The Hon. Sir William Foster Stawell resigned from office as Chief Justice of the Supreme Court of the Colony of Victoria one hundred years ago (24 September 1886). He and the three other men on the cover were the first four judges of that Court truly selected by the infant Colony.
His predecessor as Chief Justice was a'Beckett c.J , who was in a real sense chosen for the Colony, as he had previously been the resident judge for the Port Phillip District of N.S.W. Stawell succeeded him in 1857 :-
Sir Edward Eyre Williams J., who was appointed on 21 July 1852 and who resigned on medical advice on 30 April 1874. He , a Beckett c.J. and Barry J. were all appointed in the first year of the life of the Court.
Sir Robert Molesworth J., who was appointed 17 June 1856 and resigned 6 May 1886. He, Stawell c.J., and Barry J. were all Irish born, of Anglo Irish stock, and all members of the Irish as well as the English Bar.
With some occasional replacements by acting judges, these four men served together as the judges of the Court from the time of Stawell c.J.'s appointment in 1857 until Williams J.'s resignation in 1874.
Sir Redmond Barry J., the first puisne judge of the Colony, who was appointed January 1852. He died in office on 23 November 1880, twelve days after the execution of Ned Kelly whom he had tried.
Photographs from the Bar 's collection
VICTORIAN BAR NEWS NO.59
ISSN -0 150-3285
Editors: Peter Heerey Q.c. and Paul Elliott
Editorial Committee: John Coldrey Q.c., Gerard Nash, Graeme Thompson
Staff: Julian Burnside (photography) , Max Cashmore (sporting) , David Henshall {cover}, Tony Pagone (book reviews), Andrew Evans (artwork) , Richard Brear, Graham Devries, Sue and Michael Crennan , Harley Harber, Judy Loren, Joan Smith
Teaching Advocacy
The Practicality of Plain English
Historical
- Old times at the Old Bailey
- Flaw-Hunters and Sharpshooters
Sporting - Go for it! Lawyer Cricketers in West Indies Bill Gillard Q.c.
- Wanted: Cricketer Barristers
- Bar Hockey
Cultural
- Lunch - Verbatim
- Captain's Cryptic
- Words
- The Lawyer's Bookshelf
- Winners of Competition No.1
- Competition No.2
- Mouthpiece
- Croc's Corner
Conference Confabulations
Forthcoming Conferences
Solutions to Captain's Cryptic
Milestones
Movement at the Bar
Andrew Tinney
Colin Loritt
Ken Hayne Q.c.
Tom Danos
Published by Victorian Bar Council, Owen Dixon Chambers, 205 William Street, Melbourne, 3000
Opinions expressed are not necessarily those of the Bar Councilor the Bar.
Published quarterly . Deadlines for copy: 8th March, 8th May, 8th August and 8th November.
Phototypeset and Printed by Printeam Pty Ltd., 53 Elizabeth Street, Melbourne 3000, Phone 6145244.
The Editors' Backsheet
Trial by Circular
Recently, amongst the Law Book Company dodgers, Essoign Club wine-lists and other essential material which crams barristers' pigeon holes appeared a circular from tax guru Ian Spry Q.C. attacking the rental levels in Owen Dixon Chambers with a fervour that would have done the Tenants' Union proud. Barristers Chambers Ltd. Chairman Sek Hulme Q.C. was quick to respond with what we suppose could be termed a counter-circular Some telling points were made as to the difference between rentals of single rooms and whole floors, the cost of partitioning etc. etc. It was pointed out forcibly that tenants of Owen Dixon Chambers receive, apart from the use of their rooms, many benefits not available to tenants of the Rialto Building, the rentals of which had been the subject of unfavourable comparison by Spry Q.C. (Among those benefits of course is the priceless advantage of a free subscription to Bar News.)
Spry Q.c. bounced back with a reply (re-circular?), but the growing numbers of aficionados of this new intellectual bloodsport were disappointed to read in it of his retirement from the field. Perhaps some of the more contentious issues before the Bar Council might be debated in this fashion. Each circular could contain a yes / no slip which could be torn off and returned by the recipient. Or L.M. Ericsson Pty. Ltd ., that supplier of superbly efficient and reliable communications equipment, could install VDU 's suitably programmed to receive responses.
Beached
The publishers of Gatley on Libel and Slander are holding the presses for the new edition to await the outcome of sensational and complex litigation involving mild-mannered building case expert and former Bar News editor David Byrne Q.C. and thespian, foreign correspondent, beachcomber and all round bon vivant S.K. Wilson. Readers of Spring 1986 Bar News will recall a picture showing a gentleman referred to as "the author" lounging on a Fijian beach and looking like the "Before" part of a particularly tasteless WeightWatchers ad. At the bottom of the column (as a result of an uncharacteristic gaffe by our eagle-eyed proof readers) appeared David Byrne's name. It should of course have appeared at the foot of the left hand column. Over the page, at the end of the Fiji piece, the true identity of the beach figure appeared, viz S.K. Wilson. Which of the two has been brought into the greater degree of public odium, 3
hatred, ridicule and contempt should keep a number of our colleagues pleasurably and profitably engaged for some time .
Jack Hyland
To survive, let alone flourish, for 25 years as a barristers' clerk must call for the endurance of a De Castella, the astuteness of a Holmes a Court, the compassion of a Mother Teresa and the promotional touch of a Paul Hogan. On Friday 10th October a large and distinguished gathering of present and past members of List H, accompanied by wives/ husbands/fiancees/close friends/casual acquaintances testified to the widespread belief that Jack "Crocodile" Hyland has all those qualities, and more. His Honour Judge Villeneuve-Smith, in the course of an educational speech, revealed hitherto secret proposals for a Barristers Clerks Accountability Board, to be chaired by Mr. Bernie Teague. We are confident that Jack Hyland would have nothing to fear from such a body.
