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Spring 1999, U ID 71", x I., J^A Nv kc!!N -:too ° 1 U- r- - - -'- - I h -. ri1. - '- - - - - --- - 4 ----- J - h '- - --•• - - -- - -- ) --•; -- / ? ..•-:,•; - t -- . - / - Al - TI.) CONTENTS ,K Bar, d Note 2 ATIO. J .— Message from,the Presidnt .3 Spring 1999, u.. h . Bar Notes. .................................................................................................................... \) i? I, / Th'e .Future of Adversarial Justice Editorial Board' I - 11, ... t• 'I Sir ' l RuthMcColl S.C. (Editor)U..I r..................................................................................... ntl3''' c - rrFSi . ti, ) WI 1XI Ô7Out' Andrew Bell; ' s " nd r...i/ raphs from the tribute dinner for - -G- regSirtes— •'eter Porter :'! rank McAlary QC and Tom Hughes QC ......................................... 15 Katherine A Hero ofthrJSW Bar - Kate Southam I ibut r-ad at the memorial service for Sir Maurice Byers CBE QC .............................. 27 (Bar Association) The 50th Anniversary of Melbourne Corporation v The Commonwealth Christine Lancaster (Bar Association) The Honourable J W Shaw QC MLC NSW Attorney General................................... 31 Right to Silence - a Response to the Honourable Justice G L Davies' Paper Mark lerace ............................................................................................................. 33 Editorial Print/Production Rodenprint Ceremonial Sitting to Mark the 1 75th Anniversary of the Supreme Court of NSW.......... 37 175th Anniversary of the Supreme Court of NSW............................ 38 Dinner to Mark the Design and Layout Watch This! Design Lord Denning of Whitchurch tribute by Steven Rares s.c......................................................................................40 Issue Waiver - Doctrine or Heresy? JustinGleeson ..................................................................................................... .43 Jim McClelland tribute by the Honourable Jerrold Cripps QC ........................................................ 46 Portrait of the Barrister as an Artist FrancoisKunc.......................................................................................................... 48 Appointments & Retirements - Judiciary Update.............................................................. 50 Laurence Charles Gruzman QC tributeby C J Stevens QC ......................................................................................... 61 ISSN 0817-002 Honourable Alan Victor Maxwell ac Views expressed by contributors to His Excellency the Honourable Gordon Samuels QC .............................................. 62 Bar News are not necessarily those of the Bar Association of NSW. Some TnThoughtsts on Courtesy RickBurbidge QC.................................................................................................... 65 Contributions are welcome and should be addressed to the Editor, Restaurant Review - Like MacArthur. ..l shall return Ruth McColl S.C., 7th Floor, Wentworth Chambers, 180 Phillip John Coombs QC ..................................................................................................... 66 Street, Sydney, NSW 2000. DX 399 I D Sydneyor email: OOi eviews................................................................................................................. [email protected] Lady Bradman Cup Barristerswishing to join the Andrew Bell.............................................................................................................. 69 Editorial Committee are invited to write to the Editor indicating the 15th Great Bar Boat Race. areas in which they are interested inassisting. Des Kennedy ............................................................................................................. 1 EDITOR'S NOTE VARIETY OF FACTORS have thwarted the publication of Bar News in recent years. In A 1999 the combination of a rush of blood to the editor's head and a new editorial board inspired a return to production. This issue is intended both to bring current events to notice as well as to catch up with some which are more historical. On reviewing the materials received in recent years from authors with more confidence in the editor's reliability in the publication area than warranted by recent performance, it was felt that there were some articles which, though of (relative) antiquity nevertheless warranted publication. Similarly, a number of significant events have occurred since the last edition, both in terms of judicial appointments and, sadly, the passing of legal luminaries. Again, in the interests of conveying an historical perspective, a number of speeches and tributes relating to such events have been included in this issue. It has not been possible to include all speeches