disappeared if they become inconvenient. They are “AIn the same week that Kamala Harris was telling her completely restricted from changing residence or job, amazing life story, raised by a single immigrant mum, or attaining higher education. I was listening to Daye Gang, a young barrister in The Kirby Commission of Inquiry also pointed to Gorman Chambers. prosecutors and judges within North Korea as perpetrators The International Bar Association (IBA), founded of crimes against humanity. However, North Korean legal in 1947, is the global voice of the legal profession. Each information is not readily available in English. Daye is year, the IBA awards the prize bridging this gap by translating all North of “Outstanding Young Lawyer of the Korean laws into English for public use. Year” to one lawyer in the world who is In March 2016, Daye was accepted under 35 years of age. The 2020 winner into the PhD program in the Michael is Daye Gang. She is the first Korean Kirby Centre for Public Health and and first Australian to win the prize. Human Rights at Monash University. It is an outstanding achievement, Her research is on restorative justice born of hard work and courage. I have for sexual and family violence. The persuaded Daye to let me tell something plan is to help design programs and of her story. evidence-based policies for victims of In 2013, the United Nations Human systemic human rights abuses, including Rights Council established the victims in the DPRK. Commission of Inquiry on Human One of Daye’s ambitions is to visit Rights in the Democratic People’s the small town where her family comes Republic of Korea (DPRK) (North One of Daye’s from, now in the territory of the DPRK. Korea). It was mandated to investigate ambitions is to visit She has previously written: “I want to the grave violations of human rights in the small town where locate and meet my relatives, on both the DPRK. Australia’s Michael Kirby sides of my family, who have been was appointed as Chair. The ground her family comes from lost to us… I want to be able to look breaking report found that the main now in the territory my relatives and my people in the eye security agencies were perpetrating and tell them I fought for them with crimes against humanity with impunity, of the DPRK. the privileges that were given to me IBA OUTSTANDING including summary executions and because I was educated in the West, YOUNG LAWYER other extrajudicial killings, enforced disappearances, in the English language, and in law.” OF THE YEAR torture, prolonged arbitrary detention, rape and sexual In her advocacy work, Daye has already done some violence of comparable gravity. hard yards, speaking to key groups in Washington, The Commission found that either the International Brussels, and Geneva. Yet here in Melbourne walking out Criminal Court or an ad hoc international tribunal must of Gorman Chambers—which houses 34 female criminal be given jurisdiction to address the ongoing commission law barristers—she has found herself mistaken at court of crimes against humanity perpetrated in the DPRK, so for the interpreter or the AFM, and like many young that those most responsible could be prosecuted. women in the law, receiving unwanted advances. Our Daye’s work on North Korea springs from those progress is real, but disjointed. recommendations. Daye says the Kirby report led to the Daye read with Rohan Lawrence, and her senior establishment of a UN field office in Seoul and enabled mentor is Claire Harris QC. She has been mentored by ONE NGOs to win funding to investigate international crimes. justices at the Family Court where she was an associate. JULIAN Daye has been working on a number of reports. She It was ICJ (Victoria), who years ago sponsored her to OF MCMAHON was legal consultant for the Citizens’ Alliance for North a Canberra conference where she met colleagues who Korean Human Rights report, investigating whether the opened doors to much of her work. mass movement of ethnic Koreans from Japan to North * For those looking for some enjoyable reading on Korea, Korea between 1959 and 1984 was actually a North the author recommends Han Kang’s Human Acts, and OUR Korean intelligence operation of forced displacement and Kyung–Sook Shin’s The Girl Who Wrote Loneliness, enslavement of almost 100,000 Koreans. The report is part which give deep insights into South Korean life, especially OWN of the overall project to build cases for prosecution. for women in the last few decades.
24 VBN VBN 25 news and views
years—making it difficult to take feel it’s appalling. I had to embody Industries, Freely Savage’s biggest News cases at the Melbourne Bar. While the character and make a case for client, and secure an unauthorised Elliot remains on the Bar Roll (as he each character’s point of view. Legal secondment by promising something news and views news describes it, “a threadbare security training was very good for that. almost impossible. The high wire &Views blanket”), he has not taken Shakespeare too, who although not a act requires resolving four sexual a brief for 18 years. lawyer, never gives a character a bad harassment claims brought by former The law appears to have given line. Every character gets a certain employees against senior managers— Elliot plenty of material to work respect, just as our clients are meant within a year. The book gets its title with as a writer, though. He has been to.” Elliot also pays attention to his from Maserov retelling his own writing since school, and not being characters with a just and loving gaze predicament to his children through AN INTERVIEW WITH a religious person, Elliot took great directed upon their independent a fairy tale in which a court jester comfort in the arts in difficult times. reality in his novels. falls out of favour with the king, who He wrote in secret at university His latest book, Maybe The stays his execution for a year by because “while it might have been Horse Will Talk, is about Maserov, promising to teach the king’s prized socially acceptable to tell your friends a second year lawyer at the Collins horse to talk. you couldn’t meet them for a coffee Street-based, Freely Savage Carter Elliot presciently chose the theme or a drink because you were going Blanche. Maserov, recently separated of sexual harassment for The Horse to band practice, it never seemed from his wife and their two children, back in 2012, long before the #metoo socially acceptable to tell friends hates his job as a battery hen movement that exploded in 2015 and ‘I can’t meet you because I’ve got to solicitor in a large corporate law has continued to have local fallout get home and perfect a paragraph.’” firm. Maserov, whose boss, Mike on institutions like AMP, the Federal When asked if legal training Crispin ‘Crispy’ Hamilton, has a Government and even the High Court ELLIOT helped his writing, he says, “it didn’t Stalinesque management style, is in 2020. “It seemed obvious. Sexual help me stylistically per se, although terrified of losing his job, the job harassment and corruption have I still use words like per se—so he hates, but has to keep in order to always been there. You could see it. probably it’s crept in there, but it did have a hope of paying off the family I could see it as a baby lawyer and teach me to look at both sides. Seven home he is no longer living in. naively was shocked by it. Reform Types of Ambiguity [a novel told in When Hamilton lets slip to Maserov seemed to be window dressing. When PERLMAN seven parts by seven characters] that the firm will be letting go of I talk to lawyers of my generation, JUSTIN WHEELAHAN AND CARMELLA BEN-SIMON is an example. You have characters him at the end of the year, Maserov and also to younger lawyers to whom sometimes doing appalling things, decides that the only way he can keep I tell how it was in my day, they but how does the character in his job is to audaciously approach quietly admit, almost in a whisper, hile the law may have slept question feel about that? He doesn’t Malcolm Torrent, the CEO of Torrent ‘It’s the same’. Then you’d hear these in Elliot Perlman, it has not shocking stories, shocking in the been dead. Before proceeding sense that they are terrible, but not in with this interview Elliot was Inside the jury room the sense they are surprising. There anxious to make a disclaimer are certain things about lawyers. We that he was not holding One trigger for writing his second novel were forming opinions about the guilt are a self-selecting group who have himself out as having any expertise in law, nor Seven Types of Ambiguity—which has a or non-guilt of the accused based on demonstrated capacity for hard work, fraudulently passing himself off as a practising criminal trial at its centre—was Elliot’s extraneous or irrelevant information. intellectual rigour, an ability to apply barrister, a rare admission for someone still experience, first while a law student as During a break, one juror was trying rules dexterously to a multiplicity technically a barrister. foreperson on a jury, and then later as to pick up the 12.15 at Morphettville of circumstances, and with luck— Elliot fought the law, and fiction won: he an associate at the Supreme Court. The on his pocket transistor radio and W sometimes a certain intellectual completed his articles, worked as a solicitor for late Professor Louis Waller permitted was willing to vote a particular way courage. But society requires a few years, and then as an associate to Justice Elliot, still a student at the time he was to increase his chances of hearing something more from individual Geoffrey Eames at the Supreme Court of Victoria, on a jury, to record Professor Waller’s it. Practising lawyers seldom get practitioners. Lawyers are expected during which he wrote his first novel,Three Dollars. Evidence lectures in absentia on the the opportunity to see that. The to have a certain moral and ethical
“Given the old middle-class parental adage, ‘Don’t condition that Elliot told him what went public would like to think that juries photo courtesy of david cook integrity that asymptotes towards look to the arts for an income’,” he says, “ironically it on in the jury room. decide things on the basis of forensic that expected of the judiciary. was on the strength of an advance for Three Dollars, Elliot says, “I found the experience evidence: blood stains, fingerprints, There are numerous examples that I got the momentary, fleeting, mirage of the of deliberating with 11 other people DNA samples. The profession throughout history of lawyers financial security necessary to take the terrifying who couldn’t get out of it, who had would like to think it’s on the basis exhibiting tremendous moral courage risk of coming to the bar.” Elliot enjoyed practising never demonstrated in their whole of a rational and critical analysis of in their professional and their as a barrister, but was incrementally drawn to fiction lives any capacity to assess evidence the arguments and all the evidence personal lives. Those people play like a moth to the flame. He went on a book tour dispassionately, both fascinating and adduced. The 12.15 at Morphettville a vital role in the functioning of to the UK, and then moved to New York for nine frightening. You could see people isn’t really meant to enter into it.” a healthy democratic society.”
26 VBN VBN 27 The
“But lawyers per se are not I wanted to shock the male reader into thinking this self-selecting with respect to rigorous is what it is it’s as bad as this. It’s a male problem. JURY moral or ethical integrity. Lawyers TRIALS news and views news can behave, professionally within has a moral purpose and a legal theme The fears and anxieties that are their practice and in their interaction about impartiality and justice, even a inherent in Jewish humour are felt with each other, as unethically as any trial of sorts. Catvinkle, a somewhat ultimately by everybody, irrespective other human being. We’re kidding self-centred cat, is asked to defend two of religion or ethnicity, and that’s why ourselves if we pretend otherwise.” sheep wrongly accused of eating tulips. it’s appreciated so widely. Everybody The book features graphic accounts The sheep are easy targets because knows these feelings. It’s just that, for R v CHAMBERLAIN of brutal sexual assault, as well as whenever the matter of the missing historical reasons, Jews feel them first A RETROSPECTIVE tender but awkward consensual tulips is discussed in front of them, and more intensely.” encounters between Maserov and they do tend to look very sheepish. There is much local colour in The his co-worker, Jessica in Human Elliot wrote the first book in the series, Horse for Melburnians: a Degreaves Resources, whom he befriends. Elliot The Adventures of Catvinkle, out of a Espresso Bar, a hipster infested Andrew Kirkham* explains after writing The Street sense of anger and impotence about Grosvenor hotel in St Kilda, a secret Sweeper, a novel about the Holocaust a growing tolerance of intolerance, price fixing meeting at Romeo Lane, n 17 August 1980, and the Civil Rights movement, which conspiracy theories, and anti-science. a Torrent manager’s wife waiting for Azaria Chamberlain, required six visits to Auschwitz for Not knowing where to start, Elliot her Cayenne E-Hybrid to be serviced then aged 9½ weeks, research, he did not want to write started with children, and stories about in Surrey Hills. Elliot was hoping an was attacked and something dark, and put off writing the social inclusion, anti-bullying, and Australian film or TV production killed by a wild dingo sexual assault scenes. “But I realised anti-xenophobia illustrated by animals company might be interested in the in the vicinity of the that obviously if you are going to deal that were not threatening to parents or book, but the calls weren’t coming in. camping ground at Ayers Rock. On 29 with toxic workplaces you need to teachers. Elliot’s aim was to write books Then, early one morning, lifting October 1982, following two inquests deal with sexual harassment. If you’re that amuse and entertain adults with one son out of his child car seat in the in 1981 and 1982, Mrs Chamberlain going to deal with sexual harassment in-jokes, allusions, and irony, while kinder car park, he got a text: “Hi Elliot. was convicted of the murder of you need to be upfront about it and be at the same time embedding ethical Call me when you wake up. We want Oher baby daughter, Azaria, and shocking—not so much for women— concepts in a gripping and nuanced to buy the Horse”. The text was from Mr Chamberlain was convicted but for that cohort of men that knows story for the children, so that reading the President of Paramount Television of being an accessory after the intellectually that these things go on, would be a better shared experience. in the US, who want to turn The Horse fact of such alleged murder in but since they aren’t perpetrators Despite the confronting subject into a series, but move it to a generic the Supreme Court Darwin. The themselves, they don’t have an matter of The Horse, unlike some of US city like Chicago. They have asked Chamberlains’ appeal, heard by emotional sense of it. I wanted to shock Elliot’s darker books like The Street Elliot to write and executive produce the High Court in 1983–1984, the male reader into thinking this is Sweeper, The Horse is for the most it working with an experienced was unsuccessful, the court being what it is, it’s as bad as this. It’s a male part hilariously funny. The humour is Hollywood showrunner, and to “Tell split 3:2. A royal commission into problem. Women suffer, but it’s a male immediately recognisable as Jewish, it in your voice. We want to buy your the Chamberlains’ convictions problem. It’s not about sex at all but the like a cross between Franz Kafka and voice”—so a hint of Melbourne may presided over by Justice Morling arbitrary and shocking abuse of power. Danny Katz. For example, when an find its way into the series yet. in 1986–1987 exonerated the Maserov is appalled by it. Maserov is out-of-work solicitor sets himself up Elliot explains how television has Chamberlains, and their convictions a good guy, but he treats it forensically, as a life coach to a small-time hoodlum changed with streaming services like were ultimately set aside. at least initially—like just another habitué of his local pub, he ends the Amazon Prime, Netflix and Apple In 2012, some 30 years after problem you have to solve.” session advising him not to lose his TV. “You don’t need 20 minutes with the Chamberlains’ convictions, a Like the work of Graham Greene temper or use his fists or his feet on breaks and artificial cliff hangers Northern Territory coroner found and Raymond Carver, The Horse the way home, adding, “If you do have where you are not allowed to offend that Azaria Chamberlain had been has a strong moral centre and sense to defend yourself, try sarcasm. It’s people. When I failed to hide my killed by a wild dingo, and apologised of compassion. I ask Elliot if he is a scalding but leaves no injury that can surprise that they wanted me to adapt to the Chamberlains for what moralist of sorts. “I’d have to cop to be picked up by X-ray, CT scan or the novel, Paramount explained that they had been through. Michael that. I do it reluctantly. I want people any other imaging device. And it’s not the author of a novel with what they Chamberlain died on 9 January to be able to escape from their lives illegal. Not yet, anyway.” described as a ‘distinctive’ voice is more 2017 still without an apology from with my books and not be lectured to, I ask Elliot why the humour is in demand in the age of streaming the Northern Territory government but historically I can see that all my instantly recognisable as Jewish. services.” Elliot can finally let go of for the miscarriage of justice which books are animated by social issues “Jewish humour is a tried and tested the Bar as his transitional object. so adversely affected all of the and political issues, by those moments defence mechanism that’s traditionally Chamberlain family. Elliot Perlman’s Maybe in our lives where the personal meets helped Jews cope with a sense of their At the time of Azaria’s death, dingo the Horse Will Talk and the political”. precariousness, a precariousness attacks on humans were common in Catvinkle & the Missing Elliot’s most recent children’s book which derives from their history as the area of the Ayers Rock camping Tulips are available now. Catvinkle and the Missing Tulips, also a vulnerable minority everywhere. ground. Several young children had
28 VBN Lindy and Michael Chamberlain walking into the Darwin Supreme Court VBN 29 news and views
been bitten in July-August 1980. On It was in these circumstances such by the royal commissioner. He seat in which Mrs Chamberlain was 16 August, a young boy and a young that the Crown ultimately alleged ultimately found that if there was alleged to have killed her child. girl were separately attacked by that Mrs Chamberlain, without any any blood in the car, it was minimal Two persons, including the ranger news and views news dingos. On other occasions, dingos apparent motive: and was not the child’s blood. An at Ayers Rock, engaged in the had pulled a cushion from under » entered the tent and put on a pair appropriately qualified scientist search for the child. Both of them, a woman’s head whilst she was of tracksuit pants; exhaustively testing the entire car experienced in tracking, observed sleeping, and on another occasion, » left Aidan in or near the tent, which in 1986 was unable to detect blood dingo tracks proceeding from the dingos had pulled a sleeping bag meant that he was located close to in the car]; vicinity of the Chamberlains’ tent from a woman’s feet. On an earlier the car, which was parked next to » placed the child’s body in a camera and continuing to the sand dunes occasion, a child had been pulled the tent. [Why Mrs Chamberlain bag located in the car and cleaned east of the campsite and beyond. from a car by a dingo holding the would take Aidan to the tent if she the blood from the car. [If, as the They observed in the area between child’s head in its jaws. intended to kill Azaria remained Crown alleged, the blood in the car the tracks a drag mark and also The Ayers Rock park ranger had, unexplained.]; had come from an arterial spray this indentations in the sand apparently before Azaria’s death, written to » took Azaria into the car, seating would have been a significant task.]; caused by an object being laid down. the Northern Territory government herself in the front passenger seat » returned to the tent with blood on The indentations displayed a pattern predicting future dingo attacks at and holding the child; her hands and tracksuit pants. [No which was described by witnesses as Ayers Rock as a consequence of the witness recalled Mrs Chamberlain a knitted jumper or woven fabric. Mr local dingos having lost their fear The Ayers Rock park wearing tracksuit pants that night, Roff, the park ranger, gave evidence of humans. His letter stated that ranger had before although she herself claimed she that the object causing the drag mark children and babies were possible Azaria’s death written to put them on later in the night in the appeared to have been quite heavy prey. He sought both permission course of searching for the child.]; and that there were three areas and ammunition in order to cull the Northern Territory » removed her tracksuit pants and where it had apparently been put these dingos. government predicting washed her hands. [The royal down. He asserted that this evidence At 8pm on 17 August 1980, commissioner was later to find that, was consistent with a dingo dragging Mr and Mrs Chamberlain and future dingo attacks on the whole of the evidence, any the child and putting her down on their children Azaria and Aidan, at Ayers Rock as a marks on the tracksuit pants were occasions so that her clothing left a then aged six, were located at a consequence of the local not bloodstains.]; weave pattern in the sand. barbecue area in the Ayers Rock » returned to the barbecue composed At the trial, evidence was given by camping ground, approximately 20 dingos having lost their and with no signs of blood on her witnesses that a dingo had been seen to 25 metres west of their tent and fear of humans. clothes. [This absence of blood in the area of the Chamberlains’ tent car, which were located next to each would have been unlikely if there that night and, further, that about 10 other to the east of the barbecue » cut the child’s throat possibly with had been an arterial blood spray minutes before the child disappeared, area. The Chamberlains’ other son, a pair of scissors. [The prosecution from the child as alleged by the the growl of a dingo was heard in the Reagan, then aged four, was asleep did not lead evidence that a search Crown.]; and vicinity of the Chamberlains’ tent. in the Chamberlains’ tent. All of the Chamberlains’ car by police » subsequently buried the child’s None of this evidence was contested witnesses at the barbecue area on 1 October 1980 indicated there body in the general area of the by the Crown. observed that at this time Mrs were no cutting implements in the camping ground. [There was While this evidence might be Chamberlain showed no sign of car. Scissors were located in the no evidence of either of the seen to run counter to the Crown’s any emotional distress or upset car one year later on 19 September Chamberlains doing anything allegations, there was one other piece and presented as a loving mother. 1981, but the royal commission like this, and no evidence of any of evidence which appeared to put Mrs Chamberlain left the barbecue found no evidence to indicate there shovels or digging instruments Mrs Chamberlain’s innocence beyond area in order to put Aidan and Azaria were any scissors in the car “that being seen in or around their tent doubt. Shortly after she returned to to bed. Her evidence at trial was that night”, i.e. the night of Azaria’s or car.] the barbecue, a Mrs Lowe as well as she put the child in a bassinet and death.]; Later, after Mrs Chamberlain and Mr Chamberlain and Aidan heard the tucked blankets around her. Because » waited for the child to die. her husband had joined the search child cry out from the Chamberlain’s Aidan stated that he was still hungry, [Depending on the injury to the for their child, Mr Chamberlain tent. Mrs Lowe said the cry definitely she obtained a can of baked beans child this may have taken up to drove the Ayers Rock nurse, Mrs came from the tent and that she and returned to the barbecue with 20 minutes if what was severed Elston, to a motel where he and Mrs was positive it was the cry of a small Aidan after a time estimated by was a jugular vein or two-to-three Chamberlain were to spend the night. baby and not of a child. She said the witnesses of about 5 to 10 minutes. minutes if there was a severance of Mrs Elston saw no signs of blood cry was loud and sharp and seemed On her return to the barbecue, Mrs the child’s carotid artery. There was in or around the area in which she to stop suddenly. Mrs Chamberlain, Chamberlain, according to witnesses, no evidence the child had cried was seated, i.e., the front passenger on the suggestion of her husband, appeared composed and showed no out at this time. Stains on the left seat, she smelt no blood and gave no walked towards the tent and, when sign of emotional upset. No person hinge of the passenger seat and evidence after the event of blood on about five yards away, called out present saw any sign of blood on her the floor beneath, thought to be her clothing. No signs of blood were words to the effect “that dog’s got my person or clothing. Azaria’s blood, were discounted as located in the carpet in front of the baby”. Clearly, if the cry was that of
30 VBN The location of the jump suit. VBN 31 news and views
Azaria, then the Crown case could Chamberlain was not suffering any South Wales. Almost no residue work notes and partly on their own conflicting expert evidence on the other tests and other methodologies. not succeed because it occurred at post-natal depression], the extremely was left after her testing so that the experiments that the antisera used to issue, a finding that stains in the car Certainly in the trial, the defence led a time when according to the Crown limited opportunity Mrs Chamberlain defence may test the same materials. test the bloodstains for the presence were foetal blood could not safely be evidence from an odontologist that news and views news she had been killed some time had to commit the crime and the Gels used in some of those tests of foetal haemoglobin was not mono made. Only Justice Murphy raised the cuts in the jumpsuit could have before. As Deane J stated in the High undisputed fact that both of the requiring a subjective interpretation specific for that purpose. The antisera the issue of how it could be known been caused by a dingo’s dentition Court appeal “unless Mrs Lowe’s Chamberlains were of good character. as to whether they revealed the was supposed to contain antibodies whether the jury in fact relied on and his evidence, backed up by clear and definite evidence that she On the lay evidence, it was apparent presence of foetal haemoglobin were which would react only with the the Crown’s evidence that there was other world experts, was ultimately heard the cry of a baby is rejected as that the Chamberlains were innocent destroyed by Mrs Kuhl before the antigens of the gamma chains of foetal blood in the car. He noted accepted by the royal commission. mistaken, the Crown’s case against of all charges. trial and after the second inquest. haemoglobin molecules. Adult that the jury’s [adverse] view of The Crown further relied on the the Chamberlains must fail”. He The Crown, however, relied This was despite the fact that her file haemoglobin contains four molecular the exculpatory evidence may well evidence of a UK witness, Professor noted that the Crown did not seek to heavily on forensic evidence in was headed “Alleged suspicious death chains: two alpha chains and two have been taken in light of their Cameron, who professed to see the impugn Mrs Lowe’s credibility but support of the charges. It needs of Azaria Chamberlain”, and the clear beta chains. Foetal haemoglobin acceptance of the scientific evidence imprint of a small adult hand in simply suggested that she may have to be understood when reviewing foreseeability of the Chamberlains contains two alpha chains and led by the prosecution in relation to blood on the jumpsuit. Ultimately been mistaken. the Crown’s evidence of alleged being charged with criminal offences. two gamma chains. The blood of a foetal haemoglobin as being reliable. he relied on a photograph of the Murphy J, the other of the two bloodstains in the Chamberlains’ car This meant that the original gel newborn child contains both foetal If the jury did find, based on the jumpsuit and failed to understand dissenting High Court justices, listed that the car was forensically tested a could not be subjectively assessed haemoglobin and adult haemoglobin Crown evidence, that stains in the car that what he thought was blood on several issues which he considered year after the alleged murder during by experts called for the defence, in the proportion of about 75% to 25%. were foetal blood, a finding which that garment was in fact soil. No militated against the Crown case. which it had been exposed to hot who had to rely on a photograph Accordingly if the antisera was not four of the five judges of the High other forensic witness and none of These were the complete absence weather in Mount Isa where it was of the gel. mono specific and not reacting only Court said could not safely be made, the five High Court judges could of any motive for Mrs Chamberlain located. Scientists agreed that this Mrs Kuhl’s work notes obtained to the molecules in the gamma chain, see the imprint of a hand that he to have killed the child, the fact that would have the effect of denaturing during her cross-examination in but rather, reacting to molecules claimed to see. Professor Cameron the child’s body was never found, any bloodstains, i.e., any bloodstains the second inquest were provided in the alpha chain, the result is had a chequered career in the UK—a the absence of any identified murder would undergo biological changes, by the defence to two experts useless because both adult and foetal fact which was used by the defence weapon, the fact that there was no which were likely to affect the in biological science: Professor haemoglobin contain alpha chains. in cross-examination—after having admission of guilt from either of the reaction of blood to the various tests. Boettcher and Professor Nairn. Both Professor Boettcher noted that it been advised of his former forensic Chamberlains, that the murder by a Testing was carried out by a were distinguished and undoubtably appeared from Mrs Kuhl’s notes that mistakes by a prisoner in Wormwood mother of her baby was contrary to forensic biologist Mrs Kuhl, employed expert in this field. They gave she observed a more positive reaction Scrubs who had been convicted on nature [the evidence was that Mrs by the Health Commission of New evidence based partly on Mrs Kuhl’s by the antisera to test samples than The jump Professor Cameron’s evidence. The suit in situ L-R Greg Cavanaugh (solicitor Australian Legal Aid), to cord blood, i.e., blood taken from royal commissioner was ultimately Andrew Kirkham, Thomas Pauling (junior Crown an umbilical cord used as a control. very critical of the evidence of prosecutor at trial), Michael Chamberlain, Michael ‘Mick’ O’Loughlan (Crown solicitor), This is the reverse of what would Justice Murphy considered that it Professor Cameron and Mrs Kuhl. and Justice James Muirhead’s Associate be expected if the test sample was was irresistible that they should Prominent in the evidence led by on a view at Ayers Rock. of Azaria’s blood since cord blood is then disbelieve Mrs Chamberlain the Crown was that marks on the richer in foetal haemoglobin than is and the other evidence pointing to glovebox of the Chamberlains’ car the blood of a baby of Azaria’s age. her innocence. He concluded that it appeared to exhibit a spray pattern Further, the notes indicated that was impossible to know whether the asserted to be consistent with an Mrs Kuhl observed a more positive inadmissible evidence was relied on arterial blood spray landing on the reaction with the antisera than with and the extent to which it coloured glovebox when the child’s throat was antisera which was supposed to the jury’s views on other issues. He cut. Unfortunately those asserting react to any haemoglobin adult or stated that once it was accepted the same did not have a microscope foetal. Again this was the reverse that it was unsafe to conclude that of sufficient intensity to discover that of what would be expected since there was foetal blood in the car, the the alleged blood spray was in fact Azaria’s blood would have contained conviction of Mrs Chamberlain was covered by Duco and was a sound more adult than foetal haemoglobin. unsafe. deadening compound put into the Mrs Kuhl also did not engage in The Crown also relied on expert car at the time of its manufacture. control tests using aged samples. evidence from a hair expert that The defence put into evidence the The royal commissioner thought this there was no dingo hair found in glovebox of an identical car to that indicated a lack of awareness of the the tent, and relied further on the owned by the Chamberlains which dangers posed by denatured blood. evidence of a textiles expert that the displayed a similar spray pattern. Mrs Kuhl also failed to use adult damage to the jumpsuit which had Although information had been blood in control tests, i.e., testing the been found was caused by a cutting sought from the manufacturer antisera on known adult and foetal instrument and not by a dingo’s as to the cause of the pattern, no haemoglobin to ensure a reaction was dentition. Unfortunately for the information was able to be provided. valid for that particular antisera. Chamberlains, both of those experts It took a scientist many months of Four of the five High Court judges reversed their evidence in the Royal work following the trial to determine considered that, in view of the Commissions hearings in light of that the spray pattern was a rubber
32 VBN VBN 33 The Stewart Tipple solicitor, The Hon John Phillips Peter news and views QC, Greg Cavanaugh and Andrew Kirkham Nicholson’s cartoon that appeared JURY The first inquest was set aside in TRIALS in The Age secret on the application of the the day after verdict. Crown. In the second inquest, in which I commenced to act for the Chamberlains, they were called first as witnesses without having any idea of the huge amount of forensic evidence then held by the Crown to be presented after they had given their evidence. Our protests to the Crown and to the presiding magistrate about the unfairness of this, and its impact on the right of the Chamberlains Among the band of campsite witnesses, to decline to answer questions in the event they had sought to the incidents of marriage break up, alcoholism do so, were rejected. In addition, and psychiatric injury is high. cross-examining forensic experts after receiving their report shortly on matters that lay on the outer Among the band of campsite before they gave evidence was margins of their fields of expertise. witnesses, the incidents of marriage extremely difficult. However, Some of their opinions were based on break up, alcoholism and psychiatric the trial judge, who was at all unreliable or inadequate data. It was injury is high. Many feel that if times concerned to ensure the not until more research work had been they had somehow given their Chamberlains received a fair trial, done after the trial that some of these evidence better, or been more compound applied to the underside Another Crown witness, a doctor, a lemon thread through the collar. thought that what was done was so opinions were found to be of doubtful alert, or less trusting of the of the car during manufacture and asserted that a dingo could not Within a day or two, she was released unfair to the Chamberlains that he validity or wrong. Other evidence was authorities, the Chamberlains making its way onto the glovebox encompass the child’s head in its from jail, with a promise that she prevented the Crown from using their given at the trial by experts who did may have been acquitted. through a small pinhole. jaws. Shown a photograph by the would not be jailed again. inquest evidence. In addition, counsel not have the experience, facilities or They are far more heroic than they The royal commissioner considered defence, with a dingo encompassing The Chamberlains might have assisting the royal commission resources necessary to enable them see themselves. In no other case, that the fact that Mrs Kuhl could have the head of a doll the size of the expected sympathy on the loss subsequently put on record his view to express reliable opinions on some ever, has a band of prosecution obtained a reaction to her testing that child, he conceded that he may have of their loved child. Instead they that, in adopting this procedure of the novel and complex scientific witnesses joined together in a national indicated that the spray was blood been incorrect in his evidence. received from the media and others in the second inquest, the Crown issues which arose for consideration. road show, travelling from city to cast doubt on the efficacy of her Questioned as to why if a dingo was hostility, disbelief and an entrenched had accorded a very significant It was necessary for much more city, to protest against an unjust testing generally and the accuracy of involved there was no dingo saliva attitude that they were guilty. Media unfairness to the Chamberlains. research to be done on these matters decision. They helped prompt the her other results. He found that she on the jumpsuit, Mrs Chamberlain scepticism and criticism of the The prosecution of the to determine whether the opinions Morling Inquiry and vindicate the failed to carry out essential pre-use responded that it may be because the Chamberlains and their version Chamberlains in the circumstances expressed at the trial were open Chamberlains—and we owe them testing of antisera and failed to use child was wearing a matinee jacket of events played a very significant led to a shocking miscarriage to doubt. our gratitude. necessary controls with known foetal at that time. She went on to describe role in creating a hostile pre- of justice, caused by sloppy The Northern Territory government haemoglobin, which indicated to the matinee jacket in detail, including trial atmosphere and a pre-trial investigations and a lack of *These notes were used by Andrew abolished capital punishment in 1973. him that she lacked the considerable the fact that it had a lemon thread presumption of their guilt, as was objectivity on the part of the police Kirkham AM RFD QC on 9 September experience required to enable her to woven through its collar. This evidence indicated by a juror interviewed who, instead of objectively assessing Epilogue 2020 in a webinar presentation plan, and to carry out complex and was derided by the Crown, which in in the recent Channel 7 program the evidence, focused on obtaining on the trial of Lindy and Michael Many people who hurried to jump difficult testing procedures—at least its address to the jury described her entitled “The Lindy Tapes”. Both evidence to support their entrenched Chamberlain in the Northern on this forensic bandwagon were without careful guidance from a more evidence of dingo involvement as “a parents were derided and criticised belief that Mrs and Mr Chamberlain Territory, 13 September–29 October damaged by the experience. Some experienced biologist. calculated and fanciful lie”. It was only for not acting as their critics thought were guilty of murder and being an 1982. The trial transcript was in professional reputations were Another odontologist called by in 1986 after an English tourist fell that they themselves would act accessory after the fact of murder, excess of 3,300 pages. The High damaged. Others who were simply the Crown in relation to marks in from Ayers Rock and died and was if their child had been taken and respectively. Evidence called by the Court judgment was 121 pages. caught up in the investigations and the child’s blankets asserted that partly eaten by dingos that a police killed. How shallow and lacking Crown in support of their prosecution The subsequent royal commission trial were adversely affected when they were made by a blade. He did investigation of the accident site in perception. More recently the of the Chamberlains was in so many report was 379 pages. Nevertheless, their evidence was not accepted. this without checking the signs of revealed the presence of a matinee media created an adverse pre-trial instances grievously flawed. this brief outline provides an Some were adversely affected by damage with a microscope. When a jacket found some 160 metres from atmosphere in the case of R v Pell. The royal commissioner found that: overview of what was one of being exposed to intense publicity. textiles expert examined the damage where the child’s jumpsuit had been The police and authorities were Australia’s notable criminal trials, with the benefit of hindsight it could In an essay written 20 years after using an electron microscope, he found five years before. It was largely not detached and objective in the which—in the view of the author, who be seen that some experts who gave Azaria’s disappearance, John Bryson, found that the damage was caused covered by earth and exactly as way they went about their task of appeared with John Phillips AO QC evidence at the trial were over-confident author of Evil Angels (a leading book by insects, and the larvae were described by Mrs Chamberlain building a case for the purpose deceased for the Chamberlains— of their ability to form reliable opinions about the case), wrote: still in situ. in her evidence, including having of convicting the Chamberlains. miscarried badly.