Among former members of the list present was His
Excellency the Governor-General.
Contrary to persistent rumour, it must be recorded that Vice-Regal appointment is not one of the floaters regularly available for members of List H, at least not in the experience of the Editors.
Alex Chernov Q.C.
After the Annual Elections Alex Chernov Q.C., concluded a term as chairman and handed over the tiller to helmsperson Phil "Fabulous" Cummins Q.C. The demands made on the Chairman of the Bar Council are increasingly onerous Unlike the heads of most other professional bodies, the Chairman has no partners or employees to "mind the store" and must try to combine a heavy practice with the obligations of office Alex combines outstanding professional abilities with a genial and unflappable disposition which made him a most effective and successful chairman.
The English Bar
The low income levels of many members of the English Bar was touched on in the Spring '86 issue of Bar News when we reported on the unprecented action brought by the Bar against the Lord Chancellor.
It appears now that the separate identity of the English Bar is under attack, at least in its present form. Although the Royal Commission on Legal Services 1979 (appointed by a Labour Government) unanimously reported that the public interest was best served by a separation of the two branches of the profession, Professor Michael Zander of the London School of Economics, writing in a recent issue of "The Illustrated London News" claims that: SUMMER 1986
" there is a significant and increasingly respectable school of thought in the higher echelons'" of the Law Soci ety that believes that all lawyers ought to be train e d as solicitors and that the independent Bar should consist of a higher level of specialist. All lawyers would then have the right to app e ar in any court. If this view wer e to prevail, there would be no more monopoly over advo cacy and the bar would be drast ically slimmed down "
The English Bar presently has a monopoly of advocacy in the Supreme Court of Judicature (Le High Court, Court of Appeal and House of Lords) and the Crown Court. Despite these advantages, it is already much slimmer in terms of the proportion of barristers to solicitors than is our Bar, which of course has no monopoly at all (a fact often overlooked in some quarters at the Law Institute) In England and Wales there are 46,000 solicitors and 5,000 barristers. In Victoria the compa rable figures would be about 6 ,000 and 1,000 . On a population basis the comparison is even more stark. The approximate ratio of barristers per head of population in England and Wales would be 1 in 10,000, in Victoria it is 1 in 5,000 .
Mr. Justice Ryan
His Honour came to the Bar after education at Dandenong High School and Articles at a small city firm with a practice conSisting almost entirely of conveyancing and probate.
His Honour's career at the Bar, in which he became one of the country 's leading advocates in the industrial law field and was frequently briefed to appear before the High Court , shows that connections and influence are of little importance in today 's highly competitive profession.
We are not suggesting that a background at Melbourne Grammar, Trinity College and Blake and Riggall is actually a handicap to success at the Bar, only that it is of less importance than sometimes suggested.
Is this a record?
... as the talking scales said to the fat lady. In recent years a regular feature of the list of appOintments to Silk has been the appearance of a former reader of Gobbo J This year there is another, making a total of no le ss than six The full list is John Walker Qc. (1980) , David Byrne Q.c. (1982) , Richard Stanley Q.c. (1983), Peter Buchanan Q.c. (1984), Peter Heerey Q.c. (1985), and David Harper Q.c. (1986). Compelling evidence that those who had the good fortune to occupy a reader's desk in his Honour's chambers acquired more than a taste for frascati and pasticcio di lasagne verde
The Editors
Bar Council Report
Chairman
Upon 30th September 1986 , p.o. Cummins Q.c. was elected Chairman of the newly elected Bar Council for the year 1986 / 1987.
Bar Council Elections
The following members of Counsel have been elected members of the Bar Council for the year 1986/1987 :
Counsel of not less than 12 years' standing:
p.A. Liddell Q.c.
A.w. McDonald Q.c.
P.D. Cummins Q.c.
D. Graham Q.c.
M J L. Dowling Q.c.
EW Gillard Q.c.
B.K Dove Qc.
D.M. Byrne Q.c.
KJ. Stanley Q.c.
B D. Bongiorno Qc.
D L. Harper
Counsel of not less than 6 nor more than 15 years' standing:
D.L. Habersberger
M.G . Mcinerney
M.B. Kellam
J.E . Middleton
Counsel of not more than 6 years' standing:
AL. Cavanough
e.J. Ryan
J.J. Isles
Retiring Members
The appreciation of the whole Bar Council was conveyed for the outstanding contribution over many years of Alex Chernov Q.c., J.J. Hedigan Q.e., and J.E. Barnard Q.c.
Young Barristers' Committee
The Chairman of the Young Barristers' Committee reported that the following members were elected to the Committee for the 1986/1987 year:
G.M. Randall
Ae. Marshall
P.R. Gibbons
AJ. Mcintosh
J.E. Goetz
PA D'Arcy
J.F. Carmody
e.B. Thomson
M. Sexton
M.M. Williams
Second Biennial Conference of the ABA
A shortfall of $41,965 in expenses for the running the the ABA Conference in Alice Springs has been met by contributions from the Victorian Bar, the New South Wales Bar and the Queensland Bar.
Annual General Meeting
The Annual General Meeting of the Bar upon 22nd September 1986 was attended by the Chairman Alex Chernov Q.c. and approximately 43 other members of Counsel. The Financial Statement for the year ended 3rd August 1986 was tabled.