on all judicial appointments, nor to pay tribute to all who have left us. Omission of any event or tribute is not intended to be disrespectful. Ruth McColl S.C. 2 MESSAGE FROM THE PRESIDENT V 2>1 I;F[L I DON'T KNOW HOW or why I obtained the document, but I class-biased'. Norton was fairly direct in his criticism recently came across publication No.2 of the Law Reform publishing, amongst other things: Commission of Uganda of October 11977 entitled The Your consistent conduct on the subordinate bench has been I Venereal Diseases Decree, 1977. The document is actually alternately that of an idiot and a brutal bewigged bully. Some of your judicial obiter dicta - the obstreperous observations of an a statement by His Excellency Al - Hajji Field Marshal Dr. Idi ignorant, irascible, jury-ranter - would seem to indicate that a Amin Dada, VC., D.S.O., M.C., C.B.E., Life President of padded room at Callan Park would be a fit and proper abiding Uganda (as he then was or perceived himself to be) It reads, place for you .... You are one of the opprobrious spawn of the old Convict system and would, had not Providence delayed your in part: advent to this world in order to curse our Courts, have made an The Life President wishes also to remind all Provincial admirable member of the military rum-selling mob of martinets Governors and Chiefs and all Security Officers concerned that who mercilessly murdered, by the mockery of judicial process, when the Life President makes laws, he expects them to be men and women at the triangles and on the gallows. You are the enforced with vigour and to be obeyed by all people without hereditary lay descendant of that old parsonical pirate, the exception. It therefore causes him distress to see that despite 'Reverend' Samuel Marsden ... Your vagaries on the bench this, there are many jobless people still roaming about in towns. recall the pothouse vapourings of a drunken man. A special These are the people who turn out to be kondos, particularly at session of Parliament ought to be called to put an end to your night. These are the same people who harbour venereal official existence. (Wild Men of Sydney, Cyril Pearl) diseases. Such people must be rounded up, treated and taken to places of training. Those who are taken to court and convicted I do not know what happened to Judge Docker (usually must not be given useless light sentences. Courts too must rise referred to by Norton as Dingo Docker) but the District up to the occasion, for they are serving in a Military Court survived Norton. The problem these days is that too Government. often the courts come under quite mindless political attack, The separation of powers in Uganda in 1977 became a little which is then pursued by the press, enthusiastically supported blurred; its judges had a somewhat fragile claim to by the same politicians. Typical of this sort of onslaught is independence. But some of the words have a familiar ring. when the sky fell after Mabo and Wik. For example, the How often in Australia in 1999 have you heard the populist member for Kalgoorlie disposed of the Mabo judgment by clamour of politicians and others accusing judges of not calling the High Court judges piss ants; others gleefully doing their job, telling them they must try harder, they should followed suit in less vulgar but equally destructive language. bend to community attitudes and heed the strident demands In recent years Chief Justices in Australia have become more of press and politicians? Sometimes the clamour goes so far willing to talk to the press, in face to face interviews, a as to demand that if judges make what the popular press process which I applaud. But judges cannot be expected, nor perceives to be errors of judgment, they should resign. permitted, publicly to respond to unfair ad hominem attacks, Judicial independence from the Crown was a hard won thereby becoming embroiled in public controversy. For that victory for Parliament as well as the judiciary. The Act of reason, although the circumstances were extraordinary, I Settlement of 1701 was in parliament's interests. New South think Justice Bruce's appearance on 60 Minutes was Wales parliaments are now unlikely to be in dispute with the unfortunate. Attorneys General, neither Commonwealth Crown, but the need for the independence of judges from nor State, seem inclined to come to the defence of judges; executive government is no less acute. Public perception of during the Kirkham controversy the Attorney's contribution the judiciary is all important. Freedom of the press is all was to support the Police Minister in his attack on the judge important. But the alacrity with which journalists are for discharging a jury. So if the judges can't defend disposed to publicly denigrate judges, often in
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