34 VBN VBN 35 JURYThe news and views TRIALS Pell v The Queen [2020] 94 ALJR 394
GAVIN SILBERT
eorge Pell was convicted of one relevant evidence, favourable or unfavourable, and charge of sexual penetration of was unchallenged. a child under 16 years and four The applicant sought special leave on the grounds, charges of committing an act of first, that the majority erred in finding that the indecency with or in the presence applicant had to establish that the offending was of a child under the age of 16 years impossible to raise the necessary doubt and, second, when serving as Catholic Archbishop of Melbourne. that the majority erred in finding that the evidence The first four charges were alleged to have occurred of the opportunity witnesses failed to compel on either 15th or 22nd December 1990 and the fifth a reasonable doubt. at least a month later all following Sunday In a unanimous decision by a bench of seven the Gsolemn Mass at St. Patrick’s Cathedral. High Court granted special leave, heard and allowed The complainants were two cathedral the appeal instanter, quashed the convictions and choirboys “A” and “B”. The prosecution entered verdicts of acquittal. case was wholly dependent upon the The judgment of the High Court proceeded on the truthfulness and reliability of A’s entirely orthodox approach laid down in M v The evidence, B having died. A had not Queen (1994) 181 CLR 487 and Libke v The Queen made his first complaint until 2005 (2007) 230 CLR 559 and which had been misapplied and B had denied being assaulted by the majority of the Court of Appeal, namely prior to his death. The convictions whether the appellate court thinks “that upon the resulted from a second County Court whole of the evidence it was open to the jury to be trial the first jury having been unable satisfied beyond reasonable doubt that the accused to agree on its verdicts. was guilty”. In other words, whether the appellate The applicant was given leave to court considers “it was open to the jury to be satisfied appeal to the Court of Appeal on a single of guilt beyond reasonable doubt, which is to say ground which contended that the verdicts whether the jury must as distinct from might have were unreasonable and could not be supported by entertained a doubt about the appellant’s guilt.” the evidence. The prosecution led evidence from The High Court emphasised that such a case a number of “opportunity” witnesses as to the always proceeds on the assumption that the applicant’s movements following the conclusion complainant’s evidence is credible and reliable of Sunday solemn Mass which was inconsistent and that the appellate court must examine the with A’s account. The majority, Ferguson CJ and record to see whether, notwithstanding that Maxwell P, concluded that this evidence did not assessment, the court is satisfied that the jury compel the jury to entertain a reasonable doubt acting rationally ought nonetheless to have as to the applicant’s guilt; Weinberg JA, in dissent, entertained a reasonable doubt. The Court of concluded that it did. The critical question was Appeal majority’s decision was a solecism in the the effect of the opportunity witnesses’ evidence application of long-established principle. on the otherwise accepted evidence of witness A, The evidence of Monsignor Portelli as to the which was conceded to be credible and reliable. The applicant’s routine movements after the Mass, determinative answer was that this evidence was led although buttressed by other evidence, was by the Crown as part of its ethical duty to lead all unchallenged, together with evidence that the
36 VBN VBN 37 applicant was never unaccompanied The case attracted wide media followed the High Court decision and spaces, social cues, symbols and performances”2 in order within the Cathedral, also interest for obvious reasons. By the continues to this day where certain What will to ensure that the quality of justice is not compromised. unchallenged. This should have time of the trial the applicant had commentators continue to refer to the news and views news raised a question of reasonable doubt attained the rank of Cardinal and complainant as a liar notwithstanding Online justice v in-person justice—what in the minds of the jury and been was Australia’s most senior Catholic. the statements of the High Court courtroom justice does the research tell us? identified by the Court of Appeal He was the most senior Catholic that the decision “…proceeds on the Whilst we need to increase our factual understanding of majority. Additionally, the forensic cleric ever to have been convicted assumption that the evidence of the the impact of online justice on perceptions of justice, the disadvantage arising from a delay of such crimes here or elsewhere. complainant was assessed by the jury look like in the little research that is available is instructive. In a recent of 20 years was required by the Jury The applicant enjoyed a controversial to be credible and reliable” and that simulated Australian criminal trial study, where the Directions Act 2015 (Vic) to be used public reputation. The public attention “… the Court of Appeal majority did defendant appeared 1) online, 2) in the dock or 3) seated in favour of the applicant rather than assured wide public discussion and not err in holding that A’s evidence future? next to his lawyer, the results concluded that defendants to his disadvantage as applied by much public controversy amongst of the first incident did not contain appearing on screen were no more likely to be found the majority. his proponents and opponents. discrepancies, or display inadequacies, guilty than defendants seated next to their lawyer.3 There is little by way of general Publications including books fuelled of such a character as to require the JACQUI HORAN* However, defendants in the dock were more likely to be principle that can be taken from the public discord. jury to have entertained a doubt as found guilty. One US study found that defendants who the High Court judgment. The Certain sections of the media to guilt,” while finding it unnecessary OVID-19 court closures have turbo-charged the appear online from jail are more likely to have higher compounding improbabilities embarked on a sustained and to opine on the second incident. need for justice systems to embrace technology. bail and sentences imposed than those defendants that identified by Weinberg JA in dissent unrelenting campaign proclaiming The complainant was a dignified Justice delayed will ultimately result in justice sit behind their lawyer in the courtroom.4 Another US arising from the unchallenged the applicant’s innocence likening witness and the media criticism is denied, so the imperative for the application study concluded that asylum-seekers appearing remotely evidence of the opportunity the trial to that of Alfred Dreyfus. unfair and unjustified. of technology-based solutions to ameliorate online are more likely to be deported than those that witnesses should have led the the pandemic delays has been placed at the attend the courtroom.5 jury to entertain a reasonable doubt An hour or so after verdict I received an email from forefront of government and court agendas.1 As the as to the applicant’s guilt. The failure Immersive the Philippines advising me of the verdicts and the pandemic has made it too risky to conduct hearings in Echo virtual court of the Crown to challenge this C Cancellation configuration person, the Victorian legal profession has been agile evidence was fatal to its case. world’s press immediately reported the verdicts. communication and has adjusted well to online justice. Online justice diagram The rule in Browne v Dunn (1893) CP has rescued the court system from being at a stand- 6 R 67 required the prosecution, The media coverage was entirely Finally, the trial throws into Prosecution still. Whilst new technologies have been a god-send in before seeking to ask the jury to uninformed and written in the main question the efficacy of the 2020, will they, and should they become part of the ‘new reject the evidence of the opportunity by those who had not heard the Open Courts Act 2013 (Vic) and Link 6 normal’, post-pandemic? Link 4 witnesses, to challenge them in the evidence or examined the record the situation in Victoria as the One of the reasons that the Victorian justice system witness box; this was not done. and few of those writing had any suppression capital of the common did not grind to a halt in 2020 is because, unlike many CD W The established practice of the legal training. There was extensive law world. The trial was subject Link 6 other legal systems around the world, we had already Defense Witness
Court of Appeal to view the video criticism of Victoria Police, the to a suppression order to protect Link 2 begun to harness new technologies to our benefit. Echo Echo recorded evidence of witnesses on Director of Public Prosecutions, its integrity from the surrounding Cancellation Cancellation For example, vulnerable witnesses can give evidence such appeals was undesirable and who had carriage of the matter mountain of public commentary. Link 3 remotely; the Supreme Court webcasts trials, judgments Link 1 unnecessary for an appellate court once charges were laid and, of the Undoubtedly such an order was and sentencing hearings in high profile cases; some juries to make an independent assessment complainant, witness A, whose necessary. The verdicts came late have been given iPads to assist with their comprehension Court Officer of the evidence. The High Court identity was suppressed. one afternoon. An hour or so after System Administrator and deliberations. The innovations are numerous and Recording J stated that an appeal court should An examination of the critiques verdict I received an email from Transcription varied. New technologies have the potential to improve Translation Prosecution only view such videos in exceptional serves little purpose at this time. the Philippines advising me of Signing Services our justice system and cut the time and expense of court Echo circumstances and where there The allegation that Victoria Police the verdicts and the world’s press Cancellation work, which ultimately translates into greater community is a specific need. An appeal conducted a biased investigation immediately reported the verdicts. access to justice. court should not seek to duplicate was based on the allegation that The following day Australian media However, there is a gaping hole of understanding of The first ever online UK tax tribunal trials were the function of the jury in its complaints against the applicant reported the verdicts. There are the overall impact of online hearings on the quality of conducted in 2018. Appellants and representatives from assessment of the credibility of were intentionally solicited and now prosecutions on foot against justice. Perceptions of justice are important for citizens the tax office attended remotely from their home or office. witnesses where that assessment that there is evidence that the some thirty media organisations (defendants, victims and plaintiffs) who need to feel Despite frequent technical glitches, the parties considered is dependent on the evaluation of open and unbiased character of for contempt of court arising from as if they have been heard. Whether their ‘day in court’ the format to be appropriately formal. The Court set up the evidence of the witness in the a police investigation was lacking. breaching the suppression order requires attendance at a physical courthouse or whether a virtual waiting room where the parties were regularly witness box. Judges of appeal do The Director of Public Prosecutions which remained on foot. We shall a virtual courtroom is a satisfactory alternative is an informed about the timing of the case. Parties could be not perform the same function in was accused of failing to exercise have to await the outcome of these unknown and will preoccupy researchers for the next productive at their desk, whilst waiting. The Court also the same way as the jury or with proper prosecutorial discretion prior prosecutions; however, they certainly few years. Whether online hearings are a satisfactory conducted a ‘dry run’ before the hearing to ensure that the same advantages that the jury to indicting; the verdicts confirm raise for discussion the absurd substitute for in-person hearings depends upon the sound and visual quality was satisfactory.6 Research enjoys. All such appeals proceed on that the reasonable prospects of situation seeking to restrict the atmosphere created around the online experience for tells us that the space used for online appearances does the premise that the complainant was conviction test was satisfied. access of the Australian public to users. As Tait and Rossner assert, “[i]ntroducing monitors impact upon the user’s experience. assessed by the jury to be credible Perhaps the most egregious information available world wide and into the courtroom requires a reimagining of courtroom If a party feels isolated from the process then it is more and reliable. example of gutter journalism via the internet within Australia.
38 VBN VBN 39 One unit (or pod) of an immersive news and views virtual court configuration prototype
likely that they will not perceive the process as fair. In order to replicate the court news and views news hearing experience as closely as possible and avoid a sense of online isolation, researchers from Australia, Canada and the US have developed a system designed to immerse the participants in the online hearing. Rather than having all court participants appear on the one screen, these immersive court hearing pods feature three screens with a camera attached to each screen. For example, the judge, prosecutor, defence (with the defendant in the same room) and witness will be able to connect from their unit to each other in order to conduct court business. A custom-made and secure ‘Zoom meeting’-style panel will ensure that the court maintains control. Laptops, iPads or iPhones can be used to message, share documents and manage files. These pods have been tested under lab conditions and will be showcased at the Monash City Chambers early next year. The challenges of resuming chosen to go online for jury trials, solution, the chosen venues have to a healthy democracy. Research should become part of the ‘new *Associate Professor Jacqui Horan Victoria has introduced a raft of not always been ideal. For example, shows that juries are an effective normal’ post-pandemic. As long as is a courtroom communication jury trials new jury trial processes to deal in England and Scotland, they are PR machine for the courts;10 we reflect, systematically study and researcher and academic member Jury trials did grind to a halt in with pandemic conditions. The running jury trials in entertainment first-hand experience of jury duty learn from this unique experience, of the Victorian Bar. She leads the 2020 as they are a physically Victorian Juries Commission Office venues like cinema complexes. Juror plays an important role in the the justice system is likely to emerge Future Courts Research Platform intense experience which cannot has sensibly undertaken some of expectations of being entertained community’s positive perception better for it. at Monash University. be sustained during a pandemic. the jury panel induction processes with popcorn and a riveting court- of their justice system. 1 B. Kwan and L. Evlin, ‘Australia’s courts 5 I. Eagly, ‘Remote Adjudication in Social distance issues begin in the online to alleviate the need for up room drama that rivals A Few Good keep the justice system going during Immigration’ 109(4) Northwestern jury selection process and persist to 200 citizens to attend in person. Men does not sit well with the gravity So, what will our justice coronavirus pandemic.’ (9 May 2020) University Law Review, 933. through to verdict. Assembling the Nevertheless up to 45 citizens may of the subject matter of a criminal SBS News; The COVID-19 Omnibus system look like (Emergency Measures) Bill 2020, placed 6 M. Rossner and M. McCurdy, jury is problematic. The Institute of still be required to attend for one jury trial. post-pandemic? before the Victorian Parliament on 23 ‘Implementing Video hearings Transport Studies determined that empanelment. The courts will foot The above examples of the March 2020, encourage the use remote (Party-to-State) - A Process Evaluation’, In 2020, we were plunged into a new Independent report for the UK Ministry pre COVID-19, 220,000 Melburnians the bill for the cost of empanelled challenges facing the resumption of evidence; see for example Part 3.14 world of virtual justice. This period where open justice has been broadened of Justice (2018). took public transport to the CBD jurors avoiding public transport jury trials highlight how problematic of unprecedented technological to include video and telephone links. 7 G. Currie, ‘Long Term Impacts of every weekday. With social distancing and requiring pandemic-friendly and expensive it is for the justice Covid-19 on Travel in Melbourne’ innovation will place litigators 2 D. Tait and M. Rossner, ‘Courts are rules in place, this will have to reduce lunch options. system to persist with running jury moving to video during coronavirus, (2 October 2020), Institute of Transport in an ideal position to intimately Studies, Monash University. to 22,000 commuters.7 Car travel is Victorian jury deliberation trials during a pandemic. However, but research shows it’s hard to get a understand the benefits and fair trial remotely.’ The Conversation 8 See for example Kahil v R [2020] still possible but it is unreasonable rooms are too small to run socially- jury trials must remain a firm feature photograph courtesy of by v. tay. disadvantages that technology (8 April 2020). NSWCCA 56. to expect that every citizen can distanced deliberations. This has of our justice system, despite their has to offer the courts. Whilst the 3 D. Tait, B. McKimmie, R. Sarre, D. Jones, afford the cost of a taxi/uber or the forced the courts to use two courts hefty price tag. The low take-up of 9 An online jury empanelment conducted intensity of this experience is not L. McDonald and K. Gelb, ‘Towards in Texas, US in May 2020 can be cost of city car parking. Some jury per jury trial; the second is converted the offer to defendants to have their a Distributed Courtroom’ (2017). ideal, the technological innovation accessed HERE. trials in NSW have had to be aborted into a jury deliberation room. Other trial heard more quickly by a judge that the courts are introducing 4 S. Diamond, E. Bowman, M. Wong, M. 10 J. Delahunty, N. Brewer, J. Clough, due to juror and counsel fear over jurisdictions, such as the UK, have suggests that a jury trial is integral to Patton, Efficiency and Cost: The Impact promises to remove many of the J. Horan, J. Ogloff, D. Tait, J. Pratley et contracting COVID-19.8 resorted to pop-up courts in order to defendants’ perceptions of a fair trial. of Videoconferenced Hearings on Bail al, Practices, Policies and Procedures access to justice barriers that have Decisions 100 J. Crim. L. & Criminology In Texas, civil jury trials are being provide enough venues for all of their Furthermore, citizen participation in that Influence Juror Satisfaction in plagued our system for decades. 869 (2010). Australia (2008) Australian Institute of run online.9 Whilst we have not judges to sit. Whilst this is a sensible the legal system is considered central Thoughtfully applied online justice Criminology; J. Horan ‘Perceptions of the Civil Jury System’ (2005) 31 MULR 120.
40 VBN VBN 41 that it’s all about that “old fashioned VBN: Do you think Crown prosecutors The Victorian State Government LM: I have spoken to women An interview with and patriarchal” concept of courtesy. How do you could play a more active role in made a point of saying it will stand barristers who found that. There regulate courtesy? preparing witnesses for the trauma with victims. It should put its money has been a push for remote LM: Shouting and thumping the Bar table and interrupting of onslaught cross-examination? where its mouth is. witness facilities, but I feel like the and talking down to people and speaking like a LM: Crown prosecutors need to take complainant is removed from the Louise Milligan VBN: You cite criminologist Michael cantankerous school master to a disobedient girl is easy responsibility and intervene when process in that sense and infantilised. Salter as saying witnesses don’t want to avoid. A style has been adopted and developed by an improper question is asked. This The accused has so much power if restorative justice; only nice white JUSTIN WHEELAHAN AND TEMPLE SAVILLE some barristers over a long time which is considered also includes the defence counsel’s well-resourced with a silk, junior middle class people who like sitting acceptable which would not be acceptable in any other tone. Crown prosecutors sometimes and solicitor sitting there and taking in a room with their clip boards are work environment—except maybe in Parliament. But in take a low-profile approach. The notes—and the complainant is in the ouise Milligan’s second book Witness, interested in it. How can restorative Parliament you are not going to be asked about the worst complainant gets bullied. Judges need facility, with none of that. If that is published by Hachette, is the culmination justice be improved? thing that has happened to you, like, for example, being to take more of a role in enforcing the the complainant’s choice, fine. The of five years’ work about complainants and LM: I don’t know. I think there is a raped as a child. In the quest to achieve a reasonable doubt rule against improper questioning, and other option is to take the accused victims of sexual abuse. Louise obviously design flaw. There are some cases in a jury, complainants are often thrown under the bus. complainants ought to have a lawyer out, there are jury directions about a has great affection for the barristers she where it might work, but it is a bit in court. If the witnesses’ human witness not being present—the same interviewed in writing the book, while at the VBN: Can the concept of courtesy be uncoupled from patriarchy? problematic. We fought hard to make rights are being affected, or s 41 of directions could be same time recognising there are general criticisms and LM: I’m not saying all females are lovely and males are people take these crimes seriously. the Evidence Act is being breached, given if the accused conversations that need to be had. While the author thinks table thumpers, but 30 per cent of the Victorian Bar is To then make it restorative can L then there is someone there to make is not present. I don’t the police have come a long way as an institution, in terms made up of women, the number of silks is tiny, and NSW trivialise it somewhat. Most victims sure the person gets some fairness. see why that option of a more trauma-informed response and introducing more is worse—23 per cent are women. NSW has twice as that I speak to are horrified by their There ought to be more professional can’t be considered empathy into their approach, she thinks there is room for many men aged over 50 than any women. Of course, in perpetrator and don’t want to sit education of barristers, of judges. I and some of the improvement at the Bar. that environment, patriarchal notions and sexism become there and have a chat with them. interviewed Judge Meryl Sexton of the barristers I spoke to somewhat unavoidable. Maybe it should be an option if that VBN: It goes without saying that you have challenged County Court for my book, who has for Witness agreed. is what someone wants. But I don’t barristers to think about cross-examination techniques. VBN: A tension which emerges from the book is between the talked to her judicial colleagues about think it is a fix-all panacea. How much of your criticism, do you think, is based on the principle ‘innocent until proven guilty’ (beyond reasonable this. It seems to me that there needs to inherent nature of the system, as opposed to a barrister’s doubt) and the need to ensure that victims do not emerge be a bit more of that. VBN: Research by Kathryn Daly individual style? from the process worse off than when they went in. A indicates the ‘justice needs’ of VBN: How beneficial do you think LM: It is a cop out to say it’s the nature of system. It is not particular issue is that our criminal justice system does not victims are participation, voice, having separate legal representation good enough to say, “It is not a perfect system but it is start with the assumption that a complainant is a victim. That validation, vindication and for witnesses would be? the only one we have—you come up with a better one.” would reverse the onus of proof. What thoughts do you have offender accountability. LM: Representation is not to coach the The quest to ensure that someone gets the best possible about how a victim can be treated humanely, in a manner Something like only 3 per cent witness, just to tell the witness what to defence should not be re-traumatising. The presumption which does not threaten protections for the accused? of complaints results in a expect. A Crown prosecutor has said of innocence doesn’t have to mean bullying. A lot goes to LM: It is absolutely not about reasonable doubt shopping, conviction. Isn’t restorative that it is in the interest of a witness to style. Having observed the system for long time, there are but about the methods you have to employ. It is how you justice a lateral option to the cry, as it might invoke more empathy. different ways to skin a cat, different ways to approach do it. Like standing over a witness yelling, appealing to conventional trial process if a What do they have to go through to it. I have seen barristers achieve their forensic purpose a magistrate when the witness says it is not a yes or no witness is not going to get their get to that point? In my case, I had without bullying in transcript and in real life. You don’t answer—loudly demanding that the question cannot ‘justice needs’ out of a trial? Jack Rush QC and Peter Morrissey QC, have to tear apart a witness to create reasonable doubt in possibly be answered in any other way than a ‘yes’ or a LM: The conventional process is so I felt so well armed to go into that a jury. A lot goes to style. ‘no’, and just old school patriarchal sexist language that is broken. I feel that is a cop out process. It breaks my heart to think designed to humiliate the witness. It is not fair and should for the conventional process. VBN: As barristers, whether for prosecution or the defence, of those people who are completely not happen. we have case concepts; we try and ask questions that elicit alone. I have a law degree, and had VBN: Court rooms produce, facts in a way that will support the narrative we want to VBN: Do you believe witnesses/complainants have a a publisher and the ABC behind me. accommodate, and reflect a make in our closing address. Do you think there are parallels comprehensive understanding of the legal process such that It’s distressing to think of these poor hierarchy—but web hearings to the way barristers build a narrative like this and the way they can take this into account when deciding if they would people who don’t have any of this. are collapsing that hierarchy journalists build a story? like to make a statement to police? and flattening it out. You can VBN: Members of the Victorian Bar LM: That’s why barristers and journalists get along so well. LM: No. That is another problem; that they have this always reduce the volume of a are often called upon to give advice to We are similar creatures—we both build narrative and misapprehension that the state is acting for them. People belligerent opponent. Reducing witnesses by the OPP on a pro bono analyse things. The difference between barristers and say ‘my lawyer’ when talking about a Crown prosecutor. a barrister’s imposing bodily basis when a witness is at risk of journalists is that I have never spoken to anyone like I was That is a failing—not educating people about that. This gravitas to a small face has self-incrimination. How should legal spoken to as a witness. I would never treat anyone like that. goes to teaching civics in school. People who are abused a civilising effect on court representation for witnesses to alleged I conduct robust interviews and ask hard questions—but I are often set on a life trajectory which is damaging. By advocacy. Gender and voice sexual crimes be funded? do not treat those I interview with disdain. the time they get to court they are the perfect type of projection is less relevant—what LM: Good question. Probably person for a defence counsel to tear to shreds. I often matters is the substance of what is VBN: You quote Felicity Gerry that “achieving best evidence above my pay grade. That will be a hear barristers talking down their nose about people not being said. What feedback have you is good language. Dignity and respect is good language.” And stumbling block because it is anytime understanding the system. got about advocacy during COVID? you ask the government for money.
42 VBN VBN 43 news and views
It was by no means anything that would warrant a formal ... a definition of bullying was read Rethinking Culture in complaint. It didn’t stop me doing what I was there to do. out. A barrister behind me remarked But it was discourteous and it was unpleasant. news and views news There are those who believe that this kind of conduct is to his companion, “That’s in our job the Legal Profession not only something to be aimed for but also necessary to description, isn’t it?” I’d like to think he the proper fulfilment of one’s role as a barrister. I recall was joking; I don’t think he was. KYLIE WESTON-SCHEUBER a few years ago attending a CPD on bullying at the Bar where a definition of bullying was read out. A barrister Her Honour noted that some barristers who had behind me remarked to his companion, “That’s in our job previously blustered their way into the courtroom n recent times, there has been much more discussion than description, isn’t it?” I’d like to think he was joking; I don’t surrounded by minions carrying their books now previously about judicial bullying and bullying within the think he was. struggled to navigate the technology that allows them to legal profession. The Victorian Bar has a policy against There is absolutely no need for an advocate to bully, appear virtually, with her Honour needing to remind them bullying. CPDs have been presented about bullying hector or be rude, in court or out of it. Being firm, even that they are “on mute” while staring up their nostrils as and heads of jurisdiction have made statements about admonishing a witness to listen to the question, of they attempt to adapt to the digital environment.3 its unacceptability.1 course will be required from time to time. But unbridled Kathleen Foley has also commented upon the Appellate courts have made comment on the inappropriateness aggression or rudeness is not necessary; nor, most of the “equalising” effect of virtual advocacy, and the fact that of judicial bullying and threatening or insulting conduct by time, is it helpful. physical presence becomes irrelevant when an advocate trial judges, which in some cases has formed the basis for Adopting an aggressive stance with an opponent out of appears virtually.4 successful appeals.2 court, in my view, is never acceptable. There is absolutely The transition to virtual court appearances has an It is the kind of conduct which, I suspect, would not have I no need for it. impact not only inside the courtroom but also outside been commented on a decade or so ago, by an appellate court And there is a real reason for raising this as an issue. it. Standover tactics, sledging and rudeness to your or otherwise. It is coming to be more frequently scrutinised as Facing that kind of behaviour is at best unpleasant, and opponent don’t work when you’re not sitting beside them more attention is paid to the concept of judicial bullying and at worst damaging. It is, I suspect, a reason behind many at the Bar table. bullying within the legal profession generally. decisions made to leave the legal profession. Depending on I wonder whether COVID-19 and the changes that it While this raising of awareness of bullying in the profession the area you practise in, and how frequently you encounter has brought about will produce a long-term change in the is to be applauded, there needs, in my view, to be a broader this type of behaviour, it can lead a barrister or solicitor to way that we think about effective advocacy and culture in discussion about behaviour and demeanour generally, what dread going to work. The ways in which some barristers the legal profession more generally. I find it interesting to constitutes acceptable conduct, and indeed what should be deal with each other would not be tolerated in any other see the contrast in views between those who quite enjoy considered praiseworthy, in our profession. workplace. And I am not only talking about behaviour that the new advocacy for its equalising effects and those who For all the recent discussion about bullying, it remains squarely falls within the definition of “bullying” but also yearn for a return to face-to-face advocacy. the case that aggression and rudeness are commonly general unpleasantness and aggression that nobody wants Like everyone else, I look forward to the end of held up as de rigeur in the legal profession. to have to deal with in the workplace. COVID-19. What I would hope to see, however, is a Unfortunately, I believe that this leads some I am by no means suggesting that all or even most continuing discussion about the ways to be an effective advocates to consider that an aggressive style of members of the legal profession engage in behaviour of lawyer, and more importantly what that doesn’t need to cross-examination is what they should aim for this kind. There are many genuine, thoughtful and kind involve. Kindness, empathy, consideration for others and as a general standard, rather than realising that barristers, solicitors and judges who do their jobs day in and the willingness to listen are not only possible within our some of the most effective cross-examination is day out without engaging in unpleasant behaviour. They are profession, but are also desirable qualities to which we done when the witness does not even realise firm and forthright when they need to be, but they don’t use should all aspire. that the answer they have given is damaging aggression as a tactic and they are never rude. to their case. Justice Hollingworth recently spoke of the change 1 For example, Victorian Bar 3 The Honourable Justice The behaviour and demeanour that I am CPD on “Judicial Bullying”, Elizabeth Hollingworth, brought about to courtroom appearances talking about extend well beyond advocacy, 24 Feb 2020. Victorian Bar CPD in by COVID-19 and the onset of Session, “Could I just to written communication between solicitors 2 For example, Adacot v virtual appearances. finish the question? – View and to communications between opposing Sowle [2020] FamCAFC from the Bench, Bar and 215; Lysons & Lysons and parties. I not infrequently read correspondence solicitors on ‘Female Judges, Anor [2019] FamCAFC 29; Interrupted’.” between solicitors that could be described as Stradford & Stradford [2019] “belittling” or “insulting”. Members of the Bar FamCAFC 25; Cook v The 4 Kathleen Foley, “Gender and Queen [2016] VSCA 174. the Virtual Workplace during are all too familiar with counsel who invite COVID-19”, GenderIT.org, them for a “chat” before court only to attempt a 14 August 2020. “standover” involving belittling and derision of the opponent’s case. I recall some years ago being opposed to senior counsel (now a member of the judiciary) who, when I arrived every day in court and issued a pleasant greeting, would barely throw a glance in my direction. That didn’t constitute bullying.