Law Council
After further discussions between the Chairman and the President of the Law Council it was finally resolved to give notice of the withdrawal of the Victorian Bar Council from the Law Council of Australia effective from 30th June 1987. The Bars of New South Wales, Queensland and A.c.T. have also all given notice of their withdrawal from the Law Council effective from 30th June 1987. This resulted from structural changes to the Law Council such that its decisions would no longer be decisions of constituent members only, but would be made henceforth by individual members, Chairman of Sections and members of the Executive.
Ethics Committee
The following persons have been appointed members of the Ethics Committee for the 1986/87 year:
Barnard Q.c. (Chairman)
Hedigan Q.c.
Uren Q.c.
Hansen Q.c.
Bongiorno Q.e.
Hooper, B.M.
Rozenes
Ryan, e.
Colbran (Secretary)
Superannuation
A Sub-committee of the Bar has been formed, comprised of R. Gillard (Chairman), Heerey Q.e. and Hammond, to obtain increases in the deductible amounts for superannuation contributions. Spry Q.c. and the Trustees of the Superannuation Fund have been thanked for their excellent work in relation to superannuation.
Dinner for the Honourable Sir Harry Gibbs
A dinner was held by the Bar Council at the Essoign Club upon 7th November 1986 in honour of Sir Harry Gibbs as that day was the last occasion upon which Sir Harry Gibbs sat in Melbourne. James Merralls Q.c. proposed the toast of Sir Harry Gibbs. Sir Harry Gibbs in his reply expressed his pleasure in the occasion and his appreciation, of a gift from the Victorian Bar.
Supreme Court Rules Lectures
The new Rules of the Supreme Court come into operation on 15th January 1987. Master Maloney will deliver three lectures this year to introduce members of the Bar to the new rules.
Ethics Committee Report
(Editors' Note: No report was received from this Committee. Either members of the Bar have been extremely ethical since the last issue or the Committee has been so busy it hasn't had time to do a report.)
SUSAN CRENNAN
Night Courts
I have appointed a committee, chaired by the Chief Magistrate, to inquire into the feasibility of holding night courts. The Chief Magistrate visited New South Wales earlier this year to look at the operation of the night court at Bankstown. If the committee recommends that night court sittings be introduced, I would envisage sittings being held on a trial basis for one night a week at the Prahran, Broadmeadows and Geelong courthouses.
Crimes (Grand Juries) Bill
This Bill will repeal section 354 of the Crimes Act 1958 which establishes procedures for the summoning of a grand jury. The grand jury procedure was introduced into Victoria by legislation in 1874 That legislation remains largely unaltered today
Section 354 provides that application can be made to the Full Court of the Supreme Court for an order that the Sheriff summon not less than 23 men to form a grand jury to consider whether an accused person should stand trial for an indictable offience. This application may be made in any case by the Director of Public Prosecutions (or formerly a law officer) or by any person, in the follOWing circumstances
• first, when it is alleged that an indictable offence was committed by a body corporate
• secondly, when a justice has refused to commit an alleged offender for trial, or
• thirdly , when a justice has committed a person for trial and that person has not been presented for trial.
An application for a grand jury may be made to the Full Court in the absence of the accused person . The court has no power to examine the strength of any evidence ; it has held that it is bound to order a summonsing of a grand jury if the prosecutor's affidavit discloses facts which, if true, amount to an indictable offence. The grand jury must sit and deliberate in secret. The accused person is not permitted to be present and a judge is not present. The grand jury must examine witnesses produced by the prosecutor and determine whether the accused should stand trial. They must consider only legally admissible evidence but with no judge and no accused person present there clearly is no possibility for objections to, and rulings upon , the admissibility of evidence .
The grand jury procedure has received trenchant criticism from a number of Supreme Court judges. In 1899 the Chief Justice, Sir John Madden, described the grand jury procedure as one "which has already led to misuse" but went on to say that the Supreme Court was bound to apply the law absent any considerations of injustice which may flow. The procedure was described by the Full Court as "quite inappropriate" in the recent case of McArdle v. Campbell.
Prostitution Regulation Bill
This Bill is based on the recommendations of the wide-ranging inquiry into prostitution undertaken by Professor Marcia Neave It seeks to provide a comprehensive statement of the statute law governing prostitution in Victoria. The Bill relies on a mixture of criminal law, planning and licensing controls to tackle this difficult social problem
The criminal law relating to prostitution will, in future, focus on seeking to prevent exploitative practices. In particular, the Bill is aimed at preventing the involvement of young people in prostitution The present criminal law will be strengthened so as to ensure, as far as possible, that young people are protected from abuse or exploitation. A number of new, serious offences will be created addressed to child prostitution. In the case of adults, the Bill adopts the principle that prostitution-related activities should be subject to criminal penalties only to the extent necessary to protect adult prostitutes from violence or intimidation. Street soliciting is to remain an offence. The Bill will also make it an offence to publish explicit advertisements for prostitution services and to advertise employment in a brothel or escort agency.
In line with the policy reflected in the Planning (Brothels) Act 1984 brothels will be permitted where they have the approval of the relevant planning authority. Where three or more prostitutes work from a brothel the operator of that brothel must have a licence from the Licensing Board established by the legislation. The mechanism is designed to ensure that people associated with organized crime or crimes such as drug trafficking are kept out of the brothel industry.
The Bill is also accompanied by a range of welfare measures designed to redress the social circumstances which lead people to become involved in prostitution.
Trustee (Amendment) Bill 1986
This Bill adds a number of investments to the list of authorised investments which the Trustee Act 1958 allows a trustee to make from trust funds. The Bill recognizes that trustees should be able to invest trust funds in products in our increasingly sophisticated financial markets which offer secure return. It also recognizes the need to protect the interests of beneficiaries when funds are invested in these products.
