2014 Ormond Papers - Blurred Lines

You are, of course, responsible for your own actions. No one suggests otherwise: “Men at some time are masters of their fates; the fault, dear Brutus, is not in our stars, But in ourselves...”

But you and the victims were under a malevolent star that Anzac night.10 Essentially, this decree insinuated that the actions of both Whiteside and Dieber, whilst condemnable, were, to some extent, influenced by providence – an ‘unfolding tragedy’11 beyond their control. Thus, with much community outrage and judicial critique, both men were released from custody.12 Although a later appeal found Justice Cummins had erred, consequently re-sentencing both Whiteside and Dieber to six years imprisonment, it nevertheless begs the pertinence of literary allusion during judicial proceedings, specifically with regards to the use of literary allusion by judges in sentencing.

A Definitive Coexistence As displayed in the aforementioned cases, the definitive coexistence of both literature and judicial ideologies within the legal realm is a valuable, yet undeniably disconcerting actuality. Valuable, in that the reading of literature strengthens of understanding of law; disconcerting in the misapplication it can entail.13 Whilst it is inescapable that judicial ideas be conveyed in words and sentences, due primarily to the literary inclination of contemporary judicial education, R v Whiteside & Dieber demonstrates the resulting inaccuracy and misimpression that literary allusion can create.14 Justice Michael Kirby, a prominent judicial figure in the Australian community, is quick to note the dangerous nature of literary-judicial symbiosis, stating, ‘The power of such thoughts can be dangerous’15.

Conversely, Meehan and Posner are emphatic in supporting the symbiosis of literature and judicial proceedings. Posner, in particular, explains that literature ‘is a source of historical knowledge that deepens our understanding of general philosophy, legal theory, legal processes, differences between legal systems and interpretive methods’16. Alter agrees, identifying the benefits of reading and education in classical and contemporary literature as ‘improving ability to grasp analogies, parallelisms, antitheses, significant repetitions, ellipses [sic], ironies, double meanings, even cryptograms’.17 The Influence of Literary Education If such thought is to be considered potentially dangerous, as Kirby suggests, we must first determine the manner in which this definitive coexistence originated. According to Posner, the foundations of literary knowledge are laid during primary education and substantiated during higher learning, for ‘ordinarily, they have been educated in literature’.18 Kirby makes allusion to the literary element of both primary and tertiary education as crucial to the development of both legal rhetoric and understanding. In his mind, ‘the parallels between literature and law’19 encouraged the utilisation of both imagery and ideology that can be drawn from creative writing. Villez agrees, identifying the manner in which legal understanding is enhanced through literature as critical to the advancement of 98