44 VBN VBN 45 news and views
› Norman South Pty Ltd & Anor v » Wasted costs of repeated Before drafting pleadings: Barristers are not immune da Silva (No 2) [2012] VSC 622. amendments to complex » make sure you understand the Allegations of fraudulent email pleadings, following successful necessary elements of the cause news and views news abandoned on day three of the strike-out applications of action and what needs to be from personal cost orders trial when arguably should » Costs of party joined without proved have been obvious based authority. For example: » understand the difference on evidence earlier. No orders › Bray & Anoth v Dye & Anor between a hopeless case and a HEATHER HIBBERD* made. (no.2) [2010] VSC 152. case that is arguable but weak › Apollo 169 Management Pty Ltd One of two plaintiffs gave » carefully review all available v Pinefield Nominees Pty Ltd no instructions to issue evidence, particularly where ersonal or non-party cost orders against While solicitors usually wear the brunt of personal cost (No. 2) [2010] VSC2010] VSC75. proceedings. Personal cost there are allegations of fraud and barristers have been more prevalent since order applications barristers are also susceptible to them. Proceeded to trial knowing the order made. advise your instructing solicitor in the introduction of the Civil Procedure Act pleading was false and there » Costs of additional parties joined writing of the evidence necessary 2010 (Vic). As a statutory remedy for breach Circumstances giving rise to personal cost was no evidence to support it. to litigation unnecessarily or not to prove the cause of action or of overarching obligations they do not attract advocates order applications Personal cost orders made. all necessary parties joined. For defence immunity and as such pose a significant risk to barristers. P Set out below are circumstances where personal cost » Wasted costs where barrister did example: » check details of all the potential Overarching obligations – a refresher applications have been made against barristers, and in not disclose reports or material › Parents joined to a family law parties in the proceeding some instances resulted in orders being made. facts. For example: proceeding when a subpoena including ABN and ACN to ensure The Civil Procedure Act sets up a hierarchy of duties and » Cases that arguably had no prospects of success. For › Hudspeth v Scholastic Cleaning would have been sufficient the right parties are joined and no obligations owed by practitioners. The duty to the court example: and Consultancy Services Pty › One creditor left off a statutory allegations can be made later that is paramount (section 16). The overarching obligations › Re Fanning [No 2] [2014] VSC 370. Lack of Ltd & Ors (No. 6) [2013] VSC demand resulting in the costs were wasted for having the set out in sections 16 to 26 prevail over any contractual, evidence as to payment for land 40 years earlier. 159. Failure to disclose earlier statutory demand being wrong parties in the proceeding. legal or other obligations (section 12). If a practitioner is In the circumstances it was not a hopeless case draft of expert evidence report. set aside. faced with instructions from a client that are inconsistent When accepting a brief after as oral evidence was adduced and not necessarily Personal cost orders made. » Applications where it is alleged with the overarching obligations the practitioner cannot proceedings have commenced: inconsistent with no written evidence. No orders › Orpen v Tarantello &Ors [2009] that the barrister represented contravene, nor allow or cause the client to contravene » review all the pleadings, assess made. VSC 143 failure to make more than one party in a the Act (sections 13 and 14). the evidence and consider the › Gibb v Gibb [2015] VSC 35. An application for disclosure of material facts proceeding, and where a conflict The overarching purpose of the Act is the just, efficient, prospects of success for all causes provision out of an estate without first asking in an ex parte application. between the clients became timely and cost-effective resolution of civil disputes. The of action or defences as soon as the trustee. No basis for the proceeding. Judge Personal cost order made. apparent mid-trial causing an overarching obligations apply to all parties, practitioners, possible. Don’t assume previous indicated personal cost orders warranted. adjournment and delay. insurers, funders and expert witnesses. They are to: drafting was correct and don’t › Re Manlio (No 2) [2016] VSC 130. Inconsistency » Wasted costs caused by the » act honestly at all times (section 17) leave it to the last minute to in opening and closing addresses and the barrister making prolix, repetitive » only pursue claims and defences that have a proper consider these issues. client’s evidence and the fact that the client was or untenable submissions. basis, on the factual and legal material available at the » understand the difference unsuccessful on all claims was not enough for time (section 18) between a hopeless case and a personal cost orders. The judge did refer the Lessons » only take steps reasonably believed to be necessary to case that is arguable but weak solicitor and barrister to the Legal Services Many of the allegations resolve the dispute (section 19) » advise your instructing solicitor Commissioner for unsatisfactory professional relate to the appropriate » co-operate with other parties (section 20) as soon as possible on your conduct. drafting of causes of action » not mislead and deceive (section 21) assessment of likely success of » Wasted costs where excessive or defences, or the ability of » use reasonable endeavours to resolve a dispute by the case and whether pleadings amounts of material was the party to prove what was agreement (section 22) or narrow issues (section 23) need to be amended or causes of included in court books. For pleaded with appropriate » use reasonable endeavours to ensure costs are action or defences abandoned. example: evidence. Avoiding these reasonable and proportionate to the complexity or The longer you wait the more › Yara Australia Pty Ltd mistakes is obvious in importance of the issues and the amount in dispute costs may be wasted by the other & Ors v Oswal [2013] theory. It involves a good (section 24) side in preparing their case VSCA 337. Security for understanding of law in the » minimise delay (section 25) » spend time with the client testing costs application with relevant area of practice so » disclose ‘critical documents’ at the earliest reasonable their recollections and evidence voluminous court book that the pleadings are drafted time and on a continuous basis after becoming aware where your client’s case depends materials. Order for correctly, and the evidence used of their existence (section 26). on their oral evidence, so there personal costs made. to support the pleadings arguably The court has powers to award costs against practitioners are no surprises in court. » Wasted costs where causes achieve that aim. Attention to detail personally for: *Heather Hibberd is the Chief Risk of action were pleaded but and good communication with clients » contravening an overarching obligation (section 29) Manager of the Legal Practitioners’ then either abandoned during and instructing solicitors are also » failing to comply with discovery obligations or Liability Committee. the trial or no evidence was adduced essential. Set out below are some engaging in conduct intended to delay, frustrate or supporting the cause of action during trial. For high-level things to consider. avoid discovery of discoverable documents (section 56). example:
46 VBN VBN 47 news and views
Decriminalising sex It was coined by activist Carol Leigh Police Affairs report could not As a result of this stigmatisation, in her essay “Inventing Sex Work”, clearly identify any reliable data a fear of being “outed” as a sex written in the late 1970s. It seeks to that demonstrated a positive benefit worker is a real concern for many news and views news define the work done and not the of this legislation and specifically in the industry. This fear is not work in Victoria 6 status of the individual. noted that female sex workers felt unfounded as it is entrenched in our There are three main legislative the criminalisation had affected laws and processes. BY FELICITY GERRY, SUZAN GENCAY models for sex work. them negatively.15 This model seeks Stigma has been identified as a First, criminalisation, where there to simultaneously save, protect and major contributor to the exploitation AND SIMONE CURMI-BLACKWELL are a range of offences that perceive punish sex workers and suffers from and intimidation of sex workers. sex workers as perpetrators of a an over complexity in operation. Stigma is perpetuated in legal he Victorian government has just received crime. No Australian state operates frameworks which seek to regulate a landmark review into the state’s sex work under this model. Sex Work and Morality and criminalise aspects and forms laws, which has not yet been made public.1 Second, legislation, which is Sex work is an industry that has of sex work. Decriminalisation is a We made a submission2 with a focus on the the legalisation of some forms of continued to operate even when significant acknowledgement that sex decriminalisation of sex work, including sex work and not others. This can completely criminalised. However, work is work and the rights of sex raising awareness of Australia’s commitment include regulatory and industry the suggestion that sex work is workers are human rights. to non-punishment of trafficked persons. In Victoria, sex work is conditions, such as a licensing or immoral and that the law should The morality of sex work has been regulated under a legalised model, which means that sex work registration system and zoning for reflect this by making it criminal explored in several Victorian cases. is only legal if it takes place within the licensing and registration street work. Any legislative model seems contrary to the current Most notably AG v Harris18 and framework.3 Under that framework, an adult may legally engage in which criminalises some forms of approach of Victorian society. R v Hakopian19 allow for a rape Tsex work provided they are licensed and unless they are engaging sex work but not others will mean It is arguable that in modern victim’s sexual experience to in street sex work.4 that some workers lack protection Victoria, sex work does not reach be relevant to sentencing The decriminalisation of sex work is typically understood to and/or are punished when seeking the level of conduct that ought to be an offender, only if the mean the removal of criminal laws relating to consensual adult sex assistance. Victoria, Western criminalised at all. Victoria is a state victim was a sex worker. work and the regulation of sex work through standard business Australia,7 Tasmania,8 Queensland,9 with a human rights charter and it is laws. Our submission sought to assist in distinguishing between the Australian Capital Territory10 well documented that controlling or sex work and sex trafficking. From the research conducted for that and South Australia11 operate under criminalising adult consensual sexual submission, we concluded that criminalisation creates this model. relationships, including sex work, discrimination and fear of being “outed” if a South Australia’s laws are the affects a person’s independence, person reports issues, particularly in civil, family, most antiquated sex work laws in privacy and control over their immigration or criminal complaints. Australia. Private sex work is legal; body. Criminalising sex work can Decriminalisation can contribute to all however, to occupy or frequent lead—and has led—to exploitation, sex workers feeling safe in contacting law premises that are frequented stigmatisation and discrimination enforcement to report crimes, instances of by “reputed thieves, prostitutes, from law enforcement, clients and abuse and human trafficking. The research also persons without lawful means of society in general. showed that decriminalisation of sex work leads support or persons of notoriously The stigmatisation of sex work is to better health outcomes as sex workers maintain good health bad character” is an offence.12 demonstrative of our community’s practices with a low level of STI/HIV infection.5 Decriminalisation There are also strict restrictions on appraisal of sexuality and sex acts also leads to improved workplace safety regulations, social equity “reports of immorality” (sex work in a hierarchical system,16 for which and reduced discrimination. advertising).13 Western Australian the consensual exchange of sexual This article summarises the key findings and legislation also makes reference services for money or reward is recommendations contained in our submission and expands to outdated language in relation to ranked low. As American cultural on the background and reasons for our current legislation. people who are deemed a “prostitute anthropologist Gayle Rubin wrote in or of known immoral character”.14 From Gender to Sexuality: What is sex work? And third, the ‘Nordic/Swedish As sexual behaviours or occupations Sex work is the consensual provision from one adult to another Model’, which is based on the fall lower on the scale, the individuals of sexual services, in return for payment or reward. Sex work is 1998 Swedish legislation which who practise them are subjected not human trafficking. If someone is trafficked for the purposes criminalises the purchase of sex to a presumption of mental illness, of sex slavery, this is known as ‘sex trafficking’ but is not sex but legalises the selling of sex and disreputability, criminality, restricted work as it is non-consensual and denies victims autonomy. attempts to eradicate sex work social and physical mobility, loss of The term ‘prostitute’ is obsolete and only used when directly by targeting the demand. A 2004 institutional support, and economic quoting other material. The term ‘sex work’ is standard. Norwegian Ministry of Justice and sanctions.17
VBN 49 48 VBN news and views
Victoria is well placed to move towards Sex work is decriminalised in New alter Australia’s obligations to combat » and the Nordic Model, that is, moderated for a particular group of a decriminalised model. Zealand. The Prostitution Reform Act human trafficking. Decriminalisation decriminalising people who sell people, no matter their profession. 2003 (NZ) aims to: is a necessary step in improving sex and provide comprehensive Victoria has reached a point where news and views news Harris continues to be referred barriers (e.g., migration and language) Australia’s implementation of social support programs for those sex work does not easily fall into the decriminalise prostitution (while not to in the Victorian Sentencing and socially constructed barriers (e.g., international law in order to prevent, who want to exit the industry. category of criminalisation, whereas endorsing or morally sanctioning Manual.20 The Manual also notes stigma and criminalisation of sex prosecute and protect victims of Dempsey contends that the current the criminalisation of those who prostitution or its use); create a the Court of Appeal decision of work, discrimination against migrants, human trafficking. This has a flow efforts of US jurisdictions has been traffic and exploit sex workers is framework to safeguard the human Daly, which clarified that sex gender discrimination) to accessing on effect: it is easier to identify inadequate.34 We contend for a capable of being a focus. rights of sex workers and protect them workers are vulnerable victims of a range of resources.”24 These barriers exploitative brothel managers; and separation of approaches to sex work In addition, best practice is a from exploitation; promote the welfare sexual offending. In that decision, can alienate migrant workers and to identify when trafficked persons and human trafficking. Autonomous harm reduction approach which and occupational health and safety of Justice Bongiorno agreed with the make them more vulnerable to appear as victims at various levels and consensual sexual acts, including comes with the decriminalisation of sex workers; contribute to public health; sentencing judge’s remarks that exploitation. in chains of command.31 In her 2014 for payment, are socially and sex work combined with legislative and prohibit the use of prostitution of “the degrading and emotionally and The assumption that sex workers article on decriminalising victims of morally acceptable and should not protection for trafficked persons persons under 18 years of age. 29 physically traumatic experience need to be protected because of their sex trafficking,32 Michelle Madden be the subject of law or regulation. who commit other crimes. The which [the victim] had been through choice of work does not empower the A study in 2007 was conducted to Dempsey has observed in the US The exploitation of people through decriminalisation of sex work is was not to be discounted in any people who work in the industry, but review the impacts of the legislative context that jurisdictions continue human trafficking (including slavery a human rights issue and it is our way by virtue of her activities as further prevents them from engaging change and 90 per cent of sex to treat sex trafficking victims as and slavery-like practices) should view, based on the research, that a prostitute.”21 meaningfully in social discourse and workers were aware that they criminals. Dempsey contends that be recognised in laws, policies and the rights of workers should not Due to social stigma, sex workers advocacy. If the goal is to identify had increased employment, OHS the criminal law must decriminalise procedures that correctly identify be diminished or restricted by any are vulnerable to exploitation and trafficked persons and ensure that and legal rights under the new victims of sex trafficking. She considers perpetrators and victims, regardless legalised model. corruption from law enforcement, sex workers are safe and free from legislation. Over half of the survey the strengths and weaknesses of four of their occupation. The move is Sex work must be decriminalised employers, clients and members of persecution, stigma, discrimination participants who had been sex methods of decriminalising victims to an acceptance that trafficked in Victoria. This means that the the community. Sex workers who and exploitation, then a harm workers prior to decriminalisation of sex trafficking:33 persons lack criminal responsibility, Sex Work Act and Regulations are not paid risk being outed if reduction approach, through the reported that police attitudes had » safe harbour laws which call for even if they consent, because they must be repealed entirely. The they commence legal proceedings. dignity and respect that flows from a changed for the better.30 the protection of children; lacked autonomy when they acted to decriminalisation model similar Employers who mistreat sex workers human rights perspective rather than Victoria is well placed to move » law enforcement officials and/ commit crime through the means and to that of New Zealand must be similarly may not fear retribution due a criminal justice approach to sex towards a decriminalised model. or prosecutors identifying victims purposes of others. implemented. Any criminal record to workers not feeling confident in workers, ought to be preferred. This The courts, government, Victoria and exercising their discretion to related to the previous sex work defending their workplace rights and underlying principle is important Police and community legal services decline to prosecute them; Conclusion and some legislation or associated regulations reinforcing employer responsibilities. when considering the legislative and community-based organisations » ‘[d]ecriminalise everyone involved in recommendations must be removed under a spent If sex workers are assaulted or raped, models for sex work and how sex have already, at times, worked commercial sex, including the seller, The core human rights commitment conviction scheme.35 they face the possible consequence of workers can determine the regulation together in an attempt to mitigate buyer, pimp, brothel, owner etc.’; to dignity and respect cannot be having to admit to working “illegally” for their industry, outside of criminal the effects of criminalisation and to (for example, street sex work and justice responses. address health and safety issues for 1 theconversation.com/will-victoria-be- 14 Criminal Code Act Compilation Act 26 hrw.org/news/2019/08/07/why-sex- the-first-place-in-the-world-to-fully- 1913 (WA), section 191(1)(a). work-should-be-decriminalized illegal brothels). In addition, knowing sex workers. It was the initiative of decriminalise-sex-work-146751 15 Norwegian Ministry of Justice and 27 ohchr.org/en/professionalinterest/ that someone is a sex worker can Decriminalisation Magistrate Popovic in 2003 to start 2 The authors would like to acknowledge Police Affairs (2004) Purchasing pages/cedaw.aspx be used against them as blackmail, ‘Decriminalisation’ is the removal what was formally known as the their co-authors for the submission Sexual Services in Sweden and the 28 parliament.nsw.gov.au/ladocs/ to Fiona Patten MP: Veronica Drago, Netherlands, 52-53. inquiries/1703/Government%20 including in family violence or family of all criminal penalties and most, if Tuesday Afternoon List, informally Martin Radzaj, Ffyona Livingstone Clark 16 Rubin GS, From Gender to Sexuality, Response%20-%20Inquiry%20into%20 law proceedings. not all, restrictions around sex work. as the Sex Worker List. Operationally, and Robert Richter QC. citeseerx.ist.psu.edu/viewdoc/download the%20Regulation%20of%20Brothels. Discrimination in general against Leading human rights organisations it involved proactive steps by the 3 Sex Work Act 1994 (Vic) and Sex Work ?doi=10.1.1.462.7005&rep=rep1&type=p pdf Regulations 2016 (Vic). df at 150. 29 New Zealand Government, Report of 25 sex work remains common, with including Amnesty International, court, police and organisations alike 4 Sex Work Act 1994 (Vic), section 13. 17 Ibid 151 the Prostitution Law Review Committee companies like PayPal22 and Airbnb23 Human Rights Watch26 and the to assist sex workers in accessing 5 afao.org.au/article/sex-work-legislation- 18 Unreported, SCV, Court of Criminal on the Operation of the Prostitution refusing to be linked with the United Nations27 support the health and community workers, and stands-way-australias-commitments- Appeal, Strake, Crockett and Gray JJ, 11 Reform Act 2003, May 2008, 13 decriminalisation-sex-workers-health- Aug 1981. 30 otago.ac.nz/christchurch/otago018607. industry in any way, even if they are decriminalisation of sex work support in the broader sense and, of safety-rights/ 19 Unreported, SCV, Court of Criminal pdf - 13 to 15. operating legally. as the best practice approach. course, provided parties with access 6 Whores and Other Feminists edited by Appeal, Crockett, Southwell and Teague 31 sbs.com.au/news/dateline/sex- Sex workers who identify as In 2019, the Northern Territory to dedicated legal representation. Jill Nagle, Chapter 24 JJ, 11 Dec 1991. trafficking-s-tragic-paradox-when- 7 Prostitution Act 2000 (WA) and 20 Victorian Sentencing Manual, 329 - victims-become-perpetrators members of other marginalised decriminalised sex work (see The decriminalisation of sex work Criminal Code Act Compilation Act 1913 24.2.1 – Harm 32 Dempsey ‘Decriminalizing Victims of groups, such as Aboriginal and Torres Sex Industry Act 2019 (NT)). New can also be integral to Australia’s (WA). 21 DPP v Daly [2004] VSCA 63 at [18]. Sex Trafficking’ (2015) 52 American Strait Islander people, members of South Wales also operates under a commitments to non-punishment 8 Sex Industry Offences Act 2005 (Tas). 22 BACKPAGE.COM, LLC, Plaintiff- Criminal Law Review 207. 9 Criminal Code 1899 and Prostitution Act Appellant, v. THOMAS J. DART, Sheriff 33 Ibid 223-229. the LGBTIQA+ community, culturally decriminalised model. In May 2016, in the context of human trafficking. 1999 (Qld). of Cook County, Illinois 34 Ibid 229. or linguistically diverse people and the NSW government announced Identifying trafficked persons is 10 Sex Work Act 1992 (ACT). 23 vice.com/en/article/gvzzkx/why- 35 We note that at the time of this article migrants, face further barriers. For that it continues “to support achievable through criminalisation of 11 Summary Offences Act 1953 (SA) and its-perfectly-legal-for-airbnb-to- being written the Spent Conviction the Criminal Law Consolidation Act discriminate-against-sex-workers Scheme Bill 2020 is being introduced example, for a migrant sex worker, decriminalisation of sex work as the traffickers and protection of victims, 1935 (SA). 24 aic.gov.au/sites/default/files/2020-05/ into the Victorian Parliament. “the identity markers of race, language best way of protecting sex workers including through non-punishment of 12 Summary Offences Act 1953 (SA), rpp131.pdf - 64 background, gender and being a sex and maintaining a more transparent trafficked persons who commit crime. section 21(1). 25 amnesty.org/download/Documents/ 13 Ibid section 35. POL4040612016ENGLISH.PDF worker combine to create structural sex work industry.”28 Decriminalisation of sex work does not
50 VBN VBN 51 news and views news and views news
How I saved
Part II
ANYONMOUS SC (DEFINITELY A SATIRE)
know what you’re thinking: The next few months were a little that was a quick turnaround. boring. I never did get my robes from From ruining the world in chambers, so I was appearing in court on the last issue of the Bar News, Webex from my living room, in my suit. to saving it only a few months Well, suit jacket anyway, because although later. However, I must confess I looked very carefully, there was no saving the world was easy. You can thank Practice Note stipulating that pants were me later. (Perhaps a private dinner at my mandatory. (Although one must remain place for me and some of my very special ever vigilant—standing up to reach over friends?) to grab a folder may have caused some IAnyway, as readers may recall, I to get a brief glimpse of my bike shorts; returned to Melbourne from the White not the lycra ones.) House in March, just as Scott from I quite liked the appearing-in-court- Marketing was pulling down the blinds from-home routine. Jump out of the and closing the borders. shower three minutes before court starts, Scotty had heard about my stint in put on a tie, shirt and jacket, and click Washington as an adviser to President a link. I also quite like indulging in the Donald J Trump, and obviously really background analysis of other people’s wanted to talk about it, because my phone private spaces—books on the shelves rang as soon as I turned off flight mode, (McGrath likes macrame, a lot!), strange on the tarmac at Tullamarine. He was a bit art on the walls (did someone actually gushy and excited. “Chris,” he said, (my choose to buy that?), and really ugly name’s not Chris) “How was he, really? ornaments (what is that lump of red Amazing? Tremendous? He’s a top bloke.” stuff? Was Flynn really that good with “Well,” I said, “he’s not as big as he looks. clay in kinder?). Not to mention cats And he leans forward a lot.” I couldn’t moving slowly across a keyboard, kids reveal too much. What happens in the yelling from another room—these private Oval Office stays in the OO. Unless it gets windows in people’s lives. published in the Bar News. I paid little attention to what was That’s when I did the strange noises, like happening in the USA. Frankly, I a plane taking off, and mumbled, “so..ry … wanted to put it all behind me. As ime … inister… aking up. …ater,” and hung members would appreciate, I was up. When would these world leaders leave embarrassed and felt a little guilty me alone? about supporting the President’s many
52 VBN VBN 53 news and views
confounding ideas: a wall to stop “Koh-lynn, can you hear me?” terms.” I couldn’t believe what I was and tell everyone he’s got it. Just a sex store. I told him to always have manifestation of God, and that Americans escaping to Canada, he said, very solemnly. seeing but he was actually writing don’t release the test results. Pretend a dictionary with him in court, and they are all immune too. annexing California to adjust voter “Mr President, I’m in the middle this stuff down, his tongue poking out they’re tax returns.” I hung up. if the judge used big words, to look It’s not over yet. A few days after news and views news balances, and getting a KFC for the of a court hearing, I can’t talk now. of the corner of his mouth. A couple of days later a handsome them up right there on the spot. the election, he facetimed me to White House lawn (“those security Can I call you back later?” “Number three—“ ‘doctor’ stood outside the Walter “’Demurrer.’ Your Honour, how do thank me; he was on his way to guys will love it”), and so on. “I got the CIA to hack into your “Not so fast!” he commanded, very Reid Memorial Hospital giving a you spell that?”(I apologise to the play golf in the back of a limo. Anyway, Biden got the nomination. zoom thingy, Koh-lynn, it’s the only Presidentially. I paused. press conference. The POTUS badge judicial officers of Georgia and He seemed to think that it was Despite shuffling around and way we could reach you. It’s very “Number three… Mr President, on his white coat was enormous Wisconsin, but my duty is to the court all going very well. I told him it stumbling over his words, he important. Who was that guy you have to catch the virus.” This was —the costume department had in Australia.) wasn’t. I told him that everyone seemed to be up in the polls. in purple?” my masterstroke, or so I thought. over-reached. He was semi-circled Trump offended Fox and Murdoch was lying to him, including Rudy All was looking good. “The judge, Mr President. I’ve got It would literally take the wind out by several other white coats. They so badly they deserted him. He told and his own children, and he So there I was in late September, to go.” of his campaign (literally ‘literally’, never should have let him answer me he was going to start his own couldn’t trust anyone. He looked wearing trackie dacks and ugg boots, I re-connected to the Webex link even if he recovered, which was a questions, he had no idea what he news channel (go on, guess what he’s aghast. I told him that he had appearing in a long pre-trial hearing to hear O’Connell J say, “Alright, we big ‘if’.) And it would demonstrate, was saying. going to call it) where he could say to go down to Pennsylvania and with a number of other counsel, seem to have restored the link. What conclusively, that POTUS couldn’t Journalist: “Has the President been whatever he wanted anytime because start removing the fake Biden clients, and instructors. There were were you saying Mr Chisholm?” It even protect himself. placed on a ventilator?” the cameras would follow him 24 ballots himself. 17 little windows on my Webex seems no-one really noticed, or if “That’s brilliant!” he said. “Almost Actor: “A what?” hours a day. They would even film “It’s time to pull out the screen. Midway through the morning they did it was just a fleeting and as smart as me.” He was nodding Journalist: “Has the President been him while he was watching himself ‘Lukashenko’ Mr President.” Chisholm (G) was in the middle unpleasant apparition. If only that approvingly, his eyes snaking off given oxygen?” watching himself on his own news A look of steely determination of a somewhat abstruse statutory were true. to the side as he watched himself Actor: “The President is breathing channel, ready and waiting to capture came over his face. interpretation argument (is ‘a’ really Later that day I hit the link on nodding approvingly. the air, and feeling tremendous.” any pearls of fact and wisdom from Before he hung up I heard him say very different from ‘any’?) when the invite Trump sent me and found A few days later I was appearing Two out of three of my three-point this Great Man. to his security guys, with urgency, another little window popped up on myself looking into the Oval Office virtually in the Supreme Court plan worked wonders, especially on a I don’t know that catching the “I’ve got to go to Philly. Incognito. the screen. again. Right in front of the camera cross-examining a witness, several few thousand people in Pennsylvania. virus was such a great idea, in Let’s turn this ‘cade around.” windows open on my screen, Rudy Giuliani led the campaign hindsight. Some of his rusted-on Hopefully that’s the last I hear Jaws dropped. Even O’Connell J, usually when he popped up again, waving and the legal challenges from outside supporters now think he’s some of him. unflappable, raised an eyebrow and looked mildly frantically at me (and everyone else). Then he disappeared.
surprised at this uninvited attendee. Hollingworth J was not impressed. Corner Poetry She threw down her pen. “Who on It stood out because the little was a large jar of foundation, and earth was that?” box was mostly a bright glow from few tissues. I just said, feigning innocence, the window behind a silhouette, one “There you are” he said. “What are “I think it was the President of the strangely familiar to me. As he came we going to do Koh-lyn? Sleepy Joe United States, Your Honour.” closer to the screen I saw that it was is beating me. There’s no way I’m “I don’t care who it was, I will Trump, sitting at a desk, apparently losing to that guy. And that virus is not have people interrupting the in the Oval Office. He was there long out of control.” proceedings of this Court. We’ll have enough for quite a few people on the I’d thought about it. It was time a short break while we check the The Future link to notice. Jaws dropped. Even to redeem myself. I set out my link.” We all bowed in our respective O’Connell J, usually unflappable, three-point plan. living rooms and studies towards our PETER MATTHEWS raised an eyebrow and looked mildly “Mr President, I’ve got some ideas. respective computers. surprised at this uninvited attendee. Number one, appoint Rudy Giuliani I ran to another room and called Beyond our gate is a new reality. And then everyone else as your campaign manager and Rudy. “What the hell is going on here, Autumn is still and coloured, as ever, disappeared except the Pres, chief legal adviser. I can recognise Rudy, you’ve got to stop interrupting But a chance meeting unfolds carefully; looming orangely into my a brilliant, genius legal mind when me like this.” We speak across a divide to each other. living room. I see one.”(I didn’t see one in Rudy.) “Look we’ve tried to give him Covid, Shops are closed and quiet, their window signs “Koh-lynn,” he mouthed At this point Rudy himself leered we’ve tried everything, but I think Envisage the end. But cafés remain, soundlessly, and then mouthed some in from the side of the screen, he’s immune. Melania’s got it, I’ve got With their empty tables and ordered lines other things equally soundlessly. swapping exhalations with the it, the kids have got it. We’ve been to For the takeaways they work to maintain. “Mr President?” He kept talking. Pres, their cheeks close together, rallies without a mask, but he’s just Perhaps their owners seek to hold their place “Turn your microphone on, Mr with his thumb up. not getting sick.” In a shifting world. An unknown future President!” I said, loudly, as though “Number two, stand up to Fox “Well fake it, Rudy, you don’t have Awaits us all as we seek a truce the volume would help. He looked News when they’re negative about much time. There’s heaps of out of With this formidable intruder. off-screen for a moment and then you. Demand loyalty from all media work actors in the US, and Hollywood Is there a sense of a new opening a factotum’s hand reached in and outlets. Insist on it. You’re the leader is just around the corner. Hire That lies yet beyond reach, beyond knowing? pressed a button in front of him. of the free world, start dictating your someone to pretend to be a doctor,
54 VBN VBN 55 news and views News &Views The Open Justice Project – the Monash news and views news University and Victorian Bar Pro Bono Program
The Victorian BY LAURA HILLY, TIM FARHALL AND WILLEM DRENT
Commercial an you remember when you first saw the Open Justice Project will provide students with ‘law’ in action? practical experience to contextualise their legal studies, Arbitration Scheme Was it that summer you spent with and to improve awareness amongst students of the work the suburban solicitor who reminded of a barrister, the value of pro bono work, and issues you of Dennis Denuto, wrestling with concerning access to justice. KIERAN HICKIE the photocopier and navigating that In turn, students participating in the Open Justice precariously leaning multi-draw filing cabinet? Or Project will provide valuable pro bono legal research was it when you started volunteering at your local support and paralegal assistance. Despite the challenges n September 2020, the will be heard and determined community legal centre, watching lawyers working and uncertainty of the past year, members of the Victorian Commercial on a documents only basis, minor miracles sustained by long-life milk and that Victorian Bar continue to perform tirelessly pro Arbitration Scheme without a hearing. The award Cmassive tin of Nescafe? bono work. That assistance will help barristers to (VCAS) was launched will be delivered within 90 days The moment when ‘law’ opens up— continue to support access to justice for all by the Victorian Bar to from the commencement of the transforms from words in textbooks members of our community. address the growing arbitration. For other disputes, and hypotheticals in lecture The Open Justice Project will demand for quick and cost-effective the parties can expect the award theatres, to real people and complement a broad offering ways to resolve civil and commercial to be delivered within 120 days of the VCAS has established an inaugural real consequences—is of “experiential” learning disputes through arbitration instead commencement of the arbitration. panel of qualified arbitrators. They an important moment programs offered by the of litigation, particularly in the VCAS arbitration has been are experienced in arbitration and in every legal career. Monash Faculty of Law. developingI COVID-19 environment. developed with party autonomy and available to hear and determine a For some aspiring As Dean of the Monash Arbitration is a private process flexibility in mind. VCAS arbitration dispute referred to VCAS arbitration. lawyers, this is Faculty of Law, Professor where parties agree to resolve a provides for, and encourages, online Each person appointed to the VCAS when they thank Bryan Horrigan said: dispute by referring it to an arbitrator hearings (either through Zoom or panel of arbitrators is a fellow of the their lucky “Monash Law’s long- who makes a binding decision on other preferred online platforms) Chartered Institute of Arbitrators stars that they standing commitment the dispute (an award) which can through to ‘stop clock hearings’ (having completed an arbitration combined their to access to justice be enforced in Court. The objective (where parties can agree to a time award writing course), or accredited law degree with in Victoria continues of VCAS is to facilitate the quick, limit for hearings). However, these with the Resolution Institute. a finance major through our Monash cost-effective and fair resolution types of hearings are subject to the The quality of the arbitral panel and retreated to Law Clinics under of commercial disputes through parties’ agreement. is an essential component of VCAS a job down the our unique Clinical arbitration. A key feature of VCAS arbitration is arbitration. The intention is to ensure other end of Collins Guarantee for law Parties who agree to resolve their to reduce cost and expense of resolving that parties who refer their dispute Street. But for others, students. Monash Law is disputes by way of VCAS arbitration disputes for parties. VCAS arbitration to VCAS can be confident that they including barristers, proud to work with VicBar to will be bound by a set rules (VCAS provides for fixed fee arbitration, will receive a fair and proper hearing, it is an introduction to enable our students to assist Rules) and a guide (VCAS Guide). which means the arbitrator’s fees and a binding and enforceable award work that can evolve into Victorian barristers in pro bono The VCAS Rules and the VCAS are capped at 10 per cent of the total within a short time frame. a lifelong profession, passion legal work for those most in need Guide have been designed with amount in dispute (claim plus any The Victorian Bar encourages and dedication to service. of legal assistance, while also allowing party autonomy, cost efficiency and counterclaim). This means that the members who have an interest The Open Justice Project is an students to develop real-life experience of speed in mind. The VCAS Rules arbitrator in each case agrees to in arbitration, and who have the opportunity to open that door to a new client needs and law in practice.” are designed to be simple and charge their time on the basis of fixed requisite qualifications, to apply to generation of lawyers. flexible enough to accommodate the rates in the VCAS guide, unless the join the VCAS panel of arbitrators. An initiative of the Victorian Bar and Monash The Open Justice Project is led by a working group determination of a wide range of parties otherwise agree, or exceptional VCAS is a terrific opportunity for University’s Faculty of Law, the Project will set up a of Laura Hilly and Willem Drent from the Victorian disputes expeditiously. circumstances apply. practitioners interested in arbitration panel of selected later-year undergraduate and post- Bar Pro Bono Committee, Tim Farhall from the Victorian While VCAS arbitration is designed Parties to a dispute who agree to gain arbitration experience (both as graduate students who can assist barristers at the Bar Student Engagement Committee, and Associate for disputes of all sizes, its features to resolve their dispute through arbitrator, and as counsel representing Victorian Bar working on pro bono matters. Inspired Professor Ross Hyams and Melissa Fletcher, Manager are beneficial to the resolution of VCAS arbitration are able to select a party in VCAS arbitration). by previous Victorian Bar and Monash Law initiatives of Experiential Education, from Monash University. A pilot smaller disputes, in an effort to one of the arbitrators on the panel More information about VCAS (and and successful equivalent schemes operating at other of the Open Justice Project will commence in 2021, and avoid protracted litigation in Court. of arbitrators maintained by VCAS. a copy of the VCAS Rules and VCAS Australian and international universities (such as the upon review of an initial trial phase it is hoped that the If the dispute is for $50,000 or less, Otherwise, parties are free to decide Guide) is available on the VCAS University of Queensland’s ‘Barrister Assistance Team’ program can be expanded. Look out for communications
image courtesy of bigstock: stock photo id 243074227 - mspoint id 243074227 photo stock of bigstock: courtesy image or if the parties agree, the dispute on their own arbitrator. website at vcas.net.au. and the University of Oxford’s ‘Oxford Pro Bono Publico’), early in the new year!