The new investments are:
• Mortgage backed certificates. These certificates entitle the holder to an interest in the mortgagee specified in the certificate. The mortgage is held by a trustee on trust for the certificate holder. The certificates will only have authorized investment status if the mortgages to which they relate would otherwise have been authorized investments under the Act, if the trustee is a trustee company under the Trustee Company Act 1984 and if the trust documentation had been approved by the Corporate Affairs Office. Authorized investment status for these certificates will add to the depth of the secondary mortgage market.
• Bank endorsed bills of exchange where the bill matures within 200 days of the date on which it is acquired. Bank accepted bills of exchange have been authorized investments since 1969.
• Units in certain public trusts. Units will only be authorized investments where the trustee of the unit trust is a trustee company under the Trustee Company Act and where the trust deed under which the unit trust operates has been approved by the Corporate Affairs Office pursuant to regulations to be made under the Trustee Act.
• Shares and other securities, to be prescribed, in "approved corporations". Approved corporations must be publicly listed companies which are
incorporated in Australia and which satisfy conditions about paid up capital, the ratio of certain prescribed assets to certain prescribed liabilities and certain requirements about dividends declared or paid. These prescribed requirements are to be set out in regulations which are being prepared.
To ensure that trustees make careful and fully informed decisions about investing in and retaining units, shares and other securities, the Bill requires the trustee to seek the advice of an independent expert licensed under the Securities Industry Code before making an investment. The advice must be about such matters as the diversification of the trustee's portfolio and the trustee's other powers and duties. The Bill requires the trustee to seek the advice of a similarly licensed independent adviser every six months on the same matters. The Bill also sets out the trustee's liability if shares or securities are retained by a trustee after the issuing company ceases to be an approved corporation.
Supreme Court (Rules of Procedure) Act 1986
At the beginning of the Spring sittings, Parliament passed the Supreme Court (Rules of Procedure) Act 1986 which had the effect of validating the Supreme Court General Rules of Procedure in Civil Proceedings 1986. Parts 1 and 2 of the Act which effect the validation commenced operation on 14 October 1986. This means that under R. 1.02, the Rules commence operation on 1 January 1987. The Rules which abolish processes that are obsolete or anachronistic, and establish procedures for more effective determination of proceedings in the Supreme Court represent the most significant overhaul of those procedures in more than 100 years.
Supreme Court Bill 1986
The Supreme Court Bill 1986 which has been introduced into Parliament seeks to consolidate and amend the law governing the Supreme Court and will when passed replace the Supreme Court Act 1958. The Bill complements the changes in procedure made by the Rules and completes the procedural review of the Supreme Court commenced in 1975.
The Bill clarifies the jurisdiction to bring representative actions, introduces taxation of barristers fees and allows for lump sum and interim billing by solicitors. Another significant change introduced by the Bill is the abolition of the distinction between Chambers and Court. The Bill also removes references to obsolete writs and procedures so as to SUMMER 1986
dovetail with the Rules Finally, many provisions which have been re-enacted are now in plain English.
The Bill ensures that both the Act and the Rules are consistent and create no potential for confusion. The passage of the Bill will mean that the Victorian Supreme Court will be governed by the most advanced and rational legislation possible.
Planning appeals (Amendment) Bill 1986
The major reform effected by this Bill is to integrate the functions of the Planning Appeals Board into the Administrative Appeals Tribunal by creating a Planning Division of the AAT. The other important reform made by this Bill is to limit the circumstances in which the Supreme Court can deal with planning disputes, so as to ensure that the Planning Division of the AAT becomes the "one stop shop" for planning appeals in this State.
Under this Bill the Planning Division will have jurisdiction under all the Acts under which the Planning Appeals Board currently exercises power
A very important change, however, will be that the Planning Division will now have power to make declarations in relation to matters within its jurisdiction. That power must be exercised by a member who is a Country Court judge.
The Bill has been drafted to ensure that the virtues of the present Planning Appeals Board systemspeed, simplicity and low cost of procedures - is retained. Compulsory conference powers , the current informality of procedures, the ability to have single member divisions and the awarding of costs only in exceptional circumstances are features that have been retained. The President of the AAT will have overall control of the Planning Division and existing members of the Planning Appeals Board will be reappointed at equivalent levels to that held now.
Another major change effected by the Bill is that the Supreme Court is directed not to entertain a case which involves, substantially, a planning issue without first ensuring that the issue has been referred to and dealt with by the Planning Division of the AAT. Appeals from the Planning Division will go directly to the Full Court of the Supreme Court, and costs on appeal will not be allowed.
Criminal Bar Association Report
The Criminal Bar Association approaches the end of 1986 having had a very active agenda.
The year will in fact conclude with the Annual General Meeting of the Association on Tuesday the 2nd of December, 1986 , in the coffee room at Owen Dixon Chambers and that meeting will have been preceded by the last of the Association's famous social functions on the previous Thursday at Jimi (the Original) Greek Restaurant. That dinner was, so far as we can tell, the first dinner of an organisation of the Victorian Bar which proVided for casual dress, members to bring guests, and entertainment all in the same place and all part of the same price.
Fees
In many respects 1986 has been a difficult year for the Association, particularly concerning legal aid fees in the criminal jurisdiction including both fees for appearance in Court and fees for preparation where the preparation is such as to require a separate fee. The issue continues, albeit with a 7.5% increase in legal aid criminal fees operative from the 27th October, 1986.