56 VBN VBN 57 news and views
Expedited Mediation be heard at trial in the County Court, The ICC Commercial Mediating in the time of Scheme and Court there will be a significant saving Mediation Competition in the number of days of court news and views news Protocols and the Henry Jolson Prize trial time because cases have been Since March, the Alternative Dispute The first fully online International COVID-19 and beyond successfully mediated. The County Resolution Committee has worked Chamber of Commerce mediation Court judges have indicated that this on initiatives to capitalise on this competition took place between 30 TONY ELDER, ADR COMMITTEE CHAIR & GLEN PAULINE, ADR COMMITTEE MEMBER saving may be tracked and quantified moment in history to further advance August and 1 September, 2020. It as part of assessing the success of the mediation as the way most disputants was conducted on Modron Spaces referral scheme. or the Bar’s nationally accredited For some mediators, the concept of asynchronous receive access to justice. The with the Grand Final held on Zoom. mediators, 2020 was the year in which a mediation suddenly made a huge amount of sense committee has worked hard to assist Lawyers Mediation The Australian Disputes Centre tectonic shift occurred in our practices. for certain types of disputes. Without the need to the courts in managing the pressures managed the competition, which was Until 2020, online mediation had been travel, shorter sessions could be scheduled across imposed on the justice system due to Certificate—via Zoom sponsored by the Victorian Bar by seen by some as the way of the future, several days, especially when the parties were the COVID-19 closures. The first fully online Victorian Bar way of prizemoney to the winning possibly as an adjunct to the perceived heading towards a negotiated settlement but needed As at the close of 2020, the Bar Lawyers Mediation Course was team. Judges from the Victorian Bar real work of mediators which is performed face to more time to consider matters and negotiate terms. has a strengthened foundation in conducted by Peter Condliffe and included William Lye QC, Michael face. Others could not have envisioned in their wildest Depending on the platform being used, messaging cooperatively working with the Glen Pauline in November 2020 Gronow QC and Glen Pauline, Fdreams what was about to occur. Suddenly mediators, functions could be used to keep the communications courts to provide mediation services, via Zoom, with technical support who presented the Victorian Bar’s like counsel, judges and solicitors, were catapulted within the vacuum of the confidential online environment both online and face-to-face, provided by Nina Massara and the Henry Jolson Prize to the winning into the relatively unchartered territory of online rather than scattered throughout multiple parties’ email including the following initiatives: education team of the Vicbar office. team, from the National University videoconferencing. boxes. This proved to be a very helpful case-management » Lists of Vicbar mediators, who are It was an overwhelming of Singapore.7 tool for mediators. willing to provide online mediation success and opens up Zoom, Microsoft Teams, Modron In this respect, on Modron Spaces, a platform in family law, commercial and new ways of delivering Mediating in 2021 Spaces and more custom-designed for mediation and online industrial list matters, have been the expert ADR and beyond hearings, the messaging and uploading provided to the Federal and training that Vicbar Mediating in 2020 was first all about After the year we have of documents in the Everybody Space Family Circuit Courts for display provides to barristers choosing a technology platform, or had, it is hardly wise to creates a trail which can readily be on their website;1 aiming to enter the several, setting up an account and then plan for, or predict, what viewed by all parties throughout the » The Victorian Bar Expedited NMAS system of understanding how to use it to try to the world will be like process for as long as it continues. Mediation Scheme;2 accreditation and replicate a face-to-face mediation! next year. Many mediators In complex cases or where dispute » Protocol for Commercial Panel grow their mediation Online private spaces and break-out are hopeful of returning to resolution needs to occur over weeks Federal Circuit Court matters;3 practices. rooms for videoconferencing needed face-to-face mediation soon, or months, this way of managing » Protocol for Family Law While much of the to be mastered. Mediators quickly in the cases that call for that, and mediation is likely to increase. On Zoom, Property Federal Circuit teaching of the practical skills of needed to become technology educators, where it is the preference of the the chat function can be used, and the Court matters;4 a successful mediator is optimally firstly of themselves. Parties and solicitors parties. The first question for parties ‘chats’ can be saved as a file. » Protocol for Industrial (Fair Work conducted in a face-to-face had varying levels of familiarity with the and lawyers in 2021, however, will As the courts commenced using different Division) Property Federal environment, the theoretical material technology. In the early days of COVID-19, it became not be “Where can we meet to platforms for mediation, including Microsoft Teams and Circuit Court matters;5 can easily be delivered necessary to spend time before the mediation checking mediate?” but, rather, “Shall we Zoom, solicitors and barristers by the end of 2020 became » County Court to all participants on Zoom. that each participant received a link, was able to log on mediate face-to-face or online?” accustomed to mediating online. Overall, mediation Commercial Future LMC courses to a videocall, and had a device with a camera (some continued unabated throughout the time of the pandemic Division Mediator are likely to be a hybrid 1. see “Alternative dispute resolution, didn’t realise their devices had no cameras until trying to settlement and mediation services as an essential tool in resolving disputes. Referral Scheme.6 of online and face-to-face log on to videoconferences!). This had some advantages. – stakeholder information” page at As COVID-19 restrictions ease, towards the end of The County Court teaching, which should federalcircuitcourt.gov.au/wps/wcm/ The relationship between the mediator and each party 2020, and disputes arising from or caused by COVID-19 Commercial Division increase the level of connect/fccweb/about/news/adr- commenced earlier and, in a context where everything covid-info are likely to unfold through 2021, it seems likely that Mediator Referral satisfaction of participants was new, the shared experience of adopting technology 2. The Scheme is available at ADR mediating online will continue to be normalised if not Scheme was launched and achieve efficiencies and Appointment Services page of the tended to help in getting the mediation process off to become the new normal. Indeed, online mediation may be via Zoom on 20 October savings in delivery of the course. Vicbar website at vicbar.com.au/ a positive start. Other times, however, problems with public/adr/adr-appointment-services the preference for many parties, as well as practitioners, 2020 by Judge Woodward, Judge This will in turn continue to position internet connections and the parties’ unfamiliarity with 3. Ibid courts, tribunals and government bodies involved in Tran and Judicial Registrar Muller in the Victorian Bar as a leading RMAB 4. Ibid the technology served to delay and distract the parties providing mediation. The significant benefits, including conversation with the (Registered Mediation Accreditation 5. Ibid from engaging effectively in the mediation process. 6. Ibid the convenience and reduced time and cost of travel for Chair of the Bar’s ADR Committee, Body) within the NMAS system, Ensuring that mediation took place in privacy 7. Watch the GRAND FINAL and all participants, are likely to continue to be embraced by Tony Elder. and enhance the reputation of the the Henry Jolson Prize being required extra effort. Parties appeared from home many. Barrister mediators have a unique opportunity to Since commencing, there have Lawyers Mediation Certificate Course awarded to the winning team at offices, loungerooms, bedrooms and the occasional disputescentre.com.au/apcmc- be at the forefront of the advances in mediation practice been several referrals both from the as a leading mediator accreditation parked car. Confidentiality was sometimes breached winners-and-awards/ (scroll down by embracing the technology to achieve our purpose: Federal Circuit Court and from the course, advancing the reputation to GRAND FINAL) through the presence of toddlers and pets in view and the cost-effective and timely settlement of disputes County Court. It is anticipated that and status of Victorian Bar mediators. out of view. Mediation agreements were amended to in a manner that meets the needs of the parties. through referral of matters about to
photos courtesy of bigstock courtesy photos reflect these changes.
58 VBN VBN 59 news and views news and views news
IN THE MATTER OF
SHP Steward and EA Gisonda
few years ago, as ‘King’s Counsel’ or ‘KC’ without the need for Simon Steward anything further to be done. QC (now the Hon » Queen’s and King’s Counsel traditionally were Justice Steward appointed by letters patent under the Great Seal.1 of the High Court Issuance is a prerogative power of the Crown,2 of Australia), and exercisable in Victoria by the Governor, as Eddy Gisonda wrote an advice for the Bar Council representative of the Sovereign. at the request of the then president, Jennifer » The origins of the rank lie in an expedient taken Batrouney QC. The question was this: what happens by Elizabeth I in about 1594 to retain for the to QCs when the Queen dies? From time to time, Crown the services of Francis Bacon—or at least sinceA then, various silks and other luminaries have to ensure his services could not be used against asked to see the advice. With permission, the Crown—who was appointed “learned counsel Bar News is publishing this advice for the benefit extraordinary to Her Majesty” but without any and interest of members, so that it may be on the patent or fee.3 It is not known what came of public record. the appointment immediately on the demise of » What are the consequences for members of Elizabeth I, but Bacon had the favour of King counsel who have been appointed to be one of James I and after receiving a knighthood in 1603, Her Majesty’s Counsel for the State of Victoria, on the King authorised letters patent in 1604 that the demise of Her Majesty Elizabeth II the Queen appointed Sir Francis as “one of our counsel of Australia, and the accession to the throne of learned in the law” and granted him an annual the present male heir apparent? The answer is stipend. This is the first known record of letters that those appointed Queen’s Counsel will not patent being issued for such purpose. need to seek new letters patent of appointment. » The precedent was followed once by King James Their current appointments will continue I in 1607 who granted similar letters patent to automatically, and by custom, they will be known Henry Montague, later the Earl of Manchester.
60 VBN VBN 61 news and views
Montague held the rank for four » During the 18th century, the office approximately half of the Queen’s Counsel. This was the A silk gown is, I believe always given at home years until he was appointed of King’s Counsel came to be used King’s Counsel surviving the last time that fresh letters patents on the understanding that it is to be retained King’s Serjeant. Sir Francis had to bestow rank and precedence death of her predecessor, and were issued to individually named news and views news for life, or given up only under special and remained one of His Majesty’s on an individual, rather than as George I similarly re-appointed members of the Inner Bar on Counsel during his time as a form of engagement of forensic approximately half of the Queen’s the demise of the Crown in the unforeseen circumstances. Solicitor-General and then as assistance for the Crown.8 This Counsel surviving the death of United Kingdom. believe always given at home on the continue and remain in full force Attorney-General, but in 1618, he had a number of consequences. his predecessor. Those whose » It is here convenient to track understanding that it is to be retained for beyond 18 months after the was appointed Lord Chancellor First, appointment to the office offices were renewed received developments as were occurring life, or given up only under special and demise of the Crown in the colony and this determined his became more frequent. Second, new individual patents and were in the colony of Victoria. On 10 unforeseen circumstances. A Queen’s of Victoria. This provision was re- appointment as King’s Counsel. by 1831, King’s Counsel no sworn in again. August 1863, the Governor of Counsel, moreover, is forbidden by enacted in identical form, as s 5 of Thereafter the rank fell into longer were paid an annual » It appears that George II renewed Victoria had issued the first letters the professional usage to practise the Constitution Act Amendment temporary disuse. stipend or fee by the Crown, all of the surviving King’s patent in the colony, appointing in inferior courts, to draw pleadings Act 1890 (Vic), which remained » Charles I resumed the practice and barristers were no longer Counsel following the death the Minister of Justice, Archibald and generally to undertake business in force following the death of of appointing King’s Counsel required to vacate their seat in of George I, while George III Michie, and the Honourable which commonly falls to the share of Queen Victoria. and, during his reign, made nine Parliament upon being appointed renewed approximately 10 of the Richard Ireland, to be one of Her the junior member of the profession. » On the accession of Edward appointments and instituted a King’s Counsel.9 Third, and most existing 14 King’s Counsel on his Majesty’s counsel. This was 10 I am aware that their Honours, the VII in January 1901, all Queen’s the still-continuing practice of importantly for present purposes, accession.11 In 1817, as a one-off years after the appointment of the judges of the Supreme Court, concur Counsel in the United Kingdom granting the office at pleasure it precipitated the emergence of measure, it was provided in 57 first five Queen’s Counsel in New in the opinion that these and all other were continued in office, by rather than for good behaviour. the custom that the office, though Geo. III, c. 45, that all offices held South Wales. The appointments obligations attached to the office general or encompassing letters The Crown could not entirely rely at pleasure, should enure for the during pleasure should continue were governed by prerogative of Queen’s Counsel in England and patent appointing them to be of on the advice of the most senior life of the holder. following the demise of George regulations made by the Governor- Ireland ought to be observed and his Majesty’s Counsel.14 This was barristers—the serjeants—who » In 1685, there were approximately III without the need for renewal in-Council on 7 December 1857. enforced in Victoria. (emphasis ours) necessary because of 6 Anne, c. tended to oppose the interests of 13 King’s Counsel, and James II by patent. Thence it was not The regulations provided that, 41, s 8, which provided that upon the Crown in matters of land law; re-appointed 11 of them. necessary for George IV to renew with the exception of those having » We have already made reference the demise of the Crown, all civil hence the use of King’s Counsel Although William and Mary did any King’s Counsel, but in 1830, held the office of Attorney- to the Colonial Offices Act 1830 offices continued for six months whose sole original function was not reappoint many of the King’s it fell to William IV to reappoint General or Solicitor-General, no (UK). The Electoral (Amending) only. Those who were Queen’s to advise the Crown primarily Counsel who were alive following those King’s Counsel who had barrister should be appointed Act 1888 (Vic) contained various Counsel could obtain new letters by serving as an assistant to the the death of King James II, their been first appointed before 1820. Her Majesty’s Counsel except provisions addressing the demise without paying a fee.15 Attorney-General or Solicitor- reign saw the passage of 7 & 8 Will William IV instituted the practice on the recommendation of the of the Crown, including s 52, » In the interregnum between General.4 III, c. 27, s 20, which provided: of according specific precedence Chief Justice to the Governor in which provided that: the demise of Queen Victoria, to King’s Counsel by reference to Council.12 In his letters to Messrs Every commission warrant or other and the issuing of the new a previously-appointed colleague. Ireland and Michie explaining During the 18th century, the office of King’s Counsel authority for the exercise of any office patents by Edward VII, there The Colonial Offices Act 1830 his intention to recommend or employment of any kind or nature appeared to be some unnecessary came to be used to bestow rank and precedence on (UK) (1 Will. IV, c 4, s 2) also their appointment, George within Victoria issued or exercised confusion in the United Kingdom an individual, rather than as a form of engagement of was enacted during the reign of Higginbotham, who was then the by the Governor in Council or the about whether those who William IV, which provided that: Attorney-General for Victoria forensic assistance for the Crown. Governor or by any other person in the were a Queen’s Counsel were but later the Chief Justice of the No patent, commission, warrant, or name and on behalf of Her Majesty or automatically to be called a King’s Supreme Court of Victoria, said:13 » At common law, all appointments That no commission either Civil or other authority, for the exercise of any of any of her successors to the Crown Counsel. at pleasure are determined on Military shall cease determine or be office or employment, civil or military, No Queen’s Counsel have hitherto in virtue of his office or under the » On 26 January 1901, being four the death of the sovereign,5 void by reason of the Death or demise within any of his Majesty’s plantations been nominated in this Colony. I authority of any Act of the Imperial days after the accession of King which included those who had of His present Majesty or any of his or possessions abroad, determinable believe that such appointments would Parliament or of the Parliament of Edward VII, the Law Journal at this time been appointed Heires or Successors Kings or Queens at the pleasure of his Majesty, or be acceptable to the profession and Victoria or of any rules or regulations reported that16: King’s Counsel.6 Following the of this Realme but that every such of any of his Majesty’s heirs and would prove beneficial to the Bar by made thereunder respectively shall The most common phrases of the Restoration, no living King’s Commission shall bee continue and successors, shall by reason of any bringing it into closer correspondence continue in full force notwithstanding legal world have undergone a sudden Counsel was re-appointed by remaine in full force and virtue for the future demise of the crown be vacated with the state in which the profession any demise of the Crown and be of change: the ‘Queen’s Bench Division’ Charles II, who proceeded to space of Six Months next after any or become void until the expiration exists at home. But if Queen’s the same effect as if no such demise has become the ‘King’s Bench appoint more new King’s Counsel such Death or Demise unlesse in the of eighteen calendar months next Counsel are to be introduced here had happened, anything contained Division’, and the familiar title of ‘Q.C.’ than any of his predecessors. A meane Time superseded determined after any such demise of the crown as I think that care must be taken that in an Act of the Imperial Parliament is known in the Courts no more. declaration by the King in Council or made void by the next and aforesaid. the office shall exist in reality as well passed in the first year of the reign in 1671 gave his Majesty’s Counsel immediate Successor … as in name; and that the conditions of His late Majesty King William the » On the same day, it was reported » On the accession of Queen precedence over the serjeants, which are understood to be attached Fourth, chapter four, to the contrary in the Law Times that “with the » This provision was later Victoria, each King’s Counsel which led to an increase in the to the office, and which may in notwithstanding. death of Queen Victoria, the suffix explained by a statute of Queen (save a very small number who appearances of King’s Counsel in some cases be felt to be onerous, ‘Q.C.’ disappears”.17 Anne to include a “patent or grant were not reappointed and thereby » The effect of this provision was all courts, other than the Common shall be accepted together with the of any office or employment”.10 lost their office) received a to provide for letters patent to Pleas.7 title of distinction. A silk gown is, I Queen Anne had reappointed new individual appointment as
62 VBN VBN 63 news and views
» The following week, however, the clear when it is recollected that it is Justice Boucaut of the Supreme And His Excellency has been pleased Counsel. Fifth, with the confining civil and military offices under the editors of the Law Journal said18: competent to the King to refuse to Court of South Australia and Sir to direct that they shall have place, of precedence to the courts, and Crown were similarly automatically sign the warrant for the issue of the Josiah Symon, KCMG, a month procedure, and precedence in His the appointment of new King’s vacated. Prosecutions and actions news and views news It is curious to note that many of patent to any particular individual, later states that:19 Majesty’s Courts or elsewhere in Counsel for the first time, it might were suspended. For a while the whole the daily papers, on the demise of as indeed was demonstrated on the the order in which their names are have been thought convenient to Government of the realm came legally the Crown, at once changed the At the Supreme Court on Friday demise of Queen Caroline, when herein set forth, and that Letters confirm the order of seniority for to a standstill. Throughout the 18th familiar title of Queen’s Counsel morning Mr Justice Boucaut said he George IV for personal reasons Patent be issued accordingly: all King’s Counsel thereafter. and 19th centuries the emphasis was into that of King’s Counsel, and had noticed that since the death of refused to appoint Brougham and Provided that notwithstanding » Any doubt or confusion on this shifting to continuity. The convenience appended the letters K.C. to the the Queen practitioners who held Denman as King’s Counsel, they anything contained in the said matter was removed in July 1901, of this was patent though perhaps the position of Queen’s counsel Order or in the Regulations of His with the passage of the Demise there was sometimes more to be said had been designated by the letters In Victoria, of the 24 appointments of Queen’s Excellency the Governor in Council, of the Crown Act 1901 (UK). in favour of the fresh start than may “K.C.”. According to his reading of dated the 7th day of December, 1857, Sub-section 1(1) of the Act appear at first sight. … Be that as it Counsel in the life of the colony, 14 were still alive the law that was incorrect. Under it shall not be necessary for any of provided that: may, judges were continued in their the Common Law the commission on the accession of King Edward VII. the said gentleman to whom Letters office; military officers were continued of Queen’s counsel would lapse The holding of any office under the Patent have heretofore been issued in their commissions. The continued names of the ‘silks’. Whether having held the appointments of immediately on the demise of the Crown, whether within or without constituting, ordaining, and appointing life of Parliament was assured by the in technical accuracy such an Attorney-General and Solicitor- Crown, and unless new patents were His Majesty’s dominions, should not him a Counsel of Her late Majesty Representation of the People Act, immediate change was justifiable is General respectively to Queen issued lawyers holding that office be affected, nor should any fresh Queen Victoria to take out any further 1867. And finally, by the Demise of somewhat doubtful. Caroline. would not be entitled to wear silk. appointment thereto be rendered Letters Patent. the Crown Act, 1901, it was enacted By virtue of a statutory enactment, necessary by the demise of the Crown. The legal position appears to be The appointment of a Queen’s that “the holding of any office under however, they were entitled to retain » Although it was not immediately strictly this. Certain members Counsel is from the terms of the » The Demise of the Crown Act the Crown . . . shall not be affected, the title for six months after the necessary to make this Order of the Bar, in numbers not a few, patent creating it purely a personal 1901 (UK) remains in force in the nor shall any fresh appointment death of the Sovereign by whom it because of s 5 of the Constitution were by Letters Patent under the one. No mention is made therein of United Kingdom today. In Victoria, thereto be rendered necessary, was conferred. Sir Josiah Symon said Act Amendment Act 1890 (Vic), Great Seal of the late Sovereign the successors of the Crown, and a s 11(1) of the Constitution Act 1975 by the demise of the Crown.” he agreed with his honor that there there may have been a number appointed as her Majesty’s counsel Queen’s Counsel, on the demise of (Vic) continues to provide that all Thenceforward, to take a particular was no authority for the designation of reasons why the Order was learned in the law. The office of the Queen, can no more become a appointments by the Governor instance, though judges might “King’s counsel.” They were still made in any event. First, the Queen’s Counsel being held at King’s Counsel than one of her late Queen’s counsel and only entitled to Governor in Council may have the pleasure of the Crown would Majesty’s physicians can become wear the silk gowns up to the end of thought it desirable to resolve The King is dead. Long live the Queen! formerly have been vacated by the one of his Majesty’s physicians the term named. His Honor said that the debate identified by the demise of the Crown. By virtue, otherwise than by express he would continue to use the letters editors of the Law Journal as however, of the statute of 6 Anne, appointment. It is noteworthy continue in force, notwithstanding adjourn their courts as a symbolic Q.C. for the period of six months from quoted above. Second, there c. 41, s.8, every person in such that the 16 gentlemen who were the demise of the Crown. As well, gesture on the announcement of the death of the Queen. might possibly have been a office is continued in office for six approved as Queen’s Counsel just the Demise of the Crown Act 1901 the death of the Sovereign; there question about the combined months after the demise of the prior to the death of the Queen » In Victoria, of the 24 (UK) applies by paramount force was no legal necessity for them to operation of the statute 6 Anne, Crown unless sooner removed by were sworn in as King’s Counsel appointments of Queen’s Counsel in Victoria.23 renew the judicial oath or the oath of s 5 of the Constitution Act the new Sovereign. The terms of before the Lord Chancellor in his in the life of the colony, 14 were » By reason of this statutory regime, allegiance. Similarly King’s Counsel Amendment Act 1890, and the his Majesty’s recent proclamation private room at the House of Lords still alive on the accession of King all King’s and Queen’s Counsel retain their patents without any fresh Colonial Laws Validity Act 1865 confirm this statutory renewal of on January 31, and on the same Edward VII. On 8 February 1901, now keep their appointment for appointment. In the reign that is (28 & 29 Vict. c. 63, s 2).21 Third, offices held under the Crown. But day went through the ceremony Isaac Isaacs (then the Attorney- life unless specifically revoked, opening the change is notably marked there had not been a change of it is to be observed that the result of being called within the Bar at General of Victoria) issued a and no action is necessary on the for the lawyers by the return, after monarch for over 62 years, and of the statute and the proclamation the Law Courts. This is consistent notice in the Government Gazette demise of the Crown. As far as we half a century, to the styles “Queen’s the Order may have been issued is merely to effect an extension of with the view expressed above, that the Governor in Council are aware, no fresh letters patent Bench Division” and “Queen’s as an abundance of caution office for six months without in any as the patents issued to these had appointed certain named were issued and no other action Counsel.” (It happens that there are in all of the circumstances, way changing the title or function gentlemen expressly appoint them gentlemen to be His Majesty’s was gazetted in 1910, 1936,24 still two men living who were Queen’s particularly when a similar of the holders of such offices. to be his Majesty’s Counsel. All Counsel.20 Named thereunder or 1952. Counsel before they·were King’s course had been adopted in the other gentlemen called within were each of the 14 living Queen’s » Following the death of King Counsel.) But beneath such forms It would seem, therefore, that those the United Kingdom. Fourth, in the Bar during the last reign will Counsel in order of appointment, George VI, it was reported in as these and behind the splendid who in the last reign attained the 1897, general precedence that presumably in due course receive followed by three new the Law Times that25: ceremonial of the Proclamation there dignity of silk are still correctly had traditionally been granted new patents as King’s Counsel, and appointments: the Honourable remains the principle of continuity described as QCs, being in fact by by the appointment of Queen’s Formerly on the death of the will subsequently take the usual James Casey, George Neighbour, that the Sovereign never dies. The their patents her late Majesty’s Counsel in the United Kingdom Sovereign the emphasis was on form of oath as Counsel of his and Frank Gavan Duffy (later the King is dead. Long live the Queen! Counsel. They will, it is submitted, was confined in that country to the change of the royal person, the Majesty King Edward VII. Right Honourable Sir Frank Duffy, only become King’s Counsel after the courts.22 The Order may be fresh start. Not only was there the » In our law “the king is said never KCMG, Chief Justice of the High patents have been issued to them » There appeared to be similar said to have served the purpose new Great Seal, the new coinage, to die”, for immediately on the Court of Australia). The notice under the Great Seal appointing confusion elsewhere. A record of of confirming this change in the the new regnal year, Parliament decease of the reigning sovereign, then continued as follows: them as such. That this is so seems an exchange in court between Mr state of Victoria for all King’s was automatically dissolved and the right of the crown vests, eo
64 VBN VBN 65 news and views
for the State of Victoria will introduced in 2014. The language of counsel appointed to be one of retain their letters patent, but be of appointment is entirely the Senior Counsel for the State designated one of His Majesty’s consistent with this conclusion. of Victoria, and who have not been news and views news Counsel, or “King’s Counsel” or There are no words used that appointed one of Her Majesty’s “K.C.”, thenceforth. indicate that the appointment is Counsel. These members of » We have examined the terms of limited to the life of our current counsel do not become a King’s appointment of Queen’s Counsel Queen. Nor do any other temporal Counsel following the demise of in their current form, including limitations appear. the Crown. the form that existed before 2000, » Finally, the demise of the Crown and the present form that was has no impact on those members
1 For a more detailed explanation of 10 1 Anne c. 2, s 1. effected by instrument and statute: see the nature and history of the office, 11 The reasons for not reappointing a s 1(1) of His Majesty’s Declaration of see J Sainty, A list of English Law number of the existing King’s Counsel Abdication Act 1936 (UK). Officers, King’s Counsel and Holders are not known to us, but it is possible 25 (1952) 213 L.T. 83, at 84. of Patents of Precedence (1987, Selden that some (or all) of those who were not 26 W Blackstone, Commentaries on the Society Supplementary Series, vol. 7); reappointed did not apply. J Baker, Collected Papers on English Laws of England (1893 edition), 196, 249. Legal History (2013, vol. 1), 124 ff.; 12 A Dean, A Multitude of Counsellors 27 Commencing on 4 February 1952, Rose W Holdsworth, A History of English Law (1968), 259. Heilbron, KC, appeared for solicitor (1924 vol. 6), 472 ff.; W Holdsworth, “The 13 A Dean, A Multitude of Counsellors Louis Bloom on a murder charge at Rise of the Order of King’s Counsel (1968), 259-260. Durham Assizes in Yorkshire. On 6 and its effects on the Legal Profession” 14 [1901] AC v; (1901) 110 L.T. 371, at February, when Bloom finished giving (1920) 36 L.Q.R. 212. Separately, see 371. The announcement in the London evidence, Mr Justice Hallett announced J D Merralls, “Some Marginal Notes Gazette was as follows: that His Majesty the King George VI About Queen’s Counsel” (1994) 89 Vic had died and adjourned the court for 10 The King has been pleased, by several Bar News 51. minutes. As her biographer explains: instanti, upon their heir.26 So too, to the throne. No new letters patent have already mentioned, King’s Letters Patent under the Great Seal, to 2 Attorney-General for Dominion of appoint and declare:- Thereafter everyone wore court in the event that a King succeeds are needed for such a change to take Counsel and Queen’s Counsel Canada v Attorney-General for Province mourning—counsel swapping normal That the persons who were appointed by a Queen or vice versa, the title place, and none are conferred. In received a yearly stipend or of Ontario [1898] AC 247 at 252; Waters bands for white mourning bands. Her late Majesty to be of Her Majesty’s v Acting Administrator of Northern Overnight the King’s Justices became and accompanying post-nominal fact, there is no real change of title fee from the Crown, and until Counsel learned in the law shall be of Territory (1993) 46 FCR 462 at 473; the Queen’s Justices and King’s Counsel His Majesty’s Counsel learned in the letters of any of His or Her at all, because, in formal terms, a silk the discontinuance of that fee J D Merralls, “Some Marginal Notes became Queen’s Counsel. law, with all such precedence, power, Majesty’s Counsel will change is appointed to act as counsel to the in about 1831, a member of About Queen’s Counsel” (1994) 89 Vic and authority as were originally granted Following the conclusion of the case, on Bar News 51 at 51. statim.27 The law reports show Crown, regardless of who the monarch Parliament who was a barrister to them 10 February 1952, The News Chronicle 3 Before this, barristers who advised the acknowledged the change in her title, King’s Counsel retaining their of the day may be, and his proper title vacated his seat on appointment, 15 (1901) 110 L.T. 347, at 348. Crown and who provided assistance to running a two-page spread entitled rank following each demise until is neither ‘QC’ nor ‘KC’ but simply thus showing that the the Attorney-General and the Solicitor- 16 (1901) 36 L.J. 39, at 39. “Rose Heilbron Q.C. Ends Another 1952 when they became Queen’s ‘one of Her Majesty’s counsel’ or ‘one appointment was regarded as an General were sometimes styled “King’s 17 (1901) 110 L.T. 279, at 280. Brilliant Case. Judge Talks of her Counsellors”: see A Dean, A Multitude of Eloquent Advocacy”: see H Heilbron, Counsel, seemingly without delay. of His Majesty’s counsel’, as the case office under the Crown. Serjeant 18 (1901) 36 L.J. 51, at 51. Counsellors (1968), 259. Rose Heilbron: Trailblazer and Legal Icon » Speaking of the relationship may be … Pulling, in his work on the 19 The Adelaide Advertiser, 9 March 1901, 4 M T W Arnheim, “Silk, Stuff and (2012), Chapter 10. at 6. between Queen’s Counsel and Order of the Coif, states that the On 18 February 1952, Time Magazine » The position occupied by Queen’s Nonsense” (1984) 101 S.A.L.J. 376 at 378; the Crown, Professor Arnheim appointment of King’s Counsel see also W J V Windeyer, Lectures on 20 Victoria Government Gazette (No. 21), 8 reported that: Counsel is in the nature of an February 1901. has said: 28 was treated in Westminster Hall Legal History (2nd edition, 1949), 157. In London’s High Court, King’s Counselor office under the Crown, in some 5 In re Cardew; Ex parte Bank of 21 See, e.g., In re Cardew; Ex parte Bank of Harold Shepherd had just finished as an office under the Crown, A barrister taking silk in, say, 1841, respects a “very special type of Australasia (1901) 10 QLJ 176 at 178. Australasia (1901) 10 QLJ 176 at 178. cross-examining a defendant when the however indefinite its duties news came. The court adjourned. Ten early in the reign of Queen Victoria, office”,29 although any duties 6 J H Baker, The Common Law Tradition 22 For a copy of the letters patent, see J and obligations.33 (2000), at 89 (cited in fn. 88, M Sainty, A list of English Law Officers, minutes later, the lawyer resumed the would probably have spent the rest of which it entails are almost as floor as Queen’s Counselor. » It follows that on the next demise Blackwell, “Taking Silk: An Empirical King’s Counsel and Holders of Patents his life as a ‘Queen’s Counsel’, as the unsubstantial as its emoluments; Study on the Award of Queen’s Counsel of Precedence (1987, Selden Society 28 M T W Arnheim, “Silk, Stuff and of the Crown, and unless there Queen’s reign continued for another and it is also of the nature of Status 1981-2015” (2015) 78 M.L.R. 971). Supplementary Series, vol. 7), at 297. Nonsense” (1984) 101 S.A.L.J. 376, at is any legislative amendment 378-379. sixty years. But if by chance our an honour or dignity to this 7 J D Merralls, “Some Marginal Notes 23 Imperial Acts Application Act 1980 (Vic), to the contrary, each of Her About Queen’s Counsel” (1994) 89 Vic s 4(1)(b); J Selway, The Constitution 29 Waters v Acting Administrator of hypothetical silk was still alive on 22 extent that it is a mark and Majesty’s Counsel for the state Bar News 51 at 51. As Mr Merralls says, of South Australia (1997), at [2.3.2]; Northern Territory (1993) 46 FCR 462 at January 1901, he would automatically recognition by the Sovereign of further, the Serjeants retained their G Taylor, The Constitution of Victoria 473. of Victoria will immediately and (2006), at 68 (footnote 25); A Twomey, have become a ‘King’s Counsel’ on the professional eminence of right of exclusive audience in the Court 30 Attorney-General for Dominion of automatically become one of His The Constitution of New South Wales 30 of Common Pleas until 1846. Canada v Attorney-General for Province that day, which marked the death of Counsel. Further, that the patent (2004), at 607 (footnote 118). See also Majesty’s Counsel for the state of 8 W J V Windeyer, Lectures on Legal of Ontario [1898] AC 247 at 252; Waters the old Queen and the accession of letter from the Attorney General of of a Queen’s Counsel creates an History (2nd edition, 1949), 157; v Acting Administrator of Northern 31 Victoria. The legislation, custom Victoria to the Chair of the Standing King Edward VII. All silks changed “office under the Crown” or an Halsbury’s Laws of England (4th Territory (1993) 46 FCR 462 at 473. Committee on Legislation, Legislative and practice to which we have edition), vol. 3(1), at [359]; J D Merralls, from QC to KC on that day, and all “office or employment of any kind Council of Western Australia, 21 May 31 Demise of the Crown Act 1901 (UK), s referred above put beyond doubt “Some Marginal Notes About Queen’s silks changed from KC to QC on 6 or nature within Victoria issues 2015, in response to that Committee’s 1(1). that immediately following the Counsel” (1994) 89 Vic Bar News 51 at 32 Inquiry into the Demise of the Crown 32 Constitution Act 1975 (Vic), s 11(1). February 1952, when the death of King or exercised by the Governor” 51. death of the Queen of Australia, Statute. 33 Serjeant Pulling, The Order of the Coif George VI brought Queen Elizabeth II is clear from its terms. As we 9 (1901) 36 L.J. 39, at 41. each of Her Majesty’s Counsel 24 Whereby a “demise” of the Crown was (1884).