The various problems with fees have been the subject of previous Criminal Bar Association Reports and will be set out in detail in the Annual Report of the Association. The problems are already well known to those who practice in the jurisdiction and the gap between legal aid fees, private fees and fees in other jurisdictions appears to be increasing all the time.
Law Reform
This year, the Association has prOVided a range of comments and views on a number of issues, including amendments to the Coroner's Act, various Victorian and Federal law reform papers and other matters referred to it by the Victorian Bar Council. Those papers are available from the Secretary for perusal by anyone interested in doing so
National Criminal Law Association
Members of the Bar might recall that in October of last year, a successful International Criminal Law Congress was held in Adelaide and gave rise to the establishment of a National Criminal Law Association. Difficulties have been encountered now in relation to that Association in view of the
withdrawal of various Bar Associations from the Australian Law Council of which it was intended that the National Ciminal Law Association would be a constituent part. [t is not clear what the status of the NCLA will be and members will be kept informed.
The NCLA proposes holding a Criminal Law Congress in Queensland in 1988. [n the more immediate future, an International Criminal Law Conference is also to be held in London between the 22nd and 25th of July, 1987, on the theme of "Reform of the Criminal Law" A number of members of this Bar and of the committee of this Association will be attending and presenting papers at the Conference
Professional Education Seminars
During the year, the Association has run several Professional Education Seminars , the most recent of which was conducted on the 23rd of September, 1986, on the topic "The No Case Submission". Those seminars have been organised by David Ross who has prepared the material and arranged the speakers and the Association is extremely grateful for his assistance.
LEX LASRY
The Law Council of Australia Report
Annual Meeting
As this report was being prepared , preparations for the Annual General Meetillg of the Council in Canberra on 25 October were underway. The next report will contain information about decisions made at the AGM. Immediately before the AGM, the Policy Advisory Group (set up following adoption of a protocol which provides the basis of the Council's operations for three years) was due to meet to formulate the advice it would give to the Council later in the day. The evening before the AGM the Attorney-General, the Hon. lionel Bowen, was scheduled to attend the Law Council's annual dinner as guest of honour.
Criminal Law Section
Following an AGM resolution to establish the new Section and approval of its by-laws, promotion of membership will begin, with the launch of the Section by Sir Harry Gibbs planned for February at the High Court in Canberra.
Search warrants and legal professional privilege
After lengthy negotiations, the Executive endorsed the guidelines on execution of search warrants in lawyers' offices drawn up between the Law Council and the Australian Federal Police. Tony Smith and Michael Somes represented the Law Council in the negotiations, which were held through the good offices of the Director of Public Prosecutions. After formal signing of the guidelines on behalf of the Law Council and the police, the guidelines will be widely .published as a service to the profession.
1981 Legal Convention
The first major publicity was in the form of a brochure distributed with the October issue of Law News. The WA Law SOCiety Planning Committee reports excellent progress with arrangements Practitioners are urged to start making plans now to be in Perth in September (20-25) 1987.
Section activities
The Executive has been considering the need for coordination in the planning of Section activities and Australian Legal Conventions. The Executive has decided that the Convention should be held every second year (in the odd-numbered years) and that in the even-numbered years the Sections should be
1986
encouraged to hold conferences and seminars. Sections, of course, would continue to be involved in Australian Legal Convention activities. In 1988, a special Convention will be held in Canberra to mark Australia's Bicentennary.
Legal costs reviews
We remain concerned about the delays in implementation of recommendations of the Federal Costs Advisory Committee This has again been taken up with the appropriate authorities , and will be raised again with the Attorney-General 's Department at the next round of discussions in November. Submissions for the third round of reviews of scales by the FCAC were lodged early in October.
Submissions update
In recent submissions to the Federal Government or other authorities the Law Council has said that -
a major factor in the overwhelming number of amendments to the companies and securities legislation , and in the nature and quality of decision-making by the national Companies and Securities Commission , is the lack of accountability and responsibility of the officers concerned to anyone minister or parliament.
the legal profession, through the President of the Law Council and leaders of the profession in the States, should be consulted before appointments of judges are made to the High Court, and the President of the Law Council should be consulted on Federal Court appointments .
Schedule 2 of the Family Law Rules is generally a satisfactory instrument for the calculation of costs, but there is no justification for a separate scale for work done before Registrars, and comments in detail on a number of the rules.
solicitors and accountants in public practice should be exempt from licensing requirements in relation to dealing in securities where they give advice on or deal in securities solely incidentally to the practice of their profession.
Constitutional Review
The Constitutional Commission's Advisory Committee on the Australian Judicial System scheduled a hearing at the Law Council's offices on 27 October to receive further views on the structure of the judicial system. For the Law Council, Vice President Daryl Williams QC (Chairman, Courts (Federal) Committee) and J D Merrals QC
(Chairman, Constitutional Law Committee) were listed to make submissions. The Advisory Committee is chaired by His Honour Mr. Justice David Jackson of the Federal Court. The judge formerly was chairman of the Law Council's Constitutional Law Committee. Others, apart from the Law Council representatives, will appear before the committee on 27 October.
Child maintenance
A submission on this important matter will be made the Government shortly The Family Law Section
ESSOi£;N CLUB
The effects of that extra refresher.
has been involved in consultations leading up to the recent release of the Government's Discussion Paper on the subject , and planned to look at the paper in detail during its Executive meeting in Queensland at the end of October. The principal author of the paper, Dr Meredith Edwards , also was due to take part in the discussion. Meanwhile, Law Council President Michael Gill, advised by the Family Law Section, issued a media release raising a number of questions about the Government's proposals for a new organisation to handle maintenance and related matters One of the questions was whether it would not be better to use the existing court structure at the maintenance assessment stage, with the Tax Office looking after collection and enforcement , instead of establishing a new body.