66 VBN VBN 67 news and views
news and views news Commemorating William Ah Ket —a life of diversity and service
Andrew Godwin*
illiam Ah Ket [麦锡祥] was a Chinese man had been found in the laundry between born in Wangaratta in 1876. He 9 and 10pm ironing a shirt, allegedly in breach of the studied law at the University of after-hours work prohibition. William’s legal team Melbourne before joining the law successfully proved that the Chinese man was not an firm of Maddock & Jamieson (now employee of the laundry but instead a boarder and that Maddocks) and commencing the he had simply been ironing his own shirt! articled clerk’s course in 1898. After completing the William appeared in another High Court case: Potter course in 1899, William won the Supreme Court Judges v Minahan. In that case, he represented a man who Prize in 1902 and was admitted to practice in 1903. was born in Australia of a Chinese father and a white William was called to the Bar the following year and is Australian mother. At that time, people born in Australia Wwidely understood to have become the first Australian were British citizens by right, regardless of their parents’ lawyer of Chinese descent to practise as a barrister at origins. His father had taken him to China when he was the independent Bar in the State of Victoria. about five years old. After living in China for many years, The Australian Dictionary of Biography notes the he returned to Australia as an adult but was treated as following in its entry on William Ah Ket: a prohibited immigrant because he failed the notorious dictation test imposed by the immigration legislation at Ah Ket built up a healthy practice at the Victorian Bar, the time. William’s legal team successfully proved that specializing in civil law. He was in the front rank of pleaders he was not a prohibited immigrant. In its decision, the and became renowned as a fine cross-examiner—quietly High Court found that if the immigration legislation had spoken, courteous and shrewd—and as an outstanding jury intended to remove the rights of citizenship, it should man. He acquired a considerable reputation as a negotiator have expressed its intention clearly. In a well-known Clockwise from above: William Ah Ket in Selborne Chambers, Melbourne circa 1933; Ah Ket of settlements. Ah Ket’s colleagues remembered him with passage, Justice O’Connor stated as follows: as a young man; Wangaratta Primary School, which William Ah Ket attended as a child; warmth and affection as an amiable and gregarious man, Visit of His Excellency Hwang How Cheng (Chinese Commissioner) to the Ballarat School of Mines, 13 November 1906, accompanied by William Ah Ket (front row, fourth from the left) greatly respected for his ability and integrity. He was an It is … improbable that the legislature would overthrow as interpreter; Law Cricket Team with William Ah Ket as scorekeeper (standing, far left in excellent after-dinner speaker, a prominent Freemason fundamental principles, infringe rights, or depart from the dark suit and bowler hat), circa 1904 and a keen punter and golfer. general system of law, without expressing its intention with irresistible clearness… During his career at the Bar, William counted many classics and modern languages and was wont to quote well-known Australians among his friends, including Despite the bamboo ceiling that he is likely to have Shakespeare and the Scottish poet Robert Burns during Sir Robert Menzies, who is said to have modelled his encountered during his life and career, William chose his appearances in court! oratory on William’s, and Sir Owen Dixon. not to focus on his own circumstances but, instead, to In addition to a busy career at the Bar, William spent A committed advocate for the Chinese community, work on removing barriers and achieving reconciliation time as a diplomat, serving as acting consul-general for William was particularly active in the fight against between West and East. William’s focus on reconciliation China in 1913–1914 and in 1917. He and Gertrude had two racial discrimination. In addition to lobbying against is reflected in the Second Morrison Lecture that he sons and two daughters. His younger son, Stanley, became discriminatory legislation, such as the Immigration delivered in 1933. In the lecture, William questioned a solicitor but was killed in 1945 while serving in the Restriction Bill of 1901, William appeared in many cases whether there was a real difference between the cultures Second World War. His elder daughter, Melaan, married that would be described today as ‘public interest’ cases. of the East and the West and drew parallels between the English guitarist, Len Williams. Their son, John In the High Court case of Ingham v Hie Lee, William Western culture and Confucianism. Noting that music Williams, is the world-renowned classical guitarist. represented a Chinese laundry owner who was charged had a peculiar charm for Confucius, he mused that if William’s life was one of diversity and service. His legacy with an offence under the Factories and Shops Act 1905 in Confucius had lived at that time, “it is quite likely that he is one of which the Victorian Bar can rightly be proud. Victoria. The Act expressly discriminated against Chinese would have found in the music of the bagpipes something * Dr Andrew Godwin is an Associate Professor at workers and prohibited after-hours work in a factory particularly stirring and satisfying to the soul”. Melbourne Law School and is researching the life and or work-room where furniture was made or where any William would have had an affinity with bagpipes legacy of William Ah Ket. Andrew can be contacted on Chinese person was at any time employed. The reason as his wife, Gertrude Bullock, was of Scottish descent. [email protected]. The Victorian Bar will soon the Chinese laundry owner had been charged was that He possessed a deep knowledge of the Western unveil a photograph of William Ah Ket.
68 VBN VBN 69 news and views
and Harold Holt (Prime Minister and Richard McGarvie (Governor of The Alfred Deakin bust 1966 to 1967). It also holds portraits Victoria 1992-1997) both by William of Robert Menzies (Prime Minister Dargie. The commissioning of the news and views news 1939 to1941 and 1949 to1966) by Ivor Deakin bust by Stephen Benwell is by Stephen Benwell Hele, Isaac Isaacs (Governor General part of this series. 1931 to1936) by Percy White, Zelman The Acquisitions and Cowen (Governor General 1977 Commissioning Protocol can be CAMPBELL THOMSON AND SIOBHAN RYAN to 1982) by Andrew Sibley, Ninian found at vicbar.com.au/public/ Stephen (Governor General 1982 to about/about-victorian-bar/peter- 1989) by Rick Amor, Henry Winneke ocallaghan-qc-gallery/acquisitions- lfred Deakin came to the notably Griffith and Sir Samuel Way. Deakin, Barton and (Governor of Victoria 1974 to 1982) and-commissioning-protocol Bar in 1877 at the age of Kingston put their case to the British public, at numerous 21. He took chambers in complimentary functions. In the event they compromised: Inset: A sketch study for the Temple Court but could appeals involving constitutional issues required leave of commission not get a brief. This gave the High Court, otherwise the right of appeal remained as ‘both delicate and lumpy, graceful him plenty of time to unimpaired unless further limited by the parliament of the and brutal, classical and misshapen’. write plays, poetry and essays until David Syme, editor Commonwealth. The triumphant trio danced ‘hand in hand’ Benwell’s bust of Deakin will be of The Age, gave him work as a journalist. Syme became in jubilation. In July, as he sailed home to a great welcome, unveiled in 2021 when Professor his patron. For the next few years, he worked in Syme’s an “Act to constitute the Commonwealth of Australia” Judith Brett, author of Deakin’s newspapers where he excelled, becoming the editor of received the royal assent. biography, will discuss his legacy. the weekly Leader. Aided by Syme, he was elected to A Some say Deakin’s speech in favour of the Judiciary Bill Its luminous white and blue glazed State Parliament in 1879. By 1884, Deakin was Solicitor- to establish the High Court in 1903 is our finest piece of ceramic will sit in a vitrine in the General and Minister for Public Works. In 1887, he led parliamentary advocacy. Peter O’Callaghan Gallery, near the Victorian delegation to the Imperial Conference in As the Member for Ballarat, Deakin was Attorney- the painting of another Victorian London. By 1890, his party was in Opposition. General in the first Australian parliament before serving barrister and Prime Minister, He lost the family fortune in the 1893 financial collapse three times as Prime Minister in 1903–1904, 1905–1908 Robert Menzies. and returned to the Bar to make a living. This time, he was and 1909–1910. Some have questioned why, in more successful. In 1896, he acted pro bono for Frederick Nick-named ‘Affable Alfred’, he walked, cycled or 2020, the Bar honours a man who Deeming, charged with murdering his wife. Deakin trammed into work from the family home in Walsh Street, played a key role in forming the unsuccessfully argued that Deeming was insane. Deeming South Yarra, engaging passers-by in conversation about White Australia policy. The Deakin was duly convicted and hung. According to London police, the issues of the day. His skill, during the tripartite party bust was commissioned by the Art & Deeming may have been Jack the Ripper. Deakin also system of Australia’s first decade, was bringing people Collections Committee in accordance acted for David Syme in a long running libel case, while a together to form coalitions to pass essential legislation. with the Peter O’Callaghan QC member of State Parliament. Deakin drafted the Immigration Restriction Bill Gallery Foundation’s Acquisitions Deakin’s main preoccupation during the 1890s was that introduced the White Australia Policy in 1901. It and Commissioning Protocol. The the push for Federation. He attended all the official was designed to stop Asian immigration with a near Protocol realises the Foundation’s Federal conferences and conventions and, in that time, impossible dictation test. All three parties supported it. objective to hold portraits of contributed to the shaping of the Constitution. In 1900, he Only two MPs spoke against it. The debates in Hansard members of our Bar who have represented Victoria in London in the final negotiations. demonstrate that Australians of British origin then attained certain high offices or The Deakin entry in the Australian Dictionary of felt they occupied an outpost of the Empire that was have distinguished themselves
Biography describes his contribution: images by david mcarthur for niagara galleries threatened by the ‘yellow peril.’ in the practice of law, or service London staged the final act of the Federation movement. One-hundred-and-nineteen years later we can and do to the Victorian Bar or the wider In January 1900 Joseph Chamberlain invited the colonies reconsider this history and Deakin’s part in it. community, whilst at the Bar. to send delegates for the passing of the Constitution bill Deakin retired from politics in 1913, suffering from Among the prescribed offices through the Imperial parliament. Allan McLean, Victorian dementia before his death in 1919. are the offices of Prime Minister, premier, appointed Deakin, who later in the month sailed Earlier this year, artist Stephen Benwell was Governor-General, Governor, for London with his wife, sister and daughters. Barton, commissioned to create a bust of Deakin. Influenced Premier and Commonwealth or State Kingston, Sir Philip Fysh of Tasmania and (Sir) James by 18th century Meissen porcelain and classical Greek or Attorney General. To this end, Dickson of Queensland made up the team selected to defend statuary, Stephen Benwell’s ceramics have been exhibited the Foundation has commissioned the Constitution to the last comma. In the end differences and sold internationally for many years. His most recent portraits of James Gobbo (Governor came down to clause 74, which forbade appeals to the works have been forlorn male nudes that echo the 4th of Victoria 1997 to 200) by Brook Privy Council in matters affecting the interpretation of century BC figures by Lysippos and Praxiteles that were Andrew and Alex Chernov the Constitution. At first Chamberlain deleted the whole once brightly coloured but now sit in museums in white (Governor of Victoria 2011 to 2015) clause. In this he was fortified by the defection of Dickson, marble or plain bronze. by David Rosetsky. It is progressing the wavering of some colonial premiers—to whom he had Commenting on Benwell’s 2013 retrospective exhibition commissions of Linda Dessau appealed—and the devious conduct of several chief justices, at Heide, The Age critic Robert Nelson described his work (Governor of Victoria since 2015)
70 VBN VBN 71 news and views news and views news
Congo Tales by Pieter Henket PHOTO2021 AT THE PETER O’CALLAGHAN QC GALLERY
SIOBHAN RYAN
interviewed the Dutch photographer Pieter disease and conflict. TheTales of Us team, comprising Henket at his home in New York City via the founder Eva Vonk, Henket, Kovo N’Sonde (a Zoom, as we do these days. It was Polling Day French-Congalese artist and philosopher), Said Abiter in the United States of America, and New (art director) and Roger Innis (production designer), York City had already begun “boarding up” in and a truckload of equipment travelled 17 hours from anticipation of unrest. The previous evening, the capital, Brazzaville, by 4WD, ferry and punt for a Henket had got chatting with some young Latinos. They photo shoot which had been four years in the making. were equivocal about voting, but he thinks he talked them Contacts were made, stories gathered and translated, the round. If they made good on their promises, it meant villagers schooled in performance, and costumes and sets seven or eight more votes for Joe Biden. New York will go designed. Tales of Us required that the shoot be of the toI the Democrats. “It always does,” says Henket, but every same high production standard expected of the glossy vote counts. magazine and celebrity shoots which Henket is used to Three years ago, Henket was thousands of miles and a working on, which meant lugging cameras, lighting and cultural-world away from New York, in the Congo Basin gear to the site and having generators brought in. This as the guest of the people of Mbomo, a remote district in was unprecedented for the Mbomo people, most of whom the Odzala Rainforest. He was part of an international had only experienced photography on rare visits to an crew commissioned to make a visual record of the stories, old-style photographic studio in town, to pose stiffly in myths and legends of the area, which have traditionally front of hand-painted sets. been handed down orally. The result is uncompromising. Deceptively simple It is said that when an elder dies, a library burns to costumes and masks fashioned from the local flora the ground. This adage is the impetus for the Tales of bring the myths to life. The photos are seductive and Us project, whose mission is to preserve the lore of lush—qualities which match the richness of the tales threatened cultures by having the people stage their own and the magnificence of the rainforest environment. stories, in their own environment, and having portrait The cast, drawn from the villagers, inhabit their parts. photographers photograph the event. For all this lushness, however, the tales have a harshness In the Congo Basin, the tradition of communicating which is true to the lives and the environment of their
Pieter Henket, ‘Bird’ from the history and lore through storytelling has been threatened protagonists. Stories such as the Murder of the Elders, a series Congo Tales, 2017. © Pieter Henket by the impact of modernisation and of lives lost through sorry tale about rebellious youth, and The Little Fish and
72 VBN VBN 73 From the The Story of the Little news and views Fish and the Crocodile series.
the Crocodile, in which friendship is sacrificed to primitive urges, demonstrate that oral traditions are news and views news the foundations of a society’s morals and ethics. Henket and the team travelled back to Brazzaville in 2018 to show Congo Tales to the Mbomo villagers and the people of the Republic of Congo. Since then, the suite has been shown at the Barberini Museum in Pottsdam, Germany, the Museum De Fundatie in Zwolle, Netherlands, and the Howard Greenberg Gallery in New York City, United States of America. Six photographs from the series were recently acquired by the Netherlands’ Rijksmuseum. Next February, Congo Tales comes to the Peter O’Callaghan QC Gallery as part of PHOTO 2021, a biennial International Festival of Photography, for which the Bar will partner with government, educational and cultural institutions, as well as commercial galleries, to present a city-and-state- wide immersion into photography with the theme of Truth.
Gluttony Partners in Crime ‘Father Bosco,’ The Murder of the Elders
Pieter Henket
From the The Story of the Little 74 VBN Fish and the Crocodile series. VBN 75 BAR Politics This is not to downplay Michie’s particular interests was phrenology— newspapers including the London Michie served as a member of the Victorian Parliament skill. He was a brilliant barrister. In the examination of the skull to Times under the byline “Letter from from 1852 to 1872 and was at times the Minister for his obituary in The Argus of Friday 23 determine human behaviour, especially Melbourne”.
Lore Justice and Attorney-General. June 1899, he was described as having to diagnose criminal tendencies. Michie died on 21 June, 1899 at bar lore Michie’s political views were at the forefront of “a quick eye for the weak points in an Although long since discredited, the St Kilda, aged 87. He had lived in progressive thinking of the time. He was a staunch opponent’s case”, a humorous style, study of phrenology was at the time Alma Road, at the intersection with supporter of both Victorian and Australian independence and “a clever knack of raiding a laugh considered a thoroughly modern Hotham Street and just across the SIR ARCHIBALD MICHIE QC: from Mother England. He even spoke in favour of a at the expense of a witness whom from of scientific analysis, in that road from St Kilda Cemetery, where motion that, if Great Britain were to declare war, the he wished to disconcert”. It is hardly it treated certain parts of the brain he was buried. The house is still Australian colonies should be permitted to remain surprising that, in 1863, he became as controlling specified personality standing. On Michie’s death, he did Victoria’s first neutral. Victoria’s first QC. traits. It was a precursor to psychiatry not have far to travel to be interred. In 1858, on a debate to extend the voting franchise But, if Michie had a fault, it was and psychology and formed part of Queen’s Counsel to every male person over the age of 21 years—not just that he could be too severe in his a reformist movement to demystify Joan Rosanove QC property owners and those with a miner’s licence— cross-examination. In one insurance and explain criminal behaviour. So, Sir Archibald Michie was Victoria’s Michie was the only parliamentarian to argue that the case, the plaintiff was a handsome the reasoning went, if a person’s head first QC and, obviously, Victoria’s first DANIEL AGHION* vote should be extended to females as well. He said that young woman and widow of a young (and therefore their brain) contained male QC. We had to wait until 1965, “he knew many women who were in every respect much naval officer who had been well certain physical features, then: (a) their more than 100 years later, to see the better fitted for the exercise of any franchise than many known in the colony. A modern criminal behaviour was not a matter appointment of Victoria’s first female In normal times, the Friends of St Kilda Cemetery Inc (FOSKC) of the members of the male sex”. barrister would describe a witness of personal choice, but an accident of QC, Joan Rosanove. run regular tours of St Kilda Cemetery, including tours of the But he could also be frustratingly inconsistent. One like that as uncross-examinable. birth; and (b) the person was capable There is insufficient space in this graves of famous lawyers and judges. The first lockdown of the big issues of the day was freedom of trade. A fire occurred in her house, and of reform by retraining to behave in a article to consider the life of this meant that there was no chance to run a tour of the graves of Michie voted sometimes with the free traders and other Michie’s client—the insurer—refused socially acceptable manner. formidable barrister, who at her peak lawyers and judges in Law Week. The FOSKC committee put times with the protectionists. When challenged on this to pay. So she sued. Michie was inspired by John was said to handle one-in-eight of all a ‘Zoom’ proposal to the Victorian Bar, and the rest is history. inconsistency, Michie said, “Tariffs are not protectionism, Michie cross-examined the plaintiff Stuart Mill—the leading English divorce cases in Victoria. It would be The speakers were excellent, and there was plenty of good provided that the tariff is appropriately low.” so heavily that she burst into tears in philosopher of the time—and was a remarkable coincidence if St Kilda material with which they could (and did) work. The FOSKC Michie’s time as a politician was not continuous. In 1863 the witness box. It was no surprise friends with Charles Dickens—the Cemetery were the resting place of is grateful to the Victorian Bar for the Bar’s encouragement for example, Michie lost the seat of St Kilda. Gavan Duffy, when the jury delivered a verdict for great author. In Australia, he was Victoria‘s first female QC as well. and support. Over 120 people joined our Zoom tour—and we later Premier of Victoria, said that it was because Michie the woman, against the insurer. an early supporter of the great But it is not to be. Rosanove died at hope to do it again next year. neglected his electorate. In 1873, Michie bought a building Australian naturalist painter Eugene Frankston in 1974 and was cremated. at 73 Chancery Lane and established von Guerard. In 1866, Michie But there is a connection to St Kilda, ir Archibald Michie QC, buried at St Kilda Law it as chambers for a number of purchased and gifted a painting nonetheless. Rosanove’s grandfather, Cemetery, was a thoroughly modern man. If Michie neglected his constituents, he certainly did not barristers. It was named ‘Michie’s to the National Gallery of Victoria David Braham, is buried at St Kilda He was born in London in 1813, the son of a neglect his clients. He was a highly successful barrister Building’—modesty was obviously “Spring in the Valley of the Mitta Cemetery. He was a lawyer too; his merchant. He became a barrister in England and at his peak earned £8,000 a year, an enormous sum of not one of Michie’s traits. Chancery Mitta with the Bogong Ranges”. time in Melbourne coincided almost in 1838 and then in New South Wales in 1840. money at the time. Lane still exists, between Collins This was the first of von Guerard’s exactly with Michie’s. I have no doubt In 1855, together with other leading barristers of the and Little Collins Streets, and Queen paintings to enter a public collection they knew each other and crossed Early years day, he volunteered without fee to defend the 13 and William Streets—behind the and it was the modern art of its day. professional paths regularly. Braham SMichie was an early activist against the Eureka rebels who had been charged with high RACV Club. Chancery Lane around Michie was even part-owner of a is interred in the Jewish section in transportation of convicts. In 1849 in treason. One of Michie’s two clients, John that time was home to a warren newspaper, the Melbourne Morning the south-western corner of St Kilda Sydney, he spoke at a rally against the Manning, was a reporter at the Ballarat Times. of lawyers, but also Graham’s Herald and General Daily Advertiser. Cemetery, just across the road from practice. His efforts assisted in ending He reported on the government attacks on slaughterhouse and the Victorian Michie may have been a brilliant Michie’s old house in Alma Road. transportation the following year. the miners’ stockade and is described as Cream and Butter Company. The speaker, but he was a terrible In that indirect way, St Kilda Together with his wife Mary, he Australia’s first war correspondent. They were butter company in particular used business manager: he sold out within Cemetery has a connection to returned to England. Soon afterwards, both acquitted, along with almost all of their to pour tons of buttermilk waste two years at a huge loss. Nonetheless, Victoria’s first male QC and to its first they migrated to Canada, then back to co-accused. into the surrounding laneways daily. the paper survives to this day—albeit female QC as well. Sydney and finally in 1852 to Melbourne. It appears that Michie did not have much work The butter company’s excuse was in significantly modified form—as the * This article was first presented as They arrived only one year after the colony to do in the Eureka trial. A contemporary report that if they kept the water running Melbourne daily Herald Sun. a speech in “A Legal Zoom into St was proclaimed. recorded that the first acquittal came early. It was cheered it would wash away, and buttermilk Kilda Cemetery”, a presentation on The Michies were close to the A’Becketts, a leading in the court and in the streets, and it was obvious what only smells if you let it lie around Later years 22 May 2020. The presentation was legal family of the day. Michie was friends with the first verdict the jury would deliver for the rest of the accused. in stagnant pools! But that was the From 1873 to 1879, Michie served in hosted by Rob Heath QC of Friends Victorian Chief Justice, Sir William A’Beckett. When The defence barristers apparently wandered off into Melbourne of Michie’s time. London as agent-general for Victoria of St Kilda Cemetery, and was given Michie arrived in the colony, he served as associate to other courts to attend to more profitable business. They and was knighted for his service. alongside speeches by three other William’s brother, the solicitor Thomas Turner A’Beckett. had to be called back to the Eureka trial to criticise A person of arts and letters He then returned to Melbourne Victorian barristers. It has been Michie and Mary’s daughter Isabella married Thomas’s evidence that they cheerfully admitted they had not even Michie was a lecturer, an author, and practised as a barrister, but it is slightly modified for publication in son Thomas Junior, who became Sir Thomas A’Beckett, a been in court to hear! They knew they could rely on the a patron of the arts and a man of said—with “no flashes of the old fire”. Victorian Bar News. judge of the Supreme Court of Victoria. jury to acquit the remaining accused—and the jury did. modern cultural tastes. One of Michie’s In his retirement, he wrote for the
76 VBN VBN 77 OF bar lore bar lore THE HISTORY THE
VICTORIANSIOBHAN RYAN istory waits for no-one and nor does its telling. In VBN 166, we published a preview of Dr Peter CHARACTERS Yule’s manuscript (working title, History of the Victorian Bar), which recalled the treason trials of the Eureka Stockade. We continue this series of extracts with an overview of the History, focusing on characters and vignettes. All portraits (except Redmond Barry’s) are from the & VIGNETTES Victorian Bar’s collection in the Peter O’Callaghan QC Gallery. BAR CHAPTER 1THE PORT PHILLIP BAR, 1838–1851
H THE ORIGINS OF THE VICTORIAN BAR REDMOND BARRY Dr Yule’s work is a complete history, from the Colonial Bar (1835–1880) The son of a veteran of the Napoleonic Wars and one of another Indigenous man, Barry contended, “That there is to the Modern Bar (1980–2020). It commences with the first sitting of 13 children, Redmond Barry was born in County Cork, nothing in the establishment of British sovereignty in this the Supreme Court on 12 April 1841 in an unassuming building on the Ireland, in 1813 and graduated from Trinity College, country which authorizes our submitting the aboriginal south-west corner of Bourke and King Streets. The ‘Supreme Court’ is Dublin, before gaining his legal qualifications at natives to punishment for acts of aggression committed ‘inter the Supreme Court of New South Wales for the District of Port Philip: Lincoln’s Inn, London in 1839. He sailed for Australia se’”. Barry, and for that matter Justice Willis, questioned the same year, with his fellow passengers on the the jurisdiction of the court over Aboriginal people. Citing A large number of Melbourne’s inhabitants attended to witness the Calcutta, including James Croke, the soon to be crown Blackstone, Barry argued that British dominion was not historic occasion. Since soon after the foundation of the town in prosecutor. Barry was accepted at the New South Wales acquired through conquest but by “occupancy alone”, which 1835, the settler-colonists had called for a permanent legal body to Bar but chose instead to look to Melbourne for his did not confer British sovereign power over the original administer justice. Finally, the day for the establishment of the Supreme future prospects. Those prospects famously included inhabitants, “unless there be some treaty or compact”. Court of New South Wales for the District of Port Philip had come. presiding over the trial of the bushranger Ned Kelly, 40 Despite Barry’s plea, the unusual trial proceeded without In the converted court house, the Act for the prevention of ‘vice and years on, and dying within days of Kelly’s execution. resolving the question of jurisdiction, until the prosecution immorality’ was read, the authority of the Court was proclaimed, and the In an earlier, less celebrated role, Redmond Barry abandoned the case. Bonjon was released, but within a few Irish Judge Walpole Willis was ceremoniously sworn in. was appointed Standing Counsel for Aborigines. years he was killed in revenge. The crown prosecutor, James Croke, and four barristers, including a Douglas He was a strong advocate for Aborigines who were charged It is not well-known that aboriginal sovereignty young Redmond Barry, were admitted on that day. As Yule notes: Menzies, under alien English law and tried before a jury made up of was argued by Redmond Barry well over a age 33, by Archibald After the oaths of allegiance were completed, the Port Phillip Bar, the colonists in the Supreme Court. In R v Bonjon, a trial where century before modern land rights cases Colquhoun forebear to the modern Victorian Bar, was created. Bonjon, an Indigenous man was accused of murdering dismantled the terra nullius doctrine.
78 VBN VBN 79 Maurice Ashkanasy by JH Spooner
at the goldfields town of Carisbrook in 1859 included: sentenced to 28 months’ hard labour; CHAPTER 4 » John Jones, charged with highway robbery: sentenced to » Two Chinese, Ah Ching and Ah Sing, pleaded THE HOME GROWN BAR nine years’ hard labour; guilty to an assault: fined and released—the THE COUNTY COURT ON CIRCUIT » Charles Phillips, alias Earle, indicted for embezzling £1: Maryborough and Dunolly Advertiser reported: acquitted; “[A barrister], Mr M’Donogh called his Honour’s IN 1859 » A man charged with obtaining goods under false
bar lore attention to the heavy chain to which the prisoners Contemporary court reports, which were faithfully pretences, the goods in question being a cup belonging to were manacled” stating that “It was contrary to the reported in the newspapers as much for entertainment as the Tallaroop Racing Club: acquitted; spirit of British law, which presumed every man for information, provide vivid insight into Victorian life. » Three siblings charged with stealing drapery from a shop innocent until proved to be guilty.” For example, the case load of the County Court on circuit at Back Creek: two acquitted, with the third convicted and
Two future chief justices of the High CHAPTER 9 LIFE AT THE BAR 1891–1914 Court, John Latham and Owen Dixon, both came from humble backgrounds. but was still able to support his wife Charles Lowe Latham’s father was a tinsmith, who THE FORTUNATE and 10 children by running a store by Judy Cassab founded the Victorian Society for the c 1965 in Panmure, another small Western AND THE FAILURES Protection of Animals and became its District village. Lowe walked five The History of the Bar well salaried secretary. John Latham won miles each way to attend a school illustrates how history repeats itself. a scholarship to Scotch College and where he could complete sixth CHAPTER 10 THE BAR AND THE Chapter 9, “Life at the Bar 1891– then completed a BA at the University grade. He then won a scholarship 1914”, commences: of Melbourne, spending several years FIRST WORLD WAR to Surrey College, a long-defunct teaching at the Hamilton Academy There is nothing better for business Melbourne private school, but was before returning to university to study AND CHAPTER 13 THE BAR AND at the Bar than a runaway economic forced to leave the school after three law. Like other less privileged law boom, followed by a dramatic years to help support his family. Like THE SECOND WORLD WAR students, he supported himself by economic crash. The 1880s boom Cussen, he worked as a teacher while tutoring. Although Owen Dixon’s father and the bust of the early 1890s were he completed matriculation and THE BAR AT WAR was a barrister, his practice was never Dedicated chapters describe Victorian barristers’ wartime good times for the Bar. Work was the university law course. Hayden large and he struggled with depression, experiences. The First World War recount is predictably poignant. plentiful and the number of barristers admitted in Melbourne in 1880, but Starke’s father was a doctor on the alcoholism and increasing deafness At least 20 barristers (about one quarter of those in active in active practice grew from perhaps found that “attendance at the courts goldfields, who died when Starke before leaving the Bar in 1895 to practice at the time) joined the armed forces. Five lost their lives. 50 in the 1870s to about 80 in 1890. … and speeches for political societies was six, forcing his mother to work become a partner in his brother’s firm of Dr Yule quotes from Eugene Gorman’s previously unpublished brought him not a single brief”. He as a postmistress to support her And, of course, the good times did solicitors. Owen Dixon was educated at autobiography and reveals an interesting decision on court wrote to his brother that, “Trying to family…. Frederick Mann was born not last: Hawthorn Grammar School, where he etiquette: get business here as a stranger is like in Mount Gambier, where his father developed a life-long love of the classics, The Victorian economy hit rock attacking the devil with an icicle.” was a telegraphist, and was educated Eugene Gorman, who had signed the Bar Roll in March 1914, enlisted but paternal pressure and the need to bottom in 1893 and recovery was at the local state school until his in 1915, “not from any heroic considerations but because I felt it was A remarkable number of the earn a living pushed him towards the painfully slow. For the entire period family moved to Melbourne. Mann impossible for me to continue in practice while so many men were Victorian Bar’s most famous names law. His dream of studying classics at 1893–1939 the economy was weak, worked as a tally clerk and later a giving up greater prospects.” He recalled that when he was in camp came to the Bar between 1880 and Oxford was supplanted by the reality unemployment high, and growth clerk in the Crown Law Department with the 22nd Battalion at Broadmeadows, he received a brief to 1914, most notably Leo Cussen, of articles with Crisp & Cameron in minimal. Brief periods of expansion while completing his schooling and appear as junior to Herbert Bryant in a Supreme Court case. The army Charles Lowe, Hayden Starke, Collins Street. before and after the First World War studying at Melbourne University. gave him leave to appear, but he was uncertain whether he should Frederick Mann, Henry Winneke were offset by the catastrophes of the Henry Winneke’s father was a gold appear in uniform or in wig and gown. Bryant asked the Chief Justice, (Snr), John Latham and Owen war and the depression of the 1930s miner on the declining gold field Owen Dixon Sir John Madden, who “spoke of King and Country and went on to Dixon. None of these barristers by Archibald so that real income per head was only of Talbot and young Henry was Colquhoun c emphasise that the costume in which a young hero was prepared to came from privileged backgrounds: slightly higher in 1939 than it had educated at the local state school 1961 die … was obviously fit to be worn in court.” So Gorman appeared in been in 1890. The economic malaise Leo Cussen was the son of an Irish before winning a scholarship to the uniform of a private soldier, “creating an unusual precedent and, was reflected at the Bar. Catholic shopkeeper in the tiny Dookie Agricultural College at the more important, receiving the fee which I sorely needed”. Western District town of Merino. age of 13. Uninterested in a farming This chapter recounts the fortunes After officer training, Gorman went to France with the 22nd Cussen won a scholarship to career, he then won a scholarship and misfortunes of barristers Battalion, being awarded the Military Cross after the Battle of Hamilton College and then graduated to Scotch College where he shone who made it and those who did Bullecourt in 1917. He was offered the chance to leave the front in engineering from the University of both as a scholar and sportsman, not. Their concerns described in line for a desk job but rejected it. Melbourne, working for the Victorian being dux in 1892 and 1893. Further letters and diaries are touching and During the Second World War, barristers were not classified as Railways for several years before scholarships paid his way through familiar: essential workers and were liable to be conscripted. Forty saw studying law. Charles Lowe’s father university. active service and others held significant administrative roles in Patrick Glynn, an Irish barrister, was was a teacher, who lost his sight Australia and abroad.
80 VBN VBN 81 Henry Winneke (Jnr) was recruited in a small boat, with his war service During the First World War and for came to the Bar, who were born in Europe to the RAAF the day after the war record reporting that he was ‘MISSING part of the Second, a scheme was CHAPTER 15 and came to Australia as refugees from the began and rose to be Director of believed sailed from MALAYA’. It was not put in place by the Bar Committee to A CHAT BETWEEN Holocaust. Most were educated in state
Personal Services with the rank until early March that he arrived in Perth preserve the practices and provide primary and high schools. bar lore of group captain. In this role he after an adventurous journey through some income for barristers on war THREE OR FOUR Michael Rozenes, Henry Jolson, Ray went to England in 1943 where he the Dutch East Indies, which were also service:
bar lore Finkelstein and Mary Bacynscki were negotiated an agreement with the under heavy attack by the Japanese. As OLD BOYS OF THE Solicitors were asked “to continue also among the refugee cohort. British Government on the conditions assistant adjutant-general with the rank to place the name of the Counsel so Alex Chernov, was born in Lithuania of of service for the thousands of of lieutenant-colonel, Ashkanasy served PUBLIC SCHOOLS absent on briefs and papers, together Russian parents. He arrived in Australia Australians serving in Bomber successively with III, I and II Corps, and with the name of another Counsel AND CHAPTER 18: in the late 1940s speaking no English, Command. Sadly, two of the three New Guinea Force until he ceased active (who is desired to do the necessary as did Remy van de Weil, whose family Victorian barristers who were killed duty in September 1944. It was not until work) and deliver such briefs and THE WINDS OF came from Belgium. John Kakar, in in the Second World War had read 7 September 1944 that he was able to papers to the clerk of the Counsel so whose family were from Palestine with Winneke: James Mann (in 1938) announce his appointment as KC in the CHANGE absent … Counsel to whom any such (first language Arabic, second language and Harry Lawson (in 1938): State Full Court. brief is delivered will hold the same on he composition of the Bar is French), came to Australia in 1964, The son of the Chief Justice, Sir John Starke, the son of Hayden behalf of such absent Counsel, and will examined over two chapters. The working in factories while he learnt Frederick Mann, and Victoria’s Rhodes Starke of the High Court, signed the so announce on appearance in Court, dominance for much of the Bar’s English and completed his schooling. Scholar in 1935, James Mann had a Bar Roll in 1939 and enlisted in the and will on payment of the fee marked history of white Anglo-Saxon T Peter O’Callaghan brilliant scholastic career before going AIF the same year: on such brief, forthwith pay a sum Protestants educated at the leading private by Rick Amor to the Bar. He enlisted early in the war equal to one third thereof to the clerk schools is undeniable, but there were Always an independent iconoclast (like and was a lieutenant in the artillery of the Counsel so absent.” significant exceptions such as Cussen, his father), the first entry on his service Leo Cussen by John when he was drowned during the Longstaff c late 1920s Lowe, Starke, Mann, and Gorman. record shows that in January 1940 he evacuation from Crete in May 1941 Australia’s first Australian-Chinese was admonished for “disobeying a after giving up his place on a life raft to barrister, William Ah Ket, was born in lawful command given by his superior another man. Wangaratta, one of eight children of officer” and the second entry records a Chinese immigrants of the Goldrush Harry Lawson, the son of a former 15 shilling fine for being absent without CHAPTER 14: era. A Supreme Court Prize winner, he premier, enlisted in the RAAF soon leave. Nonetheless, he was soon signed the Bar Roll in 1904 and practised after he was married in June 1940. promoted to bombardier and in August THE GOOD successfully for over 30 years but never After pilot training in Australia 1940 to lieutenant. From May 1941 his attained silk or a judicial appointment. and Canada, he had just joined 42 unit was on active service in the Middle TIMES 1945– It was not until the 1970s that the next Squadron RAF when he was killed in a East, where, in addition to his military 1980 barrister of Asian origin came to the Bar. flying accident in November 1941. duties, he represented many soldiers IRISH CATHOLICS [Eds: see page 68 for more on William Ah in courts martial, including two who Brian Bourke, Peter O’Callaghan, Gerry The third barrister casualty was POST WAR Ket’s fascinating story.] were facing murder charges. His unit Nash and Frank Vincent were sons of Philip Jacobs. A sergeant in the returned to Australia early in 1942 when PROSPERITY working-class Irish Catholics, which put 2/21st Battalion of the 8th division, he IMMIGRANTS AND Australia was threatened with invasion Unexpectedly, for reasons which them in another ‘outsider’ cohort: was taken prisoner by the Japanese and was sent to the Northern Territory are explained in the History, the REFUGEES at Ambon in January 1942 and died in Frank Vincent was born in Port Melbourne in for several months before beginning period of post-war prosperity There has always been a significant Jewish captivity on 27 July 1945. 1937 in a poor Irish Catholic working-class jungle training. In 1944 Starke trained extended to the 1970s. This presence at the Victorian Bar, with Isaac The survival stories are both family. His father was “for practical purposes, as a naval bombardment observer and happy circumstance is summed Isaacs, Maurice Ashkanasy and Bill Coppel inspiring and horrifying: unemployed. He was picking up odd jobs was then sent to New Guinea, where up in a quote from James Gobbo being in the front ranks of any listing of around the place”. When Frank was two, the Maurice Ashkanasy was 38 and about he served on a succession of Australian AC QC: the Bar’s greatest names. After the Second family moved to Burnie in Tasmania where to take silk when he volunteered for the and American war ships during 17 World War there was a steady stream of The post-war decades were a his father joined the Waterside Workers’ AIF in July 1940. Made a lieutenant on operations in the last year of the war, new Jewish barristers coming to the Bar, wonderful time to go to the Bar. Federation and got work on the wharves. After the basis of his experience in the CMF, recalling that “It was a bit scary once beginning with Charles Jacobs, who signed When James Gobbo returned two years he transferred back to Melbourne he was quickly promoted to captain the Kamikaze boys started in”. He the Bar Roll early in 1946. He was followed from Oxford to go to the Bar in and the family lived in Port Melbourne where and then major during 1941. He was was discharged in February 1946 with by Sam Cohen, Bill Kaye, Leo Lazarus, Phil 1957, he recalls that a “confident Frank went to the local Catholic parish school. attached to the headquarters of the 23rd the rank of temporary major. After his Opas, Ken Marks, Abe Monester, Jack young barrister said to me, ‘You His parents were “absolutely convinced that Infantry Brigade in the 8th division, and appointment to the Supreme Court in Lazarus and, from a later generation, Jeff can make a living just by staying the way out was through education and they embarked for Malaya in February 1941 1964, Starke wrote to the Department Sher, Alan Goldberg, Ron Castan, Ron Merkel on your feet. If you can talk at the had the illusion that I was a very smart young where he was soon appointed deputy of Defence asking for a new set of and many more. Most came from well-off same time, you’ll make a bloody boy.” When he was in about 4th grade, “my assistant adjutant-general to General medals as he needed them as part of families and had been educated at the fortune’.” Mother won some money at the trots and Gordon Bennett, the commanding officer the ceremonial regalia of a judge. He leading Protestant private schools. However, with that money booked me into the Christian of the division. Following the fall of had never worn his original medals and beginning with George Hampel in 1958 a Brothers over in Middle Park.” Singapore, he escaped with a few others was unable to find them. Alex Chernov by David Rosetsky c 2018 very different cohort of Jewish barristers
82 VBN VBN 83 Ninian Stephen Corner Poetry by Rick Amor c 2006 WOMEN CHAPTER 18: Only three women signed the Bar Roll before RADICALS
1945—Joan Rosanove, Beatrix McKay and bar lore Margery King—but the obstacles were too AT THE BAR A Perry great for any of them to build a practice. After bar lore developing a successful solicitor’s practice, BARRISTERS AS Christmas carol Rosanove returned to the Bar in 1949, and in AGITATORS 1965 became the first Victorian woman barrister MAX PERRY Prosecuting me was Sir Ninian to take silk. By 1970, seven more women had Radicals at the Bar Stephen as the junior QC. He Jail the widow, smite the orphan signed the Bar Roll: Norma O’Connor in 1954; commences with the stories of was a friend of mine, and it do it with forensic zeal Gladys Hain in 1954 (at the age of 67, having communist barristers Ted Hill, was the role of the junior silk if their cries are really heartfelt attained her law degree only after her barrister Ted Laurie, Jack Lazarus, and to prosecute a case like this. I there is always an appeal husband’s death); Allayne Kiddle in 1959; Mary Ken Marks: attended and the hearing took Drive them weeping from the building ‘Molly’ Kingston in 1962; Anne Curtis in 1963; The 108 pages of Ken place in the Essoign Club … I spurn their pleas for help or care Lyn Opas in 1967 and Paulette Parkinson in Marks’ ASIO file was trivial don’t know what happened–I remember: if they don’t have money 1968. Each of their stories is told in the History, in comparison with the 14 was present in body, not in there is nothing left to share including this anecdote about Allayne Kiddle: volumes covering the years mind. The last thing I remember ignore reports whenever written She certainly appeared on several occasions as 1948–81 during which ASIO was Lou Voumard as Chairman by the well-intentioned throng junior to Phil Opas, and their work together led to trailed Jack Lazarus. acquitting me, and saying they themselves have not been bitten a strange postscript to her time at the Victorian that the Bar needed more Phil by the crims who do us wrong Yule’s focus then turns to the Bar. In 1966 Allayne asked to be placed on the Opases, not one fewer. However, ignore the cries of weeping parents Bar’s advocacy against the non-practising list and she and her husband I felt rejected, depressed, or the pleas de factos raise death penalty. The commitment returned to London where she began studying for isolated, and I decided to leave they have spent the wee small hours and sacrifice of the defence an LLM at the LSE. Her studies were interrupted the Bar at the first opportunity. seeking things that they can praise barristers was always personal when Opas asked her to appear as his junior in the assess instead the client’s demeanour and sometimes financial. In A similar despair led to Frank application for leave to appeal to the Privy Council as he stands inside the dock the aftermath of Ronald Ryan’s Vincent temporarily leaving in the attempt to save Ronald Ryan. guarded by two sturdy warders execution in 1967, Phil Opas was the Bar and exercising his and the chains which they can lock The 1970s saw an exponential rise in numbers charged by the Bar Council of considerable experience impose instead mosaic sentence— of female barristers. Forty-five signed the unprofessional conduct because and talent defending for Scripture gives you great support Bar Roll between 1970 and 1979, including he had made a public appeal Aboriginal Legal Aid: and if you hang them fast enough Rowena Armstrong, Jan Wade, Linda Dessau, for a solicitor to instruct him in At one time, devastated their appeal will come to nought Margaret “Peg” Luscink, Ada Moshinsky, Mary the appeal to the Privy Council. after losing a murder trial in Think always of the basic precept Bacynscki, Betty King and Lillian Lieder. The call out to solicitors was said Melbourne, he temporarily “left that imbues our current law by the Ethics Committee to be the Bar and I went to work at “if you hit them hard enough touting. Opas is quoted: Betty King by Victorian Aboriginal Legal Aid the bastards won’t come back for more” Raelene Sharp I took that very personally. I and then I left Victoria and I battery is best inflicted was depressed. I thought, if my went to Alice. I stayed there with profound and hearty zest colleagues think so poorly of for some months, just working after all, the average client me, as to charge me in these with Geoff [Eames] and is nothing but a selfish pest circumstances, I’m prepared to Central Australian Aboriginal and for those this prose offends leave the Bar. I’m not going to Legal Aid and then decided and who seem likely to react defend myself. A number of my really, I couldn’t hide and I commit to memory if you’re able friends waited on me and said, came back, and resumed at sections 5 to 8 of the Sentencing Act “You’ve got to defend it. Let us the Bar.” appear.” I finally said, “alright, The immense achievements so long as I take no part. I’m not of Victorian barristers in going to give evidence, I’m not legal aid and pro bono work going to give an explanation, I’m makes fascinating reading not going to say a thing.” for the horror, the humour Max Perry was called to the Bar in 1976, mere months after his date of admission. He is Dr Yule continues to write in lockdown and his Richard McGarvie appeared for and sheer diversity of human the author of Advocacy - a survival guide. The Age has described Perry as “a criminal finished work will take theHistory of the Bar me, with Ivor Greenwood as his experience. barrister, and no mean wit”. Reflecting on Rumpole of the Bailey after the death of Leo up to the very interesting and trying times of the junior … McKern in 2002, Perry said, “Rumpole provided exquisite laughs and a rueful reflection present. upon life at the Bar.” Such terms could be applied to the poetry of Max Perry himself.
84 VBN VBN 85 back of the lift
story of the lives and characters of coffees from Brunettis and Speck, is her colleagues at the Bar and in individuals. well known. He has been a champion private practice. After 14 years at His Honour’s intellect is matched of many juniors and women Minter Ellison (including four in back of the lift back by his generosity of spirit. He has barristers in particular and delights the construction team), her Honour always taken most seriously his in the achievements of those he has was called to the Bar in 2005 and role as mentor to those more junior informally and formally mentored. quickly carved out a practice as than he. As president of the Tax Bar His Honour also has quietly one of Australia’s pre-eminent OF Association, he worked tirelessly advocated for various social and construction juniors. She read with Back THE lift to promote the interests of junior environmental causes throughout his Matt Connock (as his Honour then barristers. He has never closed his career, and his appointment no doubt was) and joined level four of Joan In this Back of the lift section of the Victorian Silence All Stand door to those who have sought his will be feted by Victoria’s population Rosanove Chambers, now level 21 of Bar News, the Bar acknowledges the guidance and has freely given his of greater glider and Leadbeater’s Owen Dixon Chamber West. Justice appointments, retirements, deaths and other time to the University of Melbourne possums amongst other wildlife. Connock has continued to act as a honours of past and present members of our Bar. where he has lectured in the It is also well known that his mentor, now assisting her Honour to Master’s program for over a decade, Honour moonlights as a cow farmer settle into life on the bench. continuing even after his judicial and anyone who has worked with Justice Stynes reminisces fondly Silence All Stand 86 appointment. him has been subjected to a barrage on her work at the Bar, where High Court of Australia 86 High Court of Australia His Honour’s work ethic, intellect, of images of his favourite bovine she valued the straightforward, The Hon Justice Simon Harry Peter Steward 86 and commitment to duty will no subjects. Whilst to the casual observer hardworking nature of those in doubt see him make an outstanding one image of a cow might seem much the construction industry and Supreme Court of Victoria 87 The Hon Justice Simon Harry Peter Steward contribution as a justice of Australia’s the same as the next, his Honour is practice area alike. “I loved the The Hon Justice Jim Delany 87 Bar Roll No 3324 highest court. adept at noticing minute differences subject matter,” her Honour says, The Hon Justice Katie Stynes 87 LISA HESPE (and pointing them out at length to “and dealing with experts and the ustice Steward has been an outstanding practitioner of the County Court of Victoria the listener, if permitted). His Honour industry people involved. They are law over the entirety of his career. He graduated from the Her Honour Judge Fiona Todd 88 is also rabidly passionate about the people of the highest calibre in their University of Melbourne with a Bachelor of Laws with First Supreme Court of Her Honour Judge Sarah Leighfield 88 Richmond Football Club, and the two field, with a genuine interest in Class Honours. As a solicitor at then Mallesons Stephen Jaques, His Honour Judge David Purcell 89 J Victoria Christmas gifts that he has been most improving the service they provide.” he came to specialise in revenue law, and became known for his Her Honour Judge My Anh Tran 90 excited about to date were a DVD of Of course, the same could be said of sharp intellect, earning him the epithet “Your Honour”. After being Sharon Burchell 90 Richmond’s 2017 Grand Final success her Honour. called to the Victorian Bar in 1999, he quickly established himself The Hon Justice and a dubious perfume released by Justice Stynes’ appointment is Magistrates’ Court of Victoria 90 as a preeminent junior, appearing regularly in the Federal Court Jim Delany the Richmond Football Club. The DVD also an historical one: as best the Other appointments 90 and High Court with the likes of David Bloom, the late Brian Shaw, Bar Roll No 1968 was viewed, immediately, on Christmas authors can discern, no member of Michelle Gordon, Tony Pagone and Alan Archibald in landmark afternoon (this ritual was repeated our Bar has ever been appointed to tax cases such as Linter Textiles, Stone, Citylink, McNeil, Bluebottle ustice Delany was appointed Vale 90 multiple times during the days the court without first taking silk. and Carpenter. His Honour took silk at a mere 10 years’ calling and to the Supreme Court on John Selimi 90 thereafter). The cows watched on with This is entirely fitting, however, as soon became the counsel of choice for both the Commissioner of 2 June 2020. Before his The Hon Glenn Waldron AO QC 91 curiosity. These two passions are only her Honour is well known for being Taxation and private clients. He proved a formidable advocate, even appointment, his Honour developed Eng B (Robin) Chan 93 J surpassed by his Honour’s love of and a trend-setter. Justin Graham SC persuading the Full Federal Court in Channel Pastoral to overturn a diverse and highly successful Jillian Mary Crowe 94 dedication to his wife Clare and family. recalls her being an early adopter one of its own decisions handed down only two years earlier. practice with a special interest in Norman Rosenbaum 94 The court has gained not only a of IT in litigation, and the first to His success as an advocate was a reflection of his dedication, land valuation, class actions, royal The Hon Martin Charles Ravech QC 95 talented advocate, but a mentor and consult on any question concerning thorough preparation and natural flair. The precision of his commissions, commercial litigation, champion of many in the Victorian electronic briefs. A visitor to her submissions was the product of a quest for legal principle, of hours contract and negligence. His legal community. We are certain that Honour’s chambers will be welcomed 2020 New Silks Q&A 96 spent reading and thinking, and debating with his juniors. His Honour is known for his excellent his Honour will enjoy a fulfilling and not by rows of books, but a large natural flair for advocacy enabled him to establish a rapport with judgement, legal reasoning and rewarding career on the Bench. screen and an iPad from which those before whom he appeared, sometimes manifesting itself in tactical skills, leadership, unflappable DOMINIC, ELLA AND MARCEL DELANY she conducts all of her matters, gentle humour, even before the High Court. Whilst appearing in one calm, and delighting in a good regardless of complexity or volume. special leave application, he responded to Justice Hayne that he cross-examination (his children The Hon Justice Her Honour was also ahead of the “should have brought his fire retardant robes.” being familiar with this last skill in curve on matters of well-being, As a justice of the Federal Court, he has come to be known for his particular). Katie Stynes coaxing her chambers colleagues to preparation, courtesy, efficiency and the clarity of his reasons. Those who worked with his Honour Bar Roll No 3799 boot camps in Flagstaff Gardens and Outside of the law, his Honour’s passions are for art, music and speak of his sincere and contagious n 22 June 2020, Justice thrice-weekly pilates. It takes a rare history, particularly military history. Having studied fine arts at enjoyment of the law and litigation Kathryn (Katie) Stynes joined strength of character (and biceps) university (through which he met his wife), he is an avid collector generally, as well as his kindness the Trial Division of the to not only make Philip Crutchfield of antiques and art and has been known to turn his own hand to and determination to bring out the Supreme Court. QC do burpees in public, but to also painting. He is a ferocious reader, particularly of biographies. To best in his team. His extraordinary OHer Honour’s appointment be the reigning ‘push up challenge’ his Honour, history is more than a chronology of events but is the dedication to his clients, fuelled by has been widely welcomed by champion.
86 VBN VBN 87 back of the lift
Her Honour’s great loves in life In only her second year at the The qualities demonstrated by mentored everyone else. Senior silks Monash University. His holiday work Workcover, was their local member are her ‘boys’ (husband Damon, and Bar, her Honour set up David Ross Clementine of courage, determination would regularly call to talk through at that time was as a carpet layer with and they were active in organising sons Max and Hugo) and the time Chambers (“DRC”) with a group and loyalty to DRC are those an issue in a case. his uncle and he continues to profess protest marches and other activities back of the lift back they spend together on their farm, of other young barristers. Her her Honour has shown on many I gave a speech about Sarah at an expertise in that craft. which instrumented to the retention surrounded by the resident animals, Honour infused chambers with her occasions. Combined with her our chambers drinks when she was He returned to Warrnambool to of common law entitlements for and the hobbies that keep them all buccaneering spirit, and the members attention to detail, gift for language appointed to the Magistrates’ Court. undertake his articles with Madden & workers. busy. We hope that these continue of chambers grew to know some and feel for the criminal law, her I referred to the surprise that some Co in 1993. He was admitted to practice After a successful practice as a to provide a valuable source of of her varied talents. The accurate Honour was a talented barrister and had expressed to me about Sarah in September 1994 and thereafter solicitor, his Honour became the distraction from the busyness of life (and endearing) imitations of other many an opponent realised early having left the criminal bar when she has practised exclusively in common first member of the Stringer Clark on the bench and wish her Honour barristers and clients (rarely the same in court just what Gorman came to was clearly on a trajectory to lead it. law. He was then and has since been partnership to be called to the Bar, all the very best. person) were no doubt improved by learn that day on the cricket pitch: I shared that surprise. But Sarah was known by all as ‘Perc’, such that when his partners following him some time FIONA CAMERON AND ANGELO GERMANO her Honour’s past life as an actor. they had met their match. always far cleverer. a principal of his firm was introducing later. In May 2003, he read with Ross Her Honour’s culinary skills were She will be an exceptional judge. She found being a magistrate him to a client, he said in his presence Middleton QC and quickly established County Court of discovered when towards the end of DAVID HALLOWES SC immensely rewarding—even on the he couldn’t remember what his a strong plaintiffs’ practice in personal the party held to open chambers, she days when she had 50 cases in a surname was. injuries. His skill and diligence were Victoria produced to the astonishment of those Her Honour Judge day. In particular, over her years in His experience at Warrnambool recognised by firms and leading remaining a sumptuous carbonara for Sarah Leighfield Bendigo, she spoke with immense with country jurors will prove counsel alike. He was much sought the starving masses. pride about being able to help young invaluable in circuit work. In one after as junior counsel. Very early in Her Honour Judge Bar Roll No 3684 Perhaps prophetically, her Honour self-represented accused get back on case, a young juror who was forelady his career, he was junior counsel in Fiona Todd also became the self-appointed first met Sarah 15 years ago track and mentoring inexperienced of a Supreme Court jury attempted a six-week trial in the County Court Bar Roll No 4442 sentencer in DRC for those who at a photocopier in the old practitioners (prosecution and to engage him during trial on a which resulted in a judgment for the stepped out of line. This should hold Gorman Chambers in the Equity defence) who appeared before her. Friday night at the Whalers Hotel. plaintiff of $5 million. udge Todd was appointed to her in good stead for her new career, Building. I was finishing university, As a judge, Sarah will have He did everything he could to avoid His Honour’s very strong practice the County Court on 13 July although it may make her ponder the employedI as an eager research more opportunity to display her such contact and properly reported meant that he could continue to 2020. effectiveness of general deterrence. assistant to Duncan Allen and considerable intellect. I pity anyone her endeavours to all counsel indulge himself with new things: Her Honour was admitted J One of her Honour’s last acts Julian McMahon, and I jammed the trying to take one of her judgments on the Monday morning. A very computers, phones and, in particular, to practice in 2007 and gained as a barrister was to play for DRC photocopier on my first day just as on appeal. But she will also, I have no disappointing verdict was ultimately cars. He seemed not to know how to employment with Robert Stary, where with her eight-year-old daughter everyone was trying to print for court. doubt, continue to contribute to the received by the plaintiff (for which he register a car, trading them in on one she forged friendships with many of Clementine in the annual cricket Sarah spent 30 minutes helping me justice system in a far broader way. was blamed) but the court of Appeal or at times two new cars, just before the capable lawyers there. match against Gorman Chambers, fix it. She is simply an outstanding human ordered a re-trial the following year. registration was due. Car traders In 2011 her Honour came to the while her husband, Guy “it’s just a Afterwards, I asked Duncan and being and will be an outstanding When the jury panel for the re-trial invited him to many functions, thinking Bar where she read with Michael flesh wound” Coffey watched on. Julian who she was. I learned she was judge. We are all very proud. was being read over in court, his he supported their brand but in fact he Croucher, now Justice Croucher. Little Gorman needed boundaries to try viewed as one of the smartest, most RUTH SHANN Honour fortunately recognised that seemed to be buying from all. It is with did she know during her readership and chase down the imposing total set hardworking and talented junior the forelady was again on the panel interest that we observe what car he that in a few short years she would by the powerful David Ross line-up criminal defence barristers. She had His Honour Judge and her name was removed before drives as a judicial officer. be addressing his Honour on the in their annual cricket match. A juicy won the Supreme Court prize, worked the jury was chosen for the re-trial. In November 2017, his Honour ability to detect the direction of the David Purcell half-volley allowed Dermott Dann QC at Galbally and O’Bryan and was His Honour moved from Madden took silk. Although small in stature flight of birds from a painting in Bar Roll No 3613 to smite a powerful drive that looked regularly besting senior opponents at & Co to Stringer Clark in 1996. In (in the Victorian Bar News after the Brett Whitely alleged forgery destined to speed away to the ropes. the Bar. is Honour was appointed March 1997, he with Richard Morrow his appointment he answered the trial and explaining to his Honour But Clementine stood at extra I like this story about the to the County Court joined Gary Clark, the principal of question, “when you were a child, the derivation of “posh” in the cover with the words of advice from photocopier, not just because it was on 10 June 2020. The that firm, as partners to become the what did you want to be when you “Tinnie Terrorist” case. The lengthy her mother ringing in her ears: the first time I met someone who Victorian Bar News usually records largest common law firm outside grew up?” with “BIG”), His Honour pre-trial argument in the “Tinnie “Watch the ball at all times”, “Get would become a great friend, but also Hsuch appointments after the welcome Melbourne and in the top four had established a very large practice Terrorist” case prompted a few of the your body behind the ball”. This because it exemplifies Sarah: the best to the new judge. COVID-19, plaintiff firms by size in Victoria. in all jurisdictions, including being barristers involved to take judicial advice had been passed down to her and the brightest stopped what she however, means that this has not As the young partner in a large a strong appellant advocate. His appointments to escape. Her Honour Honour by her father Robert Todd was doing and helped someone else yet occurred and not only will his firm, he immediately experienced popularity with solicitors was not held firm and saw the case through to AM (former member of the Victorian who was struggling with a problem. Honour’s performance as a lawyer the great uncertainty of the law only for his diligence and skill its resolution but inexplicably failed Bar and former Deputy President of When I was later at the Bar myself pre-appointment be discussed at his when the Kennett Government but also for his quick wit, which to attend the celebratory meal to the Commonwealth AAT). and fortunate enough to share a welcome whenever that date is, but moved to abolish common law for is already being reflected in some mark its end. The ball eluded Clementine’s grasp room with Sarah for many years, also his performance as a judge. injured workers from 12 November passages in his judgments. With her own appointment, she can and cracked into her lower leg but I observed this on repeat. Sarah His Honour brings to the Bench 1997. Consideration of expanding to His Honour brings a wealth of finally complete her apprenticeship with quick thinking she picked it up officially mentored students and a wealth of experience both as a areas of criminal law and family law experience and humanity to the by replicating his Honour’s skill and nearly effected a run-out at the young barristers—particularly those solicitor and barrister. were not appetising to him and his Bench, where his legal skills will of including musical references in bowler’s end. This was the moment who (like her) had no connections After completing his secondary partners, and they instead moved enable him to dispense justice in all the footnotes of judgments where Gorman knew they had met their in the law and were not from education at Warrnambool High to lead the fight to save common areas of the court. necessary. match. posh schools. She also unofficially School, his Honour studied law at law. Roger Hallam, the Minister for TIM TOBIN SC
88 VBN VBN 89 back of the lift
Her Honour Judge Division of the County Court in May Magistrates’ Court 2015. Her appointment as a judicial Glenn took silk on 18 October 1973 My Anh Tran registrar was made pursuant to an of Victoria and became a preferred leader in a Bar Roll No 3525 innovative job share arrangement: the Her Honour Magistrate formidable common law cohort which back of the lift back first of its kind in Australia. Alexandra Burt included such silks as Barry Beach, n 10 June 2020, her Honour Her Honour’s ingenuity was Her Honour Magistrate Melissa Stead Neil McPhee, John Barnard, John Judge My Anh Tran was highlighted by her observations at a Winneke, Jeffrey Sher, Alan McDonald, appointed a Judge of the Judicial College writing course before Jack Hedigan, Jim Gorman, Eugene County Court. Her term commenced Other Appointments her appointment. She noted that the Cullity, Cairns Villeneuve-Smith, David Oin the Common Law Division on 9 John Olle: re-appointment to the room had been set up for many more Kendall and Leo Hart. Many of this October 2020. Coroners Court delegates than actual attendees. Judge group were Glenn’s friends from his Her Honour has been described Tran said “I have an idea. Given there Rohan Hoult: appointed Senior university days. as “ridiculously smart”. She studied are so few of us, perhaps we can move Registrar of the Family Court He served on the Bar Council from science and law at the University of the tables into a group and be closer of Australia 1976 to 1981 and as Chairman of the Melbourne, where she was awarded together?” She had not even started and Adrian Muller: appointment as Judicial Ethics Committee and the Bar Fees first class honours in law. She received was literally rearranging the furniture. Registrar of the County Court Committee. many academic prizes, including the A sign of many things to come. His Honour Judge Patrick Throughout his time at the Bar, Corrs Chambers Westgarth prize for As a judicial registrar, Judge Tran O’Shannessy: appointment Glenn was very approachable and intellectual property, the Melbourne had a reputation for being extremely to the Federal Circuit Court available to anyone seeking his Abroad scholarship to study law at hard working and for being able to Kathleen Foley: appointed to the assistance. He was a friendly man McGill University and an exhibition settle the “unsettleable”. She heard Victorian Law Reform Commission and embraced the collegiality of the in psychology. She then completed interlocutory disputes, made orders Bar. He would go out of his way to a Bachelor of Civil Law at Oxford on the papers, conducted judicial introduce himself to junior counsel University, where she was awarded mediations, oversaw the self- Awards and was a source of encouragement the Clifford Chance prize in civil represented litigants (SRL) program Felicity Gerry QC: Lawyers Weekly and support for many. procedure. and assisted with the administration of Barrister of the Year 2020 In addition to being highly Judge Tran worked as a research the Commercial Division. skilled as an advocate, Glenn was assistant at the Victorian Court of Daye Gang: International Bar She is a member of the County a role model in etiquette both in Appeal and served articles with Association's Outstanding Young Court Rules Committee, the ADR and out of court. He had a highly Freehills (now Herbert Smith Freehills). Lawyer 2020 subcommittee, the County Court SRL cultivated sense of fair play and the She was admitted to practice in May Working Group, the County Court need to be very accurate in what 2001 and called to the Bar in May 2002, Website Redevelopment PSG, and the was said or written. Poetic licence reading with Justice Pamela Tate SC. Vale Project Advisory Group established to was intolerable. He avoided being Judge Tran had a very successful oversee the creation of a civil electronic adjectival and only sparingly invoked commercial and administrative case file at the County Court and to John Selimi analogy. law practice. Her work included review and reform Commercial Division Glenn was very thorough in his complex international construction Bar Roll No: 2989 and registry procedures. She generates The Hon Glenn Waldron AO QC preparation and extremely relevant arbitrations, property law and everything except the electricity in the ohn Selimi passed away in and concise in his submissions intellectual property law. She was Bar Roll No 527 court. Unless her associates kept a check August 2020 at the age of 55 to the court—every word he used regularly led by Justice Maree on her diary, her Honour would list years. he former Chief Judge Glenn’s tertiary education was had a job to do and did it. As Kennedy QC, who describes Judge five judicial mediations a week with a John was admitted to Practice in of the County Court, at the University of Melbourne, an advocate, Glenn was deadly Tran as the best junior she ever had. J directions hearing at 9.30am every day. 1990. He practised as a solicitor for Glenn Waldron AO QC, where he obtained an honours in cross-examination, yet with Judge Tran was secretary of the She infamously does not know the word five years with Mulcahy Mendelson & died on 29 September, 2020 at degree in law with an exhibition a delivery which was calm and property and probate section of the “no”. Her Honour was even late for her Round, working primarily in general Tthe age of 89 years. He was born in private international law. He controlled. Commercial Bar Association and own celebratory drinks as she continued commercial litigation and crime. on 25 November 1930. was articled to Edgar Davies and By the early 1980s, it was reported for the Victorian Reports, to use her peacemaker services in a He came to the Bar in 1995 and read Glenn was a loving and proud admitted to practice on 15 February recognised that the County Court contributed to the Fitzroy Legal Service mediation which required her particular with Philip Dunn QC. He was the last family man. He and his wife Beverley 1954, signing the Bar Roll on 4 was in need of fundamental change. Law Handbook and edited the Women skills, given its daunting features. reader to do so before Philip took silk. were married in 1956 and had March 1955. His clerks were Arthur It was understaffed. There were Barristers Association newsletter. She In the four months since the At the Bar, John specialised in three children: Mark, Caroline and Nicholls and Percy Dever, with John only 34 judges, none of whom were practised as a barrister until the birth announcement of Judge Tran’s complex commercial matters. He Elizabeth. They had 10 grandchildren. Dever becoming his father’s junior women. There was little cohesion of her first child in 2008 and then appointment, the Common Law also appeared in contested property Glenn was educated at Wesley clerk in 1973. or organisation. Some judges did returned to the Bar in December 2014. Division has been warned: prepare for disputes in the Family Court. College from primary level to year He rapidly built a large and not appear to regard themselves Judge Tran was undertaking a PhD “Tornado Tran”. Her appointment is Vale John Selimi 12. He was a keen sportsman and a successful junior practice. He as being part of a team but more in law at the University of Melbourne well deserved and we wish her Honour VBN very bright student, matriculating mentored six readers: Brian Barter, as independent contractors. They pursuant to the Henry James a long, rewarding and successful career with a general exhibition, a special Stan Fookes, Chester Keon-Cohen, worked different hours. Others found Prestigious Scholarship, from which as a judge. exhibition in English and a senior Ian Robertson, Noel Ross and themselves working many hours she withdrew upon her appointment as JUDICIAL REGISTRAR SHARON BURCHELL government scholarship. Gregory Levine. more than their colleagues. a judicial registrar of the Commercial