Personal Injuries Bar Association Report
By direct measures and indirectly, the Personal Injuries Bar Association has been engaged in the formulation and expression of opposition to, and constructive criticism of the proposed legislation, the effect of which would be to abrogate the "common law" rights of motor accident victims, and otherwise to restrict their entitlement to compensation. The Association has continued to observe the manner in which the Supreme Court and County Court lists involving personal injuries damages suits operate. This is done with the aim of ensuring that these lists operate as effectively as possible, in the interests of litigants, witnesses and practitioners, and to that end, the Association makes representations, from time to time, to the appropriate authorities, on aspects relating to the listing of cases, of which it has become aware .
TOM WODAK
Milestones
25 years since John Winneke Q.c. played in the Hawthorn Premiership Team.
30 Years since Judge Howden won an Olympic Silver medal as part of Australia's eight.
Teaching Advocacy
Mr. Justice Hampel was a founder of what is popularly known as the Baby Barristers' Course. He argues strongly against the ''lump in at the deep end" theory of acquiring advocacy skills.
At last the myth that advocacy cannot successfully be taught has been exploded. In the legal context advocacy is the art of persuasion in Court. It involves great skill and a lot of technique applied with whatever degree of natural ability and talent are available to the individual.
There are still a few die-hards. They maintain that one either has it or not, that it all comes with experience and in any event everyone does it differently.
What is amazing is that these attitudes have for years enabled the situation to exist in which people, who had obtained a law degree and had completed their articles, could and did undertake the conduct of most serious cases in court without having even the slightest knowledge of what is involved and with no advocacy skills whatever.
Some years ago a young reader asked me for some help with a rape trial which a friendly solicitor had offered him. It soon became apparent that he had never been inside a criminal court before. When I advised him as best I could and suggested that during the next few weeks before the trial he should sit in on a few trials he complimented me on what he called a "great idea" Fortunately for the accused, but I think unfortunately for my young friend, his client was acquitted. Perhaps he or his master should have known better and he should not have accepted that brief. The problem is not what some individuals will or will not do but what the system allows. After all, to his client and to the world at large he was held out as a barrister and therefore one who is expected to have at least reasonable skills as an advocate.
"It will all come with experience," say the die-hards To many it will but at what cost to their clients in the meantime, and at what cost to the reputation of the profession? [n many other cases experience will simply help to perpetuate bad practices and poor advocacy. Experience is a great teacher but only when combined with a facility for learning from it and an open minded willingness to learn.
That experience is often not enough is evident from the fact that barristers of many years' standing still break the most fundamental rules of good advocacy. Others perform their task in a most pedestrian way which [ am sure some careful self analysis and learning could change.
One still hears so many opening addresses, for example both in civil and criminal jury trials which are disorganised, repetitive and obViously not thought through. An opening address is such a powerful tool in the hands of a good advocate and yet so many do not take the advantage of this first impact on the jury. Often one hears a mere summary of the evidence preceded by some very negative and unnecessary preliminary comments .
This is frequently followed by a presentation of the evidence in chief which is simply an elaboration of the opening. The scene is not set, there is no story line and no life. It is not persuasive because it is merely an attempt to transfer information from written statements into the transcript. The jury is bored because it has heard it all in the opening and the style of "Mr. A. will tell you this" and "Mrs B. will tell you that."
Incidents of disastrous cross-examinations by the "experienced" advocate are too numerous to recount here. During the last three years [ have seen barristers of many years' standing cross-examine their clients into a case to answer where there was none before, and into an identification more positive and soundly based than it was before they asked the first question. Almost every accepted cannon of sound advocacy is repeatedly and unnecessarily contravened, sometimes with disastrous results. Repetition and not knowing when to stop are the main problems. Translated into the terms of any other profession these errors would be unacceptable . It is painfully obvious that in many cases mere experience has failed as a teacher of good advocacy
Obviously natural ability and talent cannot be taught - but they can be developed. Skills and technique can be taught and improved. The last ten years have demonstrated that it is possible to teach a person the
basic skills required in conducting a case in court. This can be done by workshop performances where learning by experience is combined with analysis so as to enable the student to perform and understand. The level of improvement even in a matter of a few weeks is obvious. No-one who has taken part in these workshops now doubts that at least basic skills can be taught.
My own interest in advocacy teaching goes back to the days in the early seventies when senior barristers gave lectures about advocacy. The lectures were interesting and usually entertaining. I did a few both for barristers and for the Leo Cussen practice course. [ then began to realise that they had little value as a teaching tool. [t was time to try something else. [ became interested in analysing what it is that is involved in good advocacy What are the skills and techniques involved? How much is natural and instinctive? When we see a great performance by an actor we feel satisfied because the character portrayed is real and the performance polished. Everything seems right. Yet without knowledge of what acting is all about, one would not be able to analyse the special skills employed. We would not know what years of training have produced in addition to the natural ability and talent. [ am sure that countless hours are devoted to voice projection, to stance, to movement, all of which give the performer presence and confidence. An advocate is more than an actor. He writes his own script and produces the effects. Language, timing and much more are part of the advocate's art.
It is true that there is no one way of being a good advocate and that there are no absolute rules. There are, however, many common features about good experienced advocates which can be identified and used in teaching. They can be adapted to individual styles and personalities and not simply copied. There is a constant emphasis in advocacy teaching of self development and use by individuals of their particular attributes and abilities.