90 VBN VBN 91 back of the lift
The prestige of the court was transformation of the court. customary and enabled quick and were conspicuous in his conduct by colleagues and never declined diminishing. It was being avoided in Thus, as at the date of his effective communication between of trials. He was an excellent judge requests for assistance. preference to the Supreme Court. retirement, the number of judges judges and administrators who had who ran his court to perfection. To most of the world, Robin was back of the lift back The Registry was understaffed on the Bench had risen to 58, of previously exchanged letters and Whilst it is unfortunate that the a quiet and reserved person. The and poorly equipped. The case whom 17 were women. In addition, notes. Judges were also assisted weight and responsibilities of privileged few who knew and worked management of the court was Glenn fostered and achieved by the development of a research his administrative duties made with him experienced an outrageous antiquated and unimaginative. Case a team mentality among his judges. unit consisting of two researchers. it difficult for him to spend as wit and a mischievous sense of flow was impeded and with it any A spirit of co-operation and The appointment of the unit was much time in court as he would humour. His infectious laugh was once managerial capacity to monitor the corporate solidarity emerged. correctly seen as a highly innovative have liked, the very worthwhile described as a ‘Kookaburra chorus’. It performance of the court. There was The judges combined to enhance measure. consolation is that critically entertained the whole floor. no system of judicial control over the performance and reputation The accommodation crisis important reforms were undertaken Robin was particularly proud of his cases in the list. The legal profession of the court. confronting the court was solved and were so outstandingly Eng B (Robin) Chan Bar heritage or Bar family. A decision was very much left to its own devices. A very effective case management by the design and erection of the successful. of a judge who he regarded as part Delays were substantial. system was implemented, which present County Court building. On 21 November 2002 the Bar Roll No 4574 of that family was a “Great-Grandpa The court's accommodation was conferred significant benefits in This was an enormous project and profession farewelled the long decision” or a “Grandma decision”. obin was born in Malaysia not nearly large enough, although progressing cases from institution occupied much of Glenn’s time. serving Chief Judge of the County One of his proudest moments was and came to Australia it was only 14 years old. It was of proceedings to listing for trial. Intensive lobbying was necessary Court upon his retirement from Justice Gordon introducing him to her in 1998 to study at the crowded and difficult to access. It The system involved an innovative before the government ultimately the Bench. The Attorney-General, Honour’s Associate as her “Grandson”. RUniversity of Melbourne. He graduated was prematurely decaying and was use of technology and engagement granted approval and commenced the Chairman of the Victorian Bar Robin passed away on 28 as a Dean’s Honours List student in to be cloaked in a web of unsightly of suitably trained staff. Frequent the search for a site. Council and the President of the September 2020 at the age of 41, commerce and was awarded the 2003 scaffolding for years because of directions hearings enabled judges Much work remained to be done Law Institute of Victoria wished following a year of serious illness. Supreme Court Prize in law—the unstable cladding. to ensure that only real issues were by Glenn and his judges, particularly Glenn a long and happy retirement. Even while very unwell, Robin plied first foreign student to achieve this. Glenn was appointed Chief Judge litigated and that the profession David Jones, John Hassett and Their wishes were granted. his craft drafting submissions spoken Robin later completed a Master of of the County Court on 3 February, played its part in expediting the Michael Strong. Considerable time During the subsequent 18 years, to in the Federal Court some three Tax at the University of Melbourne 1982 and presided as such for more process. was spent in participating in the Glenn led an active and contented weeks after his passing. and a Master of Laws at the National than 20 years until 24 November A committee of judges was planning, design and fit out of life. He was preoccupied by his Robin leaves his parents, Cheng University of Singapore as an ASEAN 2002. formed to attack the backlog the building to ensure that it was large family and vitally interested San Chan and Kim Bee Tong, partner student winning the M. Karthigesu He was confronted with the problem. The judges would work successful. Years, not merely months, in their activities. He holidayed Jenny Foo, sister Lee Shia Chan and Gold Medal and Memorial Prize. Robin responsibility and challenge of on a roster and call over each case. were energetically worked during regularly and enjoyed the company brothers Weng Keong (Stan) Chan was the architect of the Melbourne achieving substantial change. He The parties would be questioned this process. of his many friends. He was a keen and Eng Bung (Jake) Chan. Master’s subject ‘Administrative Law took the appointment realising the in detail as to the rate of progress The County Court building and accomplished player of bridge MIA CLAREBROUGH, MATTHEW MENG in Tax’, and was a member of an magnitude of the task and dedicated and those cases which were not has proved to be peerless not and chess. He had an on-going AND FRANK O’LOUGHLIN QC Administrative Law Expert Advisory himself to reform of the court. He proceeding would be identified. only as a functional trials court interest in the Bar and regularly Panel at the Melbourne Law School. did so with great imagination and The introduction of judicial control but as a home for the effective attended the annual Dever’s The Victorian Bar members care for At law school, Robin was unwavering courage and vigour. of cases was very successful with administration of justice. The List dinner. Even as his health each other, it goes without saying. On instrumental in creating Tarwirri, Glenn did not regard his position the backlog being reduced by more building is emblematic of Glenn commenced to fail him, Glenn the evening of 24 August, I received the Indigenous Law Students and or his projects as being a popularity than 50 percent. Waldron’s success as Chief Judge. remained strong and determined. an email from Robin Chan informing Lawyers Association of Victoria and contest. He trod on many toes. He Additionally, specialist civil lists It is fitting that a reception hall Glenn Waldron was an me he was about to undergo a bone the Pre-Law Seminar Series to help schemed, pushed and cajoled. There were created. The Medical List was therein is named Waldron Hall in outstanding person. He was marrow transplant. He asked me if it Indigenous law students. was grumbling and dissent from the first specialist civil list created his honour and in recognition of his a wonderful family man and was possible to find some blood donors After graduating, Robin was a the government, bureaucrats and in Victoria and perhaps Australia. outstanding achievements. friend. He was a pre-eminent to donate their white blood cells. researcher for the Court of Appeal some judges who were resistant to The list was managed electronically Under the Waldron administration, barrister and unrivalled as a I immediately emailed the members and the Federal Court, associate to change. On the other hand, Glenn and not only collected information the County Court became highly Chief Judge. In this latter regard, of Foley’s List. In true Bar style, Justices Chris Maxwell, Susan Kenny received solid and loyal support but enabled it to be instantly respected and came to effectively his ground-breaking reforms not numerous members and others who and David Habersberger, lawyer at from many judges including Bruce accessed. It was conducted with deal with a large load of criminal only revolutionised the court, had heard of my request replied what is now Norton Rose Fulbright McNab, Eugene Cullity, Paul Mullaly, great vigour and was highly and civil cases. Its work became but provided the foundation and immediately, offering to assist. and joined the Bar in 2013. John Nixon, Leo Hart, Chester Keon interventional. very complex. It was conferred with trajectory for major developments Ultimately about six members were The law was Robin’s passion. He Cohen, Murray Kellam, Michael The conduct of trials was very parallel jurisdiction to the Supreme which have occurred since his able to fulfil the necessary criteria and was a perfectionist, dedicated to McInerney, and Tom Wodak. His much assisted by the introduction Court in a number of areas. It hears retirement. donated their white blood cells. Staff improving his skills and knowledge, associate, Jim Benson, kept him well of running transcripts, an adjunct many civil trials without monetary Glenn Waldon’s influence on at the Royal Melbourne Hospital were spending his free time summarising informed and was a great companion of which was software enabling jurisdictional limit. It shares, under the system of justice in the State amazed at the response. High Court decisions. and protector. the management, indexing and the Courts (Case Transfer) Act of Victoria is both profound and Some responders had never heard Robin took immense joy in helping Glen was a respected leader summarising of transcript. Such IT 1991, important trial work with the permanent. of Robin but offered to assist. A truly others: colleagues, clients, judges engaged on a vital and necessary equipment as document cameras and Supreme Court. ROSS H. GILLIES QC altruistic response by all. for whom he worked and students. mission. He eventually succeeded video link became available. Glenn’s strengths of intellect, Robin was frequently consulted JOHN KELLY, CEO, FOLEY’S LIST in achieving a spectacular The use of the internet became wisdom, industry and behaviour
92 VBN VBN 93 back of the lift
magistrate to be appointed in Victoria. changed course to a career arguably the case against his brother’s killer to at university were dominated by several days. However, as Sir Charles Jillian Mary Crowe During her time as regional co- more suited to his temperament be kept alive. student theatre; he also performed in Lowe would otherwise have sat on the ordinating magistrate at Heidelberg and personality. He completed his Bar Roll No 1786 His crusading role forged a radio plays for the ABC, remaining a Full Court, the hearing was shuffled to back of the lift back Magistrates’ Court, it became the first legal training at Monash University, reputation for Norman as a fearless member of Actors’ Equity until 1949. the top of the list without His Honour’s ill Crowe passed away on metropolitan court with a Family where he met his wife Ettie whom advocate and spokesman (hence His studies at university were knowledge. Whilst the Court of Appeal 4 October 2020 after a long Violence Division. It was revolutionary he married in 1981. With Ettie’s Stormin’) and he frequently acted as interrupted when he enlisted in the waited impatiently for him, his Honour illness. She was 68. and a cutting-edge innovation. The support and encouragement, Norman an adviser and confidante of Holocaust AIF. Initially stationed in the Northern was appearing at Malvern Petty Jill was educated at Sacred new process attracted observers became a prosecutor with the J survivors, synagogues and many other Territory, he was recruited to Z Special Sessions. On his return that afternoon, Heart Girls’ College in Oakleigh from other Australian states as well Australian Taxation Office, a lecturer charities both at home and abroad that Unit in 1944 via the Botanical Hotel. the appeal was heard, and a retrial and commenced her Bachelor of as from New Zealand and China. Jill and mentor for post-graduate law are too numerous to list by name. After two neat whiskeys he was won, leading to an eventual acquittal. Laws degree at the University of was ‘a doer’, serving on numerous students at RMIT and the University Norman was a man with a propositioned by a British Major: The court then turned to counsel’s Melbourne in 1969. In 1975, she committees throughout her time on the of Melbourne, and a barrister, reading personality larger than life. He had a “Well Ravech, you seem to have had contempt. Astonished, the full bench completed the Leo Cussen Training Bench, both law and non-law related. with the late Professor Harry Reicher. wicked sense of humour and perfect a dull war so far; how would you like heard that his tenure at the Bar would Course (in which she later lectured) Jill retired in February 2018 after 30 Norman’s career at the Bar focussed comic timing, a sharp intellect and to work behind Japanese lines?” Z be “four months tomorrow”. To the and was admitted to practice on 3 years on the bench. On the occasion of on taxation and white collar crime and unshakeable faith. He had a booming Force carried out covert operations, disappointment of the assembled November of that year. her retirement, Peter Ward of Galbally he enjoyed a busy practice which saw voice that could command an audience sabotage and intelligence gathering. press and some 50 onlookers, gathered After some experience in private & O’Bryan was quoted as saying that him appear regularly in the courts of and mobilise a crowd to march across His Honour was based on Morotai, in in expectation of a sensational practice, Jill commenced employment Jill was “an ideal magistrate” due to Victoria and New South Wales. the Brooklyn Bridge. There was always the Moluccas Islands between New denouement, he was sternly warned in the Criminal Law Branch of the her passion for and love of the law. It Jewish tradition (in common a twinkle in his eye when he was Guinea and the Philippines; also in that he had come perilously close to Victorian Crown Solicitor’s Office in is a sentiment echoed by many in the with Indigenous and Islamic belief) telling a story that he enjoyed. He Dutch New Guinea and Borneo. He commitment for contempt and was February 1978. She was the first female profession. considers the body of a deceased was a fiercely proud Jew who chose to served in Z Special Unit until the end required to update his master’s Act. lawyer in that office. Indeed, only two Jill is survived by her husband, Peter, person to be sacred. Following in stand up for his beliefs, his family and of the war, attaining the rank of Staff Gunson exclaimed he was lucky not to years earlier a junior solicitor named and daughters Vivienne and Veronica the footsteps of his mentor, who by his people. He is survived by his three Sergeant. The unit’s work remained get six months for calling his master Marilyn Warren had unsuccessfully and her granddaughter, Zoe. then had moved to the United States, sons, a daughter and their families, officially secret for 30 years, providing “learned” before Sir Norman O’Bryan. applied for a similar position in that Deepest sympathies are extended to Norman led a team of counsel working including four adored grandchildren in his Honour with a convenient rationale He subsequently developed a strong office, only to be advised that it was Jill’s family. pro bono on behalf of members of whom he took great pride and delight. for not mentioning the war. common law practice, specialising not appropriate for women to read PETER CHADWICK QC the Jewish community who sought to May his memory be a blessing. His Honour re-enrolled in 1946, in personal injuries and industrial the depositions in the sexual offences avoid autopsy by bringing an urgent SAM TATARKA completing his law degree in 1949. accidents. He was well-known on matters, and that even the typists were application to the Supreme Court to He was articled at Grant, Dixon and the Geelong and Ballarat circuits. male for that reason! prevent the coroner from conducting King on £2 per week, twice the amount His Honour took silk in 1974. In 1975 In spite of those concerns, by 1980, an autopsy where no suspicious he earned throughout his articles he was appointed as a judge of the Jill had become Officer in Charge of circumstances arose. on Saturday mornings at Snows, a County Court, where he served until the Rape Prosecution Section. She was It was the murder of his beloved menswear shop in Flinders Street. His his statutory retirement in 1994. also a member of the Premier’s Rape younger brother Yankel at the hands admission was moved the same year His Honour was described by those Study Committee, a contributor to the of rioters in New York City in 1991 that by Clifford Menhennitt (later Justice appearing before him as a gentle and Law Reform Commission reference set Norman on a path that defined so Menhennitt). On admission, he was very sympathetic judge. As frequently on rape, a consultant to the Office of much of his life in the ensuing decades. offered an increase to £6 per week reported in these pages, he had a quick the Chief Parliamentary Counsel in Norman was distraught at the acquittal but, after significant negotiation, £7 wit, enjoyed by counsel and jurors. legislative drafting. She lectured at of the murderer in State court, and per week was agreed when his final His Honour served as a reserve the Leo Cussen Institute, at the Police at the age of only 34, with a young plea for an additional 5 shillings was judge of the County Court until 75 Detective Training School and to family including a newborn daughter, Norman Rosenbaum accepted: “All I am asking for now and then sat on the Victorian Legal police surgeons. In addition to all of Norman began his decades long fight is the equivalent of three packets of Aid Appeals Board until the age of the above, it was during this time that Bar Roll No 2309 for justice for Yankel. Undaunted by a Turf per week, one from each of the 90, chairing the Board for his final 10 Jill took it upon herself to complete an justice system that was both unfamiliar orman Rosenbaum The Hon Martin partners”. His Honour was delighted to years. Arts degree, majoring in archaeology and located on the other side of the (Stormin’ Norman, as he Charles Ravech QC have been awarded the equivalent of His Honour enjoyed the beach at Mt and classics. world, Norman began an odyssey was affectionately known the basic labourer’s wage. Martha and Noosa; he played tennis Jill came to the Bar in March 1983 that saw him travelling across the Bar Roll No 465 toN many) died suddenly at his home His Honour came to the Bar in 1951. and rode his bike well into his eighties. and read with Michael Rozenes (as his world hundreds of times until he was on 25 July 2020, a month shy of his artin Ravech was His career was nearly foreshortened His Honour is survived by his wife Honour then was) as his first reader. successful in having Yankel’s killer 63rd birthday. born in London in after seeking to overturn a larceny Rosie, children David and Elizabeth, Jill established a general criminal law convicted in Federal Court for violation Norman and his younger brother 1922 and came to conviction before Sir Charles Lowe. A who both graduated from University practice, appearing in trials, pleas and of civil rights. Norman became a well- Yankel grew up in Mont Albert in Australia in 1929. He was educated 1949 Act, not updated by his master of Melbourne Law School, and appeals, along with some family law known and relentless campaigner for a deeply traditional Jewish home, atM Melbourne High School and the Gratton Gunson, precluded a judge Thomas a winemaker, and his five and Supreme Court custody cases. justice and was seen in the corridors of where family, respect for others and University of Melbourne, where he hearing an appeal if he had presided at grandchildren. His Honour’s niece, On 1 February 1988, after five power in New York and Washington, as education were highly valued. initially commenced a Commerce trial. His Honour, noting that his appeal nephew and great nephew are all years at the Bar, Jill was appointed well as being a regular interviewee on Having initially embarked on studies degree in 1940 and joined the was scheduled second last on the list, members of the Victorian Bar. a magistrate—only the sixth female radio and television as he lobbied for at the Pharmacy College, Norman University Rifles. His early years believed it would not be heard for DAVID, ELIZABETH AND THOMAS RAVECH
94 VBN VBN 95 back of the lift
the book with significant themes New hobbies or skills in lockdown? Soundtrack to your life? Tree of Life interspersed with much-needed Interpreting the Premier’s daily Soundtrack—Alexandre Desplat light-hearted interludes. Runner-up pressers. How has 2020 changed you? back of the lift back is A Gentleman in Moscow by Amor Book/TV/movie/podcast Expanded my perspective. Towles. recommendation? At the moment I’m Who would play you in a movie, and Soundtrack to your life? Mamma reading Amor Towles A Gentleman in why? Patrick Brammall. I can relate Mia. An ABBA fan even during the Moscow; protracted house arrest is to Danny Bright. unfashionable years: I bought ABBA the new black. And John Oliver’s Last Word/phrase of the year? “You’re on Gold before Muriel’s Wedding and Week Tonight as some respite from all mute”. Priscilla. things Trumpian. How has 2020 changed you? Taught Soundtrack to your life? Most Tim Puckey me that “Stop the world, I want to get recently, the CHO’s daily analysis of SC off” isn’t all it’s cracked up to be. Oh, the R number, CNN election updates How did you and that family and friends are most and Trade Radio. Interspersed with celebrate in important, but I already knew that. Triple J and Yo-Yo Ma… lockdown? With a Who would play you in a movie, and How has 2020 changed you? More good bottle of Henschke on Zoom, of why? Julia Roberts because—well, do than anything else, a clear-eyed course. I need to explain? Surely I’m not the appreciation of the things, and What advice would you offer only one to see the similarity? people, that are truly important in yourself as a first year law student? Word/phrase of the year? There’s a my life and, in particular, the friends Go to the pub. good time coming. and colleagues who have made this Most memorable junior brief? A mostly awful year bearable. Turkish delight in Sydney. Lisa Hannon Who would play you in a movie, and Zoom, Webex or Microsoft Teams? why? Rose Byrne. Cate Blanchett SC Zoom. won’t make a credible brunette in a How did you New hobbies or skills in lockdown? Saints beanie. celebrate in Zooming. champagne (correctly described) Word/phrase of the year? lockdown? Zoom Book/TV/movie/podcast from a colleague delivered on the day. Unsuitable for printing in such an 2020 New Silks cocktails with some close friends, recommendation? Money Heist What advice would you offer august publication. In lieu of that, more Zoom drinks with my floor Soundtrack to your life? Queen’s yourself as a first year law student? “omnishambles”. Malcolm Tucker (note the theme) and Attica-at-Home Greatest Hits. Take the opportunities. would have been at home in 2020. with my family, being one of the few How has 2020 changed you? I’ve Most memorable junior brief? “fancy” digs that could manage same grown an iso-beard. A brief that started with a seven- Peter Fary SC day delivery. Who would play you in a movie, and week trial (unusual for tax How did you What advice would you offer why? One of the Hemsworths—the barristers) watching and learning celebrate in yourself as a first year law student? beard. from a leader who was an amazing lockdown? Uber Eats Don’t ski Little Buller Spur when Word/phrase of the year? It is what cross-examiner, and ended in the and a bottle of Pinot the sign says “no snow” (ACL it is. High Court. from the floor. & reconstruction to follow). Other than Most frequently cited case? Sun What advice would you offer that, PERSIST. It will be worth it. Patrick Newspapers Limited v FCT (1939) yourself as a first year law student? Most memorable junior brief? If I Soundtrack to your life? Life of Pi. 61 CLR 337 at 363. Sorry—you “Plan to spend 2020 in Queensland. Wheelahan SC Don had to choose from many (none of How has 2020 changed you? Less probably have to be a tax barrister to Just trust me” How did you them memorable in a good way), Farrands SC activity, more appreciating. appreciate that. But it does have an Most memorable junior brief? celebrate in Dever sending me out to a certain How did you Who would play you in a movie, and interesting back story. Rambaldi v Mullins (No 2) [2016] FCA lockdown? Around Q private school to wrangle the Parents’ celebrate in why? Difficult choice between Brad Zoom, Webex or Microsoft Teams? 977. a bonfire at the farm with family & Association AGM following a certain lockdown? Quietly. Pitt and Brad Pitt. Microsoft Teams for formal occasions, Most frequently cited case? Ugly zoom with friends. haircutting incident… What advice would you offer Word/phrase of the year? Don’t let Zoom for casual. Tribe v Sikola [2001] VSC 189 (nine What advice would you offer A Most frequently cited case? yourself as a first-year law student? the future pass you by. New hobbies or skills in lockdown? citations to go). yourself as a first year law student? Darryl Kerrigan v Commonwealth Enjoy and hold on for the ride. See previous answer. And speed Zoom, Webex or Microsoft Teams? Enjoy the law. of Australia (1997) The Castle Law Zoom, Webex or Microsoft Teams? Julianne dishwashing to make way for another Zoom. Most memorable junior brief? Reports (I have a fair practice in Is there any other? child’s YouTube-inspired culinary New hobbies or skills in lockdown? Grocon v CFMEU, Lonsdale street Jaques SC compulsory land acquisition and The New hobbies or skills in lockdown? experiment. Amateur statistician/virologist. protests (Justice McDonald) How did you Vibe often gets a run). Professional home barista Book/TV/movie/podcast Book/TV/movie/podcast Most frequently cited case? As above celebrate in Zoom, Webex or Microsoft Teams? Book/TV/movie/podcast recommendation? More recently - recommendation? Lex Fridman Zoom, Webex or Microsoft Teams? lockdown? With Zoom Zoom Zoom (but usually with a recommendation? The Law of Big Little Lies by Liane Moriarty and podcast. Zoom. family, sharing a beautiful bottle of bit of Teams on the side) Easements also the mini-series—but particularly
96 VBN VBN 97 back of the lift
New hobbies or skills in lockdown? Megan yourself as a first year law Black Saturday Bushfires class Most memorable junior brief? A Sandro Meditation. student? The same advice my actions and Deloitte Touche Tohmatsu two-week hearing in the Federal Book/TV/movie/podcast Tittensor SC grandfather always gave me as a v Sadie Ville Pty Ltd. Court before Gordon J (her Honour’s Goubran SC back of the lift back recommendation? The Lazarus How did you young tennis player: “The more you Most frequently cited case? I was first long hearing as a (then) Federal How did you Strategy (Audible). celebrate in practise and prepare, the luckier you briefed for one of the interveners in Court judge), at the end of which my celebrate in Soundtrack to your life? “Always look lockdown? In the get.” Momcilovic v The Queen (2011) 245 late leader felt unwell and asked me lockdown? Surf on on the bright side of life.” traditional manner—bolstering the Most memorable junior brief? CLR 1. Can I claim that? to close the case about half an hour Sunnymeade Beach. How has 2020 changed you? Joined French champagne industry. Thomopoulos v Faulks [2006] V ConvR Zoom, Webex or Microsoft Teams? before we were required to do so. We What advice would you offer the crew of mid-life crisis Harley What advice would you offer 54-723—my first Supreme Court Please can we go back to a court ultimately lost the case, but the task yourself as a first year law student? Davidson riders. yourself as a first year law student? trial without a leader before Justice room?! gave me confidence. And my leader Be persistent. Who would play you in a movie, and Consider whether crime pays. Cavanough, who as it happened was New hobbies or skills in lockdown? gave me a red bag. Most memorable junior brief? why? Clint Eastwood. Why? Because Most memorable junior brief? The sitting in his first trial as a Supreme Dancing to “The Fitness Marshall” Most frequently cited case? Appearing in the Shepperton I’m lucky. last few years as Counsel Assisting Court judge. with my kids! Redgrave v Hurd (1881) 20 Ch 1, Magistrate’s Court regarding Water Word/phrase of the year? Lockdown. in the Royal Commission into the Most frequently cited case? Blatch v Book/TV/movie/podcast a decision of Sir George Jessel MR (he Rights. Management of Police Informants Archer (1774) 1 Cowp 63. recommendation? During lockdown, of fusion fallacy fame) (at 12-13): “Even Most frequently cited case? Project Justin will be forever burned into my mind. Zoom, Webex or Microsoft Teams? I’ve enjoyed reading Delia Owens’ assuming that moral fraud must be Blue Sky. Graham SC There are also some earlier cases that Three votes Zoom, two votes Where the Crawdads Sing and shewn in order to set aside a contract, Zoom, Webex or Microsoft Teams? will never be forgotten—representing Microsoft Teams one vote Webex. watching Frances Ha and Call My you have it where a man, having None of the above. How did you Myuran Sukumaran and Andrew New hobbies or skills in lockdown? Agent. obtained a beneficial contract by a New hobbies or skills in lockdown? celebrate in Chan in the ‘Bali Nine’ case; the Cooking slow cooked beef brisket Soundtrack to your life? It’s a long statement which he now knows to be Playing games on my iPad. lockdown? With a Vampire Gigolo murder case; and the with BBQ sauce and mac and cheese. list, but at the top are The Beatles false, insists upon keeping that contact. Book/TV/movie/podcast can of Balter XPA and an episode of Oil-for-Food Royal Commission and Book/TV/movie/podcast and Radiohead. To do so is a moral delinquency: no recommendation? The Last Voyage of Fauda (Netflix). subsequent civil penalty proceedings. recommendation? Merlin–fun family How has 2020 changed you? It’s man ought seek to take advantage of the Pong Su. What advice would you offer Most frequently cited case? I’d love show that got us through the dark reminded me how fortunate I am to his own false statement”. Soundtrack to your life? Flower of yourself as a first year law student? to say R v Carmody (1998) 100 A Crim days of the first lockdown. live the life that I do, and how fragile Scotland, Corries. Don’t throw away those tracky Zoom, Webex or Microsoft Teams? R 41 and not R v Verdins (2007) 16 VR Soundtrack to your life? Bruce it all is. And the fact that I now think How has 2020 changed you? One dacks—you’re going to need them Zoom—if only for ease. 269. Springsteen discography. the tracksuit pants/business shirt year older. again in about 29 years’ time. New hobbies or skills in lockdown? Zoom, Webex or Microsoft Teams? How has 2020 changed you? It’s combo is acceptable business attire. Who would play you in a movie, and Most memorable junior brief? With Using Zoom, Webex and Microsoft Facetime. been the least physically active year Who would play you in a movie, why? No-one, for good reason. Graeme Clarke QC, for an urgent Teams. New hobbies or skills in lockdown? of my life since I learnt to crawl. Now and why? I can’t imagine why there Word/phrase of the year? Bye bye injunction to stop publication of Book/TV/movie/podcast Pisco Sours. taking preliminary steps to bounce would ever be a movie character Mr Trump. medical records of unnamed footy recommendation? Book: A Book/TV/movie/podcast back next year. based on me. players (and no, I am not saying Gentleman in Moscow by Amor recommendation? Anything by Sally Who would play you in a movie, Word/phrase of the year? Chris Carr SC who). Towles. Pure pleasure, especially for Rooney—Conversations with Friends and why? Rupert Burns because he Lockdown. How did you Most frequently cited case? Codelfa– anyone even slightly interested in /Normal People; Babylon Berlin; once played the role of my senior celebrate in it is the gift that keeps on giving. Russian history. Freakonomics. mentor (now Justice John Middleton) lockdown? With Zoom, Webex or Microsoft Teams? Soundtrack to your life? ABBA, Soundtrack to your life? Lost in and made him look pretty good. Paul Vout SC a non-socially Anything but Webex. Fleetwood Mac, Eurythmics and Translation. Word/phrase of the year? “Why How did you distanced glass of champagne with New hobbies or skills in lockdown? Tracy Chapman. Yes—tragically, I How has 2020 changed you? It has has the washing machine suddenly celebrate in my beloved. Gardening/weeding and vacuuming. haven’t gotten much past the 1980s. given me perfect vision. started to shrink all my clothes?” lockdown? My What advice would you offer Book/TV/movie/podcast How has 2020 changed you? It has Who would play you in a movie, partner and I yourself as a first year law student? recommendation? The Hamilton made me focus more on the most and why? Judge Fiona Todd—for her Alistair Pound consumed a bottle of Krug that Go to some classes, you idiot—you musical movie, Heavyweight podcast, important things: family and friends. exceptional acting in Janus and Blue we had already chilled for our 20th might realise you actually like this and Lee Child’s Jack Reacher novels SC And it reminded me why I started Heelers in her former life anniversary the following week. stuff. (guilty pleasure). How did you getting my hair cut short after about Word/phrase of the year? Noble Fear not: it was replaced and the Most memorable junior brief? AB Soundtrack to your life? That’s easy: celebrate in 1977. cause corruption. anniversary duly celebrated too! & CD v EF, most especially the day anything by Billy Joel. lockdown? Quietly, Who would play you in a movie, What advice would you offer we called for a witness’s file and How has 2020 changed you? I am with my wife Louise and our kids. and why? Ernest Borgnine. As Peter Wallis yourself as a first year law student? happened upon a letter in which more aware of the mundane things, What advice would you offer Wikipedia notes: “He was noted for Look to the social context and effect Nicola Gobbo sought a financial and grateful for them. SC yourself as a first year law his gruff but calm voice and gap- of the law you are studying. It gives reward from the police for having Who would play you in a movie, How did you student? Think again about studying toothed Cheshire Cat grin”. I’m not that law its true meaning. And legal sold her clients down the river. and why? I would like to think Hugh celebrate in architecture. sure about the gruff and the gap- history is not simply for swats. Most frequently cited case? Ditto. Grant; but probably Hugh Laurie. lockdown? A couple Most memorable junior brief? toothed, but I’m told I am generally You can’t really understand a legal Zoom, Webex or Microsoft Teams? Word/phrase of the year? Stay safe. of drinks with my family after a long Quite a few, and all for different calm and have a big smile. principle or doctrine unless you know None of the above. Please bring day in Court via Microsoft Teams. reasons. A few that spring to mind Word/phrase of the year? Kindness. where it came from. back the gravity of a real courtroom, What advice would you offer are Director of Housing v Sudi, the
98 VBN VBN 99 and the ability to engage at a human Georgina Netflix. I think we all need a little level with the poor client who is kindness right now. facing the most difficult time in his Coghlan SC Soundtrack to your life? Industrial back of the lift back or her life. How did you and punk music, which might explain New hobbies or skills in lockdown? celebrate in my hearing. Driving a tractor. lockdown? With How has 2020 changed you? I own Book/TV/movie/podcast champagne, of course. slippers now. recommendation? The Hamish and What advice would you offer Who would play you in a movie, Andy podcast. yourself as a first year law student? and why? Someone with curly hair Soundtrack to your life? “Sweet It’s okay to have some fun. because it wouldn’t be believable Supporting the Caroline”. Most memorable junior brief? Any with a blow dry. How has 2020 changed you? I case with Dr David Neal SC. Word/phrase of the year? - claim that I’ve grown more patient. Most frequently cited case? Not sure. Quarantini. Who would play you in a movie, Zoom, Webex or Microsoft Teams? and why? Someone dashingly Zoom. Ben Ihle SC legal community handsome and charming. New hobbies or skills in lockdown? How did you Word/phrase of the year? "Sorry F45. celebrate in my internet dropped out." Book/TV/movie/podcast lockdown? With recommendation? Gossip Girl. my wife and kids, in for over 30 years Soundtrack to your life? Screamer, ‘comfy’ pants and footwear. Daniel Third Eye Blind (at the moment). What advice would you offer The industry super fund dedicated to legal professionals. McInerney How has 2020 changed you? I’m not yourself as a first year law student? SC sure yet. Read the case, not just the textbook. Who would play you in a movie, and Most memorable junior brief? How did you why? Claudia Karvan. I apparently Anything I did with Ruskin. Always With personal service for every member, we can help you to: celebrate in once looked a bit like her. interesting. Always learning. Often lockdown? A delicious Providoor Word/phrase of the year? Donut day. laughing. meal, shared with friends via Zoom. Most frequently cited case? By What advice would you offer Liz Ruddle SC courts—Slaveski v State of Victoria. By yourself as a first year law How did you me at social functions, see answer to student? Get to the Bar quickly. It is celebrate in 3, above. the best career in the law. Maximise your contributions Consolidate accounts Change insurance cover or lockdown? Zoom, Webex or Microsoft Teams? and tax deductions and SMSFs investment options Most memorable junior brief? Champagne and hugs Zoom. All the way. First appearance—a plea in with my family. New hobbies or skills in lockdown? Dandenong Drug Court, a Court I What advice would you offer I’ve become a virtuoso in dressing for didn’t know existed. yourself as a first year law student? business on the top, comfort down Most frequently cited case? You can’t cram a semester worth below. Sun Newspapers Ltd v Federal of learning into a weekend, even if Book/TV/movie/podcast Commissioner of Taxation (1938) 61 someone did give you their notes. recommendation? I binged on Set up the Direct Investment Book a workplace seminar Plan for retirement CLR 337 Most memorable junior brief? Succession during lockdown. McMafia option for choice and control and more. Zoom, Webex or Microsoft Teams? Being asked whether it was “should” was also good. Zoom. or “could” by Justice Hayne and Soundtrack to your life? Generally, MAKE YOUR APPOINTMENT TODAY: New hobbies or skills in celebrating with many drinks some 90s hip hop. If it has to be a lockdown? Running further. afterwards when it appeared I song, it would be “Relatively Easy” Book/TV/movie/podcast guessed correctly. by Jason Isbell. It's a song that recommendation? Bluey. Benjamin Fernandes Most frequently cited case? Baini v always gives me a healthy dose of Soundtrack to your life? For the R. I was in it and survived so I cite it perspective. Client Service Manager VIC | 03 9602 0114 | [email protected] last six months—Morrisey's “Every even when totally unnecessary. How has 2020 changed you? See day is like Sunday". Zoom, Webex or Microsoft Teams? answer to 6. How has 2020 changed you? Much Zoom Zoom, baby! Who would play you in a movie, and happier for having spent more time New hobbies or skills in lockdown? why? Merryl. So versatile. Otherwise, at home. Grade 4 maths. I also tried bottle I’m told Jason Bateman might be a Who would play you in a movie, cutting but just ended up with a decent suggestion. legalsuper.com.au [email protected] 1800 060 312 and why? Will Ferrell. It would rather violent looking recycle bin. Word/phrase of the year? 2020: make the movie funnier. Book/TV/movie/podcast Getting through it. This information is of a general nature and does not take into account your specific needs. You should consider your own financial position, objectives and Word/phrase of the year? Covidiot requirements before making any decision. You should also obtain and read the legalsuper Product Disclosure Statement (PDS) before making any decision in recommendation? Speedcubers on relation to legalsuper. The PDS can be obtained at legalsuper.com.au. Issued by Legal Super Pty Ltd, Level 37, 140 William Street, Melbourne, 3000 ABN 37 004 455 789 AFSL 246315 as the Trustee for legalsuper ABN 60 346 078 879. 100 VBN boilerplate
English language and some of its It grates to see a word toyed with in ways that Boilerplate quixotic ways. The OED gives this ignore the fundamentals of our language. definition ofmentor : the Latinate suffix -tor (“doer”), leading it appeared in an American text: A BIT ABOUT WORDS Mentor: With initial capital: The name to a form using the corresponding Educating Youth for Economic of the Ithacan noble whose disguise suffix -ee (“one who has an action done Competence...[1], volume 15: the goddess Athene assumed in order upon them”)… to act as the guide and adviser of the The mentee occasionally teaches the young Telemachus; allusively, one who So, how do we get from mentor class, regularly confers with students, fulfils the office which the supposed to mentee, in a way which seems conducts optional special study Mentor fulfilled towards Telemachus. natural enough that mentee has sessions, and relieves the professor of become a recognised word? It all most clerical classroom functions… Hence, as common noun: An goes back to Anglo-French and experienced and trusted counsellor. To be candid, I was astonished to we lawyers bear a large part of learn that the Americans had used Conspicuously, the OED does not the responsibility. French had a mentee for such a long time. Whether include an entry for mentee. The Bar’s significant influence on English its use in an American text in 1958 CEO is probably shocked to learn after 1066. In Anglo-French, many adds anything at all, may depend on this. All other major dictionaries of past participles ending with an é (e your approach to English. English have definitions ofmentor acute) were adopted into English I fear that my approach to English which refer to the role of Mentor in as ending with ee and were treated was shaped by the musical (and film) relation to Telemachus, but they do as nouns. So, for example, apelé My Fair Lady, which was written not have an entry for mentee. But became appellee; abandonné became by Lerner & Lowe in 1956. It was mentee is certainly a word in English abandonee; nominé became nominee. based on George Bernard Shaw’s today (see, for example, the online By small degrees, nouns ending Pygmalion (1913). Early in the piece editions of the Merriam-Webster -ee came to mean the recipient Henry Higgins sings: dictionary and the Cambridge English or object of the function implied Dictionary. The worldwide web is a by the corresponding word which …Oh, why can’t the English learn to good, if undisciplined, place: you can typically ended -er or -or. By a set a good example to people whose find almost any word you want online). process of borrowing which began English is painful to your ears? Apart from online dictionaries having with our adaptations of French The Scotch and the Irish leave you definitions ofmentee , the word also words (borrowing words from other close to tears. appears in various university websites languages is a process at which There even are places where English and in Wikipedia. Wikipedia, to its English has shown itself very adept) completely disappears. credit, gives a little history: we invented payee (from payer), Well, in America, they haven’t used it lessee (from lessor), abandonnee, for years!... The roots of the practice are experimentee, legatee and so on. lost in antiquity. The word itself Henry Higgins in Pygmalion was Mentors and mentees Although it is almost always the was inspired by the character based on philologist Henry Sweet object of an action who gets the of Mentor in Homer’s Odyssey. who was born in 1845 and died in -ee suffix, it is not always so: for JULIAN BURNSIDE Though the actual Mentor in the 1912: just a year before Shaw wrote example, absentee. I am not aware of story is a somewhat ineffective old Pygmalion. In My Fair Lady, Henry other equivalent creations. man, the goddess Athena takes on Higgins does not have the sharp n a regular communication to barristers, on 20 It was a reminder of the importance that those of us It was only a matter of time before his appearance in order to guide personality which Henry Sweet is August 2020, the CEO of the Victorian Bar wrote with experience should share it with those who have less mentor generated mentee. I will confess young Telemachus in his time of reputed to have had. to us announcing the ”New VicBar Mentoring experience. But in a very different way it made me feel that it grates for me. It troubles me to difficulty. All grumbles aside, mentee is a Program—Opportunities to participate”. the weight of my years at the Bar. make that confession, because I like to useful word – it might not pass Henry The communication included the following Odysseus (Ulysses) the King of Ithaca, went off to Putting aside its dismissive think that I support the development Sweet’s test or even Henry Higgins’ paragraph: fight the Trojan wars. On his way back to Ithaca, he assessment of Mentor, Wikipedia is of our language. But Mentor has test, but it has no obvious substitute was shipwrecked, and spent years on an island as the quite close to the OED definition But been used with its current meaning Mentoring has always been a vital part of the Bar—in or synonym. Perhaps we should captive of Calypso. He had left his son, Telemachus, to be it includes references to mentees. since about 1750, and usually with a both formal reader/mentor relationships, and informal celebrate it, as a modification (using educated and guided by an Ithacan nobleman, Mentor. Wiktionary, a dictionary offshoot of capital M, so it would be understood arrangements that members have pursued themselves. a 14th century device) of a word During Ulysses’ absence, Mentor was sometimes used Wikipedia, defines mentee this way: as a classical reference, but mentee Mentoring relationships bring benefits to both mentors and borrowed from the ancient Greek as a false identity by the Goddess Athena, daughter of is very recent. It grates to see a word Imentees—exchanging knowledge and know-how, expanding Back-formation from mentor. events of about 1100 BC. Zeus. Because of his role, Mentor’s name has become toyed with in ways that ignore the networks, and sharing skills and experience. Building strong Although mentor comes from I suppose we should embrace it as synonymous with guidance and instruction. fundamentals of our language. mentoring relationships is part of VicBar’s commitment to Ancient Greek Μέντωρ (Méntōr), a new enrichment of our language. Although I cannot claim close acquaintance with support, connect and develop the next generation of leaders. the name of a mythological figure…, However recent mentee seems In any event, we might as well get Homer’s Odyssey, I do have some familiarity with the it was reanalyzed as terminating in in contemporary English, in 1958 used to it. image courtesy of bigstock len 44ik of bigstock courtesy image 102 VBN VBN 103 boilerplate
message was to her uncle. Coulthard The expertise is available in Melbourne. There is boilerplate identified a number of linguistic no need to look overseas. choices in the last message that were not present at all, or were rare, in number of other documents, of the need for proper, professional the rest of the corpus. He was able to which the suspect was the known analysis, if authorship comparison express the opinion that it was fairly author. The suspect eventually evidence is required. The harm done likely that Danielle had not written pleaded guilty and was imprisoned. by a simplistic comparison of similar the last message. Despite the guilty plea, linguists features, without proper attention It is much harder to express a view have questioned the validity of the to the question of uniqueness is that the same person, who is known to authorship comparison in that case. obvious. The expertise is available have written the comparison sample, As far as I am aware, Fitzgerald’s in Melbourne. There is no need to did write the questioned document report in the McDonald/Gardiner look overseas. A good starting point or documents. Identifying the similar case has not been published. We to find local expertise is the recently features of the two sets of documents cannot know the full reasons for established Research Hub for does not take the expert all the way his conclusion that the features he Language in Forensic Evidence at the to this conclusion. This is because the compared showed the language University of Melbourne3. similar features might be present in of the documents to be “extremely The Hon Peter R A Gray AM was a the writing of people other than the distinctive”. Features that Fitzgerald judge of the Federal Court of Australia putative author. Demonstrating the mentions in the program include for 29 years. During part of that uniqueness of the features to one inconsistent use of apostrophes for time, he was also Aboriginal Land author is very difficult. possessives and plurals, and single- Commissioner, hearing land rights Sometimes, using language corpora sentence paragraphs indented but claims in the Northern Territory. can assist. Various corpora are not in any real steady pattern. Nothing He became interested in issues of available on the internet. They are about either of these features suggests cross-cultural communication in collections of written language, or they point to one author. Many people the legal system. That interest led transcriptions of spoken language, have trouble identifying the purpose him to a biennial conference of the LANGUAGE MATTERS gathered to assist researchers. A of apostrophes. Journalists are trained International Association of Forensic corpus can be general, or specific. to write in one-sentence, indented linguists in 2003 and to membership For instance, there are corpora of paragraphs. It is not clear what the of that association since then. Since Australian English compiled by absence of a real steady pattern means, his retirement in 2013, Peter has A triumph for forensic linguistics? various Australian universities, but it seems easy for any author to been trying to teach law students accessible online2. A corpus can indent inconsistently. The program about language issues and to obtain be very useful in comparing the hints at other features, but we cannot Peter Gray a qualification in linguistics. He frequency with which words appear, know what they are, without access to currently co-teaches a subject called and in searching for collocated words the original report. Language, Communication and the any of us will remember the forensic linguists. or phrases. In some circumstances, In the program, a police officer Legal Process at Monash University two-part ABC Australian There is no doubt that a linguist with the right expertise the whole internet can be used as a suggests that authorship comparison Law School. He also co-teaches in Story program about Di can engage in authorship comparison. The process corpus of language. had not been done in Australia, the Legal Writing course in the law McDonald, a victim of involves comparing one or more questioned documents Where a questioned document particularly not in Victoria, before. school at Swinburne University, where horrendous stalking by her with samples whose authorship is known. Identification is expressed in the language of a This is untrue. There are Australian he is an Adjunct Professor. Recently ex-partner Max Gardiner. of similarities in lexical, morphological, syntactic, register political extremist, it is necessary linguists who have the necessary he completed a Master of Applied Gardiner pleaded guilty to some charges and was and stylistic features is very important. The outcome to be careful. Extremist subcultures skills to do this sort of analysis and Linguistics at the University of New imprisoned. Among other things, he was alleged to have might depend on the aim of the exercise. typically recycle words and phrases to do it thoroughly professionally. I England. putM up posters containing scandalous imputations about For instance, it might be possible to express a positive in the documents they produce, so have been approached by a police McDonald, in public places that she frequented. view that the two sets of documents were not written by that it becomes difficult to attribute officer and asked to do a similar job. I 1 Malcolm Coulthard and Alison Johnson, An Introduction to Forensic Linguistics: The ABC presented the case as having been solved by the same person. In England, forensic linguist Malcolm a document to a particular member declined on the ground that I did not Language in Evidence (2007), Routledge, retired FBI forensic linguist Jim Fitzgerald, the man who Coulthard has been able to do this more than once. One of the subculture. The writings of have the level of expertise required. at pp 201-203. was also credited with solving the case of the Unabomber. example is the case of a 15-year-old girl called Danielle, members of extremist subcultures I recommended a linguist capable of 2 Ten separate corpora are available for Fitzgerald made a comparison of the posters with some who disappeared, along with her mobile phone. In 2002, might not be represented in corpora. performing authorship comparison. search (with appropriate permission) at love letters and court documents known to have been her favourite uncle (by whom Danielle turned out to In the Unabomber case, Fitzgerald He in turn passed the case to another ausnc.org.au/. written by Gardiner. Fitzgerald concluded that some have been pregnant) was convicted of murdering her1. As expressed a positive opinion that linguist who undertook the task. 3 arts.unimelb.edu.au/school-of-lan- features of the language used in both the posters and part of the investigation, the police were able to get from the author of the Unabomber’s The pleas of guilty in both the guages-and-linguistics/our-research/ research-centres-hubs-and-units/ the known documents made the language extremely Danielle’s telephone service provider the last three days manifesto was written by the Unabomber case and the McDonald/ research-hub-for-language-in-forensic-
photo courtesy of bigstock id 109625918 – alexandre17 id 109625918 of bigstock courtesy photo distinctive. This has led to disquiet among Australian of her text messages, a corpus of 70 messages. The last same person who had written a Gardiner case should not overshadow evidence.
104 VBN VBN 105 boilerplate BOOK REVIEW issue of the growth of government, suggesting that the ability of A Classic that improves with age government to confine its functions boilerplate Dissenting Opinions or to limit its expenditures is MATTHEW HARVEY severely constrained by the expectations of the Australian by Michael Sexton electorate. In some prophetic ship is the most living of inanimate things”.1 A comments he refers to the ship can be arrested. A ship can be a defendant JUDGE DAMIAN MURPHY widening gap between committed to a proceeding. As curious as they seem, these expenditure and potential revenues propositions sit at the heart of admiralty law. and the problem of addressing The processes leading to the arrest of a ship ublic be “much greater scope in the contrary views represent a threat to this in an unstable political and are some of the most exciting an admiralty intellectuals immediate future for the full-blooded their role of moral guardians whereas financial environment, particularly lawyer will experience. There are the confidential discussions with the of a contrarian public debate of social, economic and they occupy most of the commanding where there has been a long Admiralty Marshal (who will effect the arrest). There’s the preparation of the bent within the political issues in Australia”. heights of Australian society and are period of economic growth. The arrest warrant and supporting documents. There’s the wait for the ship to legal profession And the author does not hold unfortunately not all threatened. One issue is also raised more severely arrive at port—one can now watch this in real time on ship-finder sites on the are relatively back. On “Free Speech or Hate thing they have done, however, is to in other Western democracies. He web. And, finally, there’s the news that the marshal has arrested the ship. rare in this country. What makes this Speech” he is in his element in lower the tone of public debate by “A concludes: “In Australia, however, The leading text on admiralty law in Australia is Dr Damian Cremean’s collection of opinion pieces and book opposition to Section 18C of the virulent attacks on their opponents the combination of governments Admiralty Jurisdiction, in its fifth edition this year. Dr Cremean, a member of reviews unique is that the author has Racial Discrimination Act (Cth) and that reflect the deep intensity of struggling to control their finances our Bar, was a researcher for the Law Reform Commission’s Report No. 33, for most of the period covered held is critical of the Victorian anti- their sanctimonious opinions.” and an electorate growing steadily entitled Civil Admiralty Jurisdiction. This report led to the enactment of the office as the Solicitor General of New vilification laws and the Tasmanian Strong stuff! It says something for P more cynical and self-interested Admiralty Act 1988 (Cth), a momentous step in this country’s development of South Wales. Anti-Discrimination Commissioner Sexton’s standing that he can hold may eventually lead to much more admiralty law. Michael Sexton SC was educated in seeking to investigate the Catholic and publish these opinions while still difficult times in the year ahead.” Previous editions of this book have included a systematic review of admiralty at the Melbourne Law School and Church for opposing gay marriage. holding his day job as NSW SG. And this was written before law in other jurisdictions. Dr Cremean has expanded the review in the latest the University of Virginia and He opposes the use of the Human Lawyers who are proponents of COVID! edition, so it now includes Australia, New Zealand, Singapore, the United commenced his legal career as Rights Commission and the Federal a bill of rights are the subject of This volume also includes a Kingdom, Hong Kong, Malaysia, South Africa, Canada and India. This is of an advisor within the Whitlam Court to stifle public debate: “injured a dissenting critique in “The Rule number of book reviews that form interest to Australian lawyers, particularly when advancing a submission that the government. Out of that experience feelings may sometimes be the price of Law or the Rule of Lawyers”. the basis of reflections on current law of our country should work harmoniously with common law nations. emerged well-received works on the of freedom of speech”. Sexton sees a bill of rights as political issues and prime ministers This edition is divided into five chapters. The first chapter covers Whitlam government, Australian The world of political correctness undemocratically shifting power including Menzies, Turnbull, Fraser, introductory matters: the historical development of the admiralty jurisdiction involvement in the Vietnam war, and gets a going over. Although he held from the legislature to the unelected McMahon, Whitlam and Keating. in England, Australia and other jurisdictions; a jurisdictional overview of the legal profession. His professional a spot on the board of the Sydney judiciary. He is critical of both the Generally, Sexton is not backward various common law jurisdictions; and a brief but interesting examination of career then moved to practice in Writers’ Festival, he is critical of the Victorian and ACT charters of rights in providing advice to the Liberal constitutional issues in Australia and in Canada. NSW in defamation and public law as lack of contrary opinions among and publicly opposed a Queensland Party and is no fan of the Greens. The second chapter, entitled “Courts and Jurisdiction”, includes an well as directorships of government the presenters and the problem of proposal. Although these pieces have all introductory examination of the action in rem, that is, an action—in most instrumentalities. For approximately “getting any response from the smug On his account, disputes over been previously published and circumstances—against a ship. It also considers the fascinating and by no the last 20 years, he has been the holders of the conventional wisdom the “compromised” appointment of directed to a lay audience, lawyers means completely settled question of what is a “ship”. second law officer of NSW. All the [such that one] can only hope that judges to the US Supreme Court form interested in a bracing antidote to The third chapter considers the two general types of admiralty claims: while during his career, he has eventually there will be a reaction the basis of his admonition that bills the prevailing orthodoxy on a wide proprietary maritime claims (for example, disputes as to possession, title, co- contributed op-ed pieces to the against the current claustrophobic of rights will similarly politicise our range of current and recurring ownership) and general maritime claims. Within this second type of claim, we mastheads of both the Fairfax and climate of opinion”. That climate, High Court. In his view, the judiciary, public issues from a deeply find claims involving loss of life, loss of cargo, agreements for the hire of ships, News Ltd media empires and The according to this opinion leader, is even the highest courts in the UK thoughtful author will find plenty salvage, towage, pilotage, port and harbour dues, crew’s wages, and many more. Spectator. that key institutions in Australia and the US, has too much say in of food for thought in this volume. The fourth chapter, entitled “Practice and Procedure”, delves more deeply These contributions, which the are dominated by “humourless politics. Michael Sexton may even change into actions in rem. These are to be contrasted with actions in personam, with author describes as being “in the preachers of PC conformity”. He In a section headed “Australian your views. which we are very familiar in common law jurisdictions. main a departure from what might mentions same-sex marriage, climate Politics”, the author weighs in on the The final chapter deals with procedural rules. Here, matters such as service, be characterised as the conventional change, depictions that Australia is appearance, caveats against arrest, caveats against release, bail bonds, and wisdom, that is, the views and values essentially racist, support for a bill of Dissenting Opinions Admiralty Jurisdiction valuation and sale are considered. of those who preside over most rights, scepticism of police and law (5th ed) For those starting out in admiralty law, this is a must-have, foundational public and private institutions in enforcement, indifference to border by Michael Sexton by Dr Damien text. For those who have practised in the area for some time, there is plenty to Australia, including much of the security, and hostility to Israel. What Connor Court Cremean, discover about how the law operates in other common law jurisdictions. media”, have been compiled into a a bill of fare! Yet on each of them Publishing, 2020 The Federation Dr Cremean is to be congratulated on this excellent new edition of his volume structured around recurring he prosecutes a considered case Paperback, 320 classic work. themes of public discourse in this that there are alternative views that pages, RRP $39.95 Press, 2020 country. His aim is that there will are not tolerated: “It is as if those RRP $265 1 O.W. Holmes, The Common Law (MacMillan & Co, London, 1882) page 26.
106 VBN VBN 107 boilerplate
obert Larkins, a member of the Victorian approved and ordered relocation to In many ways, Buckley’s life with the Wallarranga The Personal History Bar, has written a lucid, entertaining and the Derwent in Van Diemen’s Land. was better than any life he could have expected in well-researched history of the life and The Port Phillip settlement lasted boilerplate England. He enjoyed a balanced and generous diet times of William Buckley. The previous less than six months. Collins left for of William Buckley: biography of William Buckley was written the Derwent area in early 1804 and consisting of kangaroo, fish (salt and fresh water), by James Bonwick over 150 years ago, with subsequently was instrumental in eel, tubers and other vegetation. Murrangurk among the title of The Wild White Man and his Port Phillip Black establishing Hobart Town. Friends, or at least that was the case until a few months ago Meanwhile, Buckley decided that Buckley accompanied clan members of this prompted Governor Bourke to when three separate biographies of Buckley were published resettlement as a convict for life in Van on expeditions from the village for send Captain Lonsdale and 30 soldiers the First People, in quick succession. I enjoyed Larkins’s account. He shows, Diemen’s Land was not for him. He hunting and pleasure purposes. Later, down from Port Jackson. Lonsdale Rin his writing, great respect for the First People and a made his escape from the settlement of course, European disease and assumed the role of magistrate and by Robert Larkins sensitivity to their plight in the face of forceable European just after Christmas 1803. Instead of settlement would have a catastrophic appointed Buckley as a constable. settlement and displacement. Larkins’ book is written in an heading directly for Port Jackson, he effect on the Kulin’s timeless culture. Governor Bourke paid a visit. He I J Hardingham easy to read style and incorporates a number of interesting travelled around the bay in the hope Following Nullaboin’s death, named the settlement Melbourne historical asides and anecdotes. that he could lure a rescue boat across Buckley struck out from the clan. after the British Prime Minister, Lord William Buckley was born in 1780 in Cheshire, England. to the Point Lonsdale area, seize the In 1835 he came across an advance Melbourne, and approved Robert He became an apprentice bricklayer but cut short his boat and make his way north to Port party of the Port Phillip Association, Hoddle’s rectangular plan for the apprenticeship to join the army. While on leave, Buckley Jackson. Buckley could not put his plan Launceston based backers of John town’s layout. participated in the theft of several bolts of cloth. Following into effect and so he found himself Batman’s proposal to establish Bourke named some significant his arrest, he was put on trial before Baron Hotham at the in desperate straits, lacking proper European settlements at Indented streets on the plan: Bourke Street, Lewes Assizes, found guilty and sentenced to death by clothing and sustenance. Head (later abandoned) and at the Collins Street, Lonsdale Street and hanging. This was in August 1802. Ultimately, the death Near to death, Buckley was saved by head of the bay on the Yarra River. Swanston Street, the latter named sentence was commuted and Buckley’s sentence became some people from the Wallarranga clan Buckley was ultimately persuaded to after Charles Swanston, banker to one of “transportation beyond the seas for the term of [his] which was part of the Wathawurrung join John Batman’s team because of the Port Phillip Association. The natural life”. Buckley was incarcerated in a hulk moored on community, one of five communities his knowledge of local language and names of Batman and Fawkner are the Thames pending transportation. making up the Kulin Nation. Buckley customs. noticeable by their absence. Meanwhile, fear of potential French settlement in the was taken to the clan’s village situated Meanwhile, John Pascoe Fawkner Having been hounded and vilified Port Phillip area caused New South Wales Governor King on Lake Connewarre on the Barwon who, as a child, with his family, had by Fawkner over an extended to request the establishment of a British settlement there. River. The clan believed that Buckley been one of the settlers at Sullivan period, Buckley decided that he In December 1802 Lord Hobart sanctioned the proposed was a deceased warrior reincarnated. Bay under Lieutenant Governor would resettle in Van Diemen’s settlement. He was assigned that deceased warrior, Collins, had his own plans to Land. He left for Van Diemen’s Land In 1803 King George III appointed David Collins as Murrangurk’s, name and adopted by establish a settlement on the Yarra. on 28 December 1837 and settled Lieutenant Governor of the proposed colony at Port Phillip. the family of his brother, Nullaboin. Kulin people observing the in Hobart. He married in 1840 and William Buckley was chosen to be part of the first fleet to Buckley lived happily with the clan activities of Batman and Fawkner died in 1856 aged 75, as a result of Port Phillip, probably because he was strong—he was over for the next 31 years, learning its were divided; some saw advantage an accident. six feet five inches tall—had building skills and was a non- language and customs. It seems that in working with the settlers, others Batman died penniless and violent offender. The fleet, consisting of two ships with over he made every effort to fit in with the thought that the best course was to noseless (syphilis) aged 38. Fawkner, six hundred people including crew, convicts, and settlers, way of life of the Wallarranga and was drive the settlers away by force. despite a period of imprisonment, a took six months to complete the voyage to Port Phillip via careful not to give offence in any way. Buckley’s knowledge and capacity flogging and his vocation as a “blood Rio de Janeiro, Cape Town, the Indian Ocean and Bass Strait. In many ways, Buckley’s life with to negotiate were used to calm house” publican, went on to become a The settlement was established at Sullivan Bay near the Wallarranga was better than matters down and, by placating person of considerable influence and Sorrento, close to the Heads so that any French incursion any life he could have expected in the opposing factions, to minimise a member of the Legislative Council. would be easily observed. It was a disaster from the outset— England. He enjoyed a balanced and bloodshed. With wool and gold, Melbourne there was a lack of fresh water and fresh food. Nothing would generous diet consisting of kangaroo, At this time, John Wedge, the outgrew its shanty town’s image and grow except, prolifically, agapanthus the bulbs of which were fish (salt and fresh water), eel, tubers Port Phillip Association’s surveyor, thrived. The First People of the Kulin acquired in Cape Town. Discipline started to break down and and other vegetation. The clan arranged a pardon for Buckley from Nation were discarded and displaced there was a fear that, if the First People mounted a full-on worked shorter hours than Buckley Lieutenant Governor Arthur in Van by one means or another. attack, the settlers would be outnumbered and out fought. would have been used to and had no Diemen’s Land. I would encourage members of the In these circumstances, Collins asked Governor class or caste system. Until a later In 1836 the European settlement on Bar to read this book which not only King for permission to abandon the settlement. King time, the clan was not exposed to the Yarra River was a lawless shanty gives an account of the life of a most European disease. Buckley mediated town. It was unauthorised under interesting figure in Victorian history The Personal History of William Buckley: Murrangurk inter-clan disputes that may otherwise British law. It was unnamed; John and of the hospitality and care afforded among the First People have led to loss of life. He never had Wedge wanted to call it Batmania. him by the Wathawurrung people over to mediate land disputes because it Drunkenness, violence and disease 31 years, but also provides insights into Robert Larkins was unheard of that one clan would were rife as were brutalised ex- the dubious history of early settlement Arcadia 2020 XV + 248pp RRP $44.00 attempt to seize another clan’s land. convicts from Van Diemen’s Land. All at Port Phillip.
108 VBN VBN 109 image courtesy of the nla courtesy image Comfort Food TV during lockdown,
boilerplate for inspiration over summer
NATALIE HICKEY The show that came closest to popular
ecently, the Chief Health One fan of Ryan Murphy, the consensus was Schitt’s Creek. This comedy central / the hollywood archive Officer for South Australia, American screenwriter, director and Canadian sitcom created by Dan Professor Nicola Spurrier, producer, thanked him for “some Levy and his father Eugene, follows recommended that residents find a gorgeous escapist fantasy”with the trials and tribulations of the Rsafe place for a ‘Netflix blitz’, as that Hollywood and The Politician. To formerly wealthy Rose family after state entered a short, sharp lockdown. provide an idea of the tone of the they must adjust to life without money In Victoria, we know exactly what she genre, in The Politician, ‘Payton in Schitt’s Creek, a small town they is talking about. Hobart’ has dreamed of being elected once purchased as a joke. ‘How good As we navigated a long winter President of the United States is Schitt’s Creek?’, said one committee and spring in lockdown, since childhood, and is running member. Another warned that one had streaming platforms and for student body president to get past the first season, after which free-to-air television kept against the popular and things picked up. That led to sharp us going. Television became athletic ‘River Barkley’. rebuttal from a third, ‘I was hooked from a form of comfort food, For those more interested the first minute that I watched. Perhaps providing consolation or a in political thrillers, The I’m an easy audience (I don’t think so)’. joseph richardson / alamy stock photo feeling of well-being. Bureau is a French series RuPaul Drag Race UK What shows induced RuVeal at Manchester which revolves around your sphere, the concept is simple. feelings akin to a sugar rush Pride 2019. the lives of members Fourteen contestants compete for or satiation? At Bar News at of France’s foreign the coveted title of America’s least, lots of them! Shows nominated intelligence unit, the DGSE Next Drag Superstar and a by members of the committee were (General Directorate of prize package that includes eclectic and disparate, a fair reflection External Security) and $100,000, a ‘sickening supply’ of the composition of our group. Here their lives working under of cosmetics and a headlining is a short list to explore (if you haven’t deep-cover, or when returning spot on the Drag Race Tour. Originally called Bron already), when relaxing over summer. to their former lives in an / Broen, The Bridge Comfort food TV is many For many, lockdown was a family attempt to discover some stars Kim Bodnia and things to many people. For some, Sofia Helin. affair, influencing choice and the need semblance of normalcy. One it is about gore and horror, such
to accommodate a variety of tastes. One person referred to this as, as The Terror. This is a Ridley filmlance international ab / cortesia album member had a weekly Family Movie “clever taut and sophisticated, Scott produced series based on Night which had to satisfy three quite demonstrating why long form television the true events of Arctic exploration on different young adult children. As this is the art form of the early 21st century … a boat called the Terror, complete with person observed, “There have been five stars.”Watch this show accompanied other worldly hauntings and “good a lot of weeks this year.”. Selections by a glass of Beaujolais. old-fashioned cannibalism.” There is which nevertheless received a thumbs For others, the aim was to keep also The End of the F*&#ng World, up from those harshest of critics things light: “I have been watching “full of teen angst and murderous included Asterix – Mission Cleopatra re-runs (i.e. have already watched gore initially, but actually a really (“an oldie but a goodie”), Moonlight, all seasons) of Ru Paul’s Drag Race. deft examination of the subtleties Chicago, Les Choristes, The Boy who My pandemic brain could not deal of trust and friendship.” One must Harnessed the Wind, RBG, and I am with anything remotely serious, nor also not forget The Bridge, although Woman. new.”If the show has not yet entered “my husband now thinks we should avoid Scandinavia if we want to not
The Big Lebowski, directed by Joel and Ethan Coen, starred Jeff Bridges as Jeffrey “The Dude” Lebowski, Steve Buscemi as Donny be murdered by some very creative Kerabatsos and John Goodman as Walter Sobchak in this cult classic about The Dude’s journey for compensation for his ruined rug. serial killers.” Given this list, it does not surprise that this committee member has just started watching the latest season of Fargo set in 1950s Minnesota. To conclude, one committee member was succinct, “The Big Lebowski for me.”
110 VBN VBN 111
bfa / alamy stock photo VICTORIAN BAR MEDIATION CENTRE
MEDIATION CENTRE
Purpose-built mediation and conference rooms in the heart of Melbourne’s legal precinct.
The Victorian Bar knows how important the mediation process is. We’ve put our experience and knowledge into creating the right space to support parties through mediation.
WE OFFER
• Modern neutral decor with abundant natural light • Business room and printing facilities • Reception and administration services • Fully equipped kitchen with tea & coffee making facilities • After hours operation available • Video and teleconferencing facilities • Central location within Melbourne’s legal and business precinct • Secure free Wi-Fi
vicbarmediation.com.au P 03 9225 6930 E [email protected] Level 1 & 3, Douglas Menzies Chambers, 180 William Street Melbourne 3000