[n the seventies both in Australia and in the United States comments were being made in the appellate courts about the poor standards of advocacy. The Americans reacted by establishing a National Institute of Trial Advocacy (N[TA) which has now developed into a large body which uses the talents of the country's top advocates and judges to teach advocacy at the beginner and advanced levels. There are a number of workshop courses held each year, some of up to two weeks' duration. A tremendous amount of research and analysis has gone into learning how to teach and the results are amazing.
At the end of some of the courses short trials are held using real juries. The juries' deliberations are observed on video and jurors are de-briefed. In that way it is possible to learn what is effective and persuasive by controlled experiments in approach, style and technique. A lot of research is also being done on the effect of language, the power of suggestion and the psychological phenomena in areas such as memory, observation and identification For example, a controlled group of 200 people were shown a short film of a simple motor car collision Half were asked "how far" was vehicle A from the stop sign when vehicle B appeared. The other half were asked the same question, but the words were "how close". The difference in estimate was an amazing 28%. Later the first half were asked "where was the glass on the road after the 'smash' ", the other half after the "incident". Although there was in fact no glass on the road in the film, a significantly higher percentage of the first grout) claimed they saw glass. Understanding of this type of phenomena is seen as an important part of advocacy training.
The first Readers' Course came about as a result of concern about standards of advocacy. In June of 1979 the reading period was increased from six to nine months and the first three months became a non-brief period during which a practical training course must be undertaken. The course is controlled by a committee which determines the content of the course, sets the timetable and is responsible for the general organization and administration.
Female Victorian Barris ter : '" put It to you that you were negligent In that : (a) rou failed to keep any Or any proper lookout, (b you drove at an excessive speed in the (c) you failed to comply with the Motor Car Act and the Regulations made thereunder." Northern TerrItory Legal Aid Solicitor: '" deny negligence and in the alternative allege contributory negligence particulars whereof are as follows : (a) White woman driver!'
In Australia the reaction has taken a lot longer to develop. Most of it started in Victoria with workshops at Leo Cussen and more recently with the advent of the Readers' Course. These two developments have placed Victoria at the forefront of advocacy training in Australia. We are now conducting regular courses interstate and some interstate practitioners are attending the Victorian workshops. Some have asked if they can enrol for the Readers' Course.
Since its inception 471 readers have undertaken the Course . Most of the teaching is done by members of the Bar who volunteer their time, talent and experience during the six months of the year when the two courses are held. Over 100 barristers and judges give their time to help to improve the basic standards of those who are held out to the public as professional advocates. The main emphasis of the Course now is on advocacy training. This involves everything from openings to examination in chief, cross-examination and addresses. There is training in Practice court work, appellate advocacy and work before tribunals The readers do pleading exercises and take part in trials conducted in foreign languages in order to appreciate problems experienced by some of their clients and the effective use of interpreters. In addition, there are lectures designed to introduce the readers to various aspects of the system within which they are likely to work. They hear from the Clerks, from Solicitors and from experienced police officers. The Attorney-General, the Director of Public Prosecutions, the Solicitor-General, a member of the Legal Aid Commission, the Chief Justice and a number of Judges all contribute.
With the help of the Law Foundation, the Bar and the Leo Cussen Institute, I was able to attend one of the NITA workshops in the United States. I joined the teaching team at a two-week workshop and in the follOWing year taught at the advanced course for advocates of at least seven years' experience. Apart from being totally convinced that advocacy can be taught, I realised the effective use made of the video which enabled students to see their performances and to receive individual help with their work. This led to the introduction into the Readers' Course of video-exercises which are held twice a week throughout the course. Again a number of Judges and senior barristers have participated. It is now accepted generally that these exercises, together with the other work during the course are of great assistance to young barristers. Their improvement over the three month period is spectacular and there is much renewed interest and enthusiasm about the art of advocacy.
The conduct of the course has been a constant learning experience. In a few years we have come a long way but we still have a long way to go. The Bar is now about 1000 strong and although the master-reader relationship is still very much a part of the system, the young barrister does not have the same opportunity of mixing with seniors as was available when the bar was small and the pace of life more leisurely .
There is much re-thinking going on about postgraduate legal education. The system of articles is on the way out and a practical training course will be substituted. Whether different or additional training will be instituted for those who want to practise as advocates at the bar or otherwise is not clear. In my view no-one should be allowed to practise as an advocate until they have completed a trial practice course and have demonstrated that they have the basic skill and understanding to be able to represent a client's interests in Court . After all, we spend four or five years at law schools before we can be admitted to practise. Why not spend six or even twelve months learning the very skills which we hold ourselves out as possessing. I appreciate that every one has to start somewhere but think of settling back in your seat on an airplane and being told, after takeoff, not only that this is your pilot's first flight but that he has never passed a simulator test.
There is also much to be done at the more advanced level. Experienced good advocates can do so much to help each other to become even better, particularly if those fragile egos can be put to one side. It is hoped that courses for those interested in teaching can be developed in the near future.
A strong independent Bar depends on the excellence of its members as advocates. The recent developments in advocacy teaching exemplified by the Readers' Course are an important move in the right direction.
An Academic Masquerade
Sher in the US.A.! Jeffrey Sber Q.C. takes us way down younder to Washington and Lee University.
In April 1985, well into my 25th year as a barrister, and in what I have since been assured was a forlorn attempt to preserve my sanity, I took a sabbatical year away from the delights of the Bar. Whilst "the sabbatical" is an academic ploy of questionable financial merit for a self-employed barrister, it seemed "a good idea at the time". With the aid of Bob Baxt (the erstwhile Dean of the Monash Law School) and the help of a visiting American law professor (Willard "Ped" Pedrick) I obtained the position of "Lawyerin-Residence" at Washington and Lee University Law School for the fall semester 1985 . As a consequence my wife Diana and I spent from mid-August to midDecember last year in Lexington, Virginia, U.S.A., a town of about 7,500 souls where I masqueraded as an academic. I have my doubts as to whether the Washington and Lee Law School derived any benefit from the exercise but I'm convinced it did a great deal of good for me.
Washington and Lee University shares a beautiful wooded campus with the Virginia Military Institute within a small township situated in the Shenandoah Valley about 3lj2 hours driving time on route 66 south west of Washington o.c.
Wand L (as it is affectionately known by the locals) was founded in 1749 and is the sixth oldest u!1iversity in the U.S .A. Whilst founded by others, it owes its survival to a large bequest from George Washington who must have been richer than most people suppose. His benevolence enabled what was then a struggling college to develop into a university of some quality. It boasts of the fact that one of its Presidents was the famous Southern General Robert E. Lee: hence its name Naturally enough the local gridiron team is known as "The Generals".
Wand L is a very small private university with less than 2,000 students and only one graduate faculty, the School of Law which has about 350 students and a teaching faculty of about 25. Whilst small by any standard (certainly American) it is both relatively wealthy and prestigious - somewhat lower on the
totem pole than Harvard and Yale but, nonetheless, well regarded. Its graduates are in demand, and during my stay, and for some weeks, the student body were being interviewed on campus by prospective employers. For those who suspect "the great American dream" is a fiction let me assure you that it is not. First year lawyers in the leading New York and Washington law firms can expect to start on US$50 ,000 per annum plus fringe benefits, which in the U.S . are not taxed.
The Law School itself was quite a surprise . About nine years ago a wealthy alumnus, on being asked for a donation towards the cost of improving the existing facilities then housed in the old part of the university, asked the Dean how much he needed for a new Law School. He then provided the US$9
Washington & Lee University
million quoted The research section of the school was named after his wife Frances Lewis The Law School is now housed in a modern building with every conceivable facility. A well-appointed law library with a quarter of a million books, including a modest Australian section, (they even had books on Chinese law), five major lecture halls equipped with movie and video projectors and other aids, a model Court room, tutorial rooms, student research carrels and all the facilities which a modern American Law School thinks necessary. The research aids included free access to both Lexis and Westlaw computerised legal retrieval services . The faculty staff were a blend of both older and youthful professors who were supplied with a word processing centre, research assistants and such teaching aids as they needed
An obvious difference from an Australian law school was the age of the students - the average was probably in the middle twenties The course took three years, each of which was divided into two semesters of about 13 weeks duration . Instruction was intense and the competition keen. At
US$50,000 for first year jobs - who can blame them? Students came from many States (over 20) with the largest group, naturally enough, from Virginia. The students were provided with outlets for their energies in the form of Moot Court competitions, both regional and National, in which Washington and Lee Law School usually did very well.
The role of "Lawyer-in-Residence" is a mixed one I was provided with an office, the use of a secretary, a dictaphone and the run of the place I was told to do whatever research project I wished . My only obligation was to research this project and hang around like an 'eminence gris', give a faculty colloquium on my research project and answer people's questions; foolish or otherwise. I was an experiment , the first Australian they had had The three lawyers-in-residence before had all been on the edge of retirement. I think I was the first actively practising trial lawyer some of the students had actually seen at close range. Members of the faculty thought I was a little mad because of the hours I kept. I used to attend from about 9 until 5 Old habits die hard. Frankly, I couldn't keep away from the place. I lunched daily in the faculty common room with staff members swapping war-stories. Many of the teaching staff were ex-practising lawyers. Space does not permit the recounting of some of their more interesting experiences, but ask me sometime about American practices in relation to "plea-bargaining"
I knew I'd go crazy if I didn't have more to do, so I persuaded the Dean to let me do some teaching. He was too smart to jeopardise the whole class ' future so he allotted me to a visiting Judge to assist teaching final-year students advocacy. It was remarkable how similar are the tasks of an advocate notwithstanding major procedural differences which exist between Australian and the U.S Courts. The Judge, Bill Sweeney, had devised a series of mock trials with factual situations scripted for students to act out as either the plaintiff and defendant or as witnesses . This they did with incredible energy, often dressing for the part. Each side was represented by two counsel who shared the work of examining and cross-examining witnesses , making opening statements and final addresses Juries were enlisted from any hapless student who happened to pass by at the wrong time. Some of the local townspeople ended up on the juries. My wife Diana ended up on one which explains why they brought in a perverse verdict. Once a week the Judge and I conducted two trials. He kept explaining (and apologising for) my presence. I was the Australian expert! I think they eventually got used to me and my strange accent. The cases were fought with extraordinary vigour and often with considerable skill. The Judge gave all the SUMMER 1986
practice rulings and directions etc. whilst my task was to give a critique of the students' performances. I have no doubt I wrecked the careers of a number of budding trial lawyers. Countless times these trainee advocates would tell the witness, the Judge and the jury what they thought, believed, wished, etc . In the privacy of my office I would rebuke each student for making the submissions too personal and emphasise the need for objectivity I realised how useful this advice was on one of my visits to Washington when I sat in on a number of Supreme Court Cases. Leading Counsel addressed the U.S. Supreme Court in the same manner as had the students. Personal advocacy is apparently the appropriate technique on their side of the Pacific. Bill Sweeney was about my age and a man of considerable ability and kindness. He'd been appOinted to the Bench in his middle thirties after about 12 years of practice. His jurisdiction ranged over a wide field encompassing matters which we allot to Magistrates and including matters which are heard in Victoria in the Supreme Court . Towards the end of our stay Bill invited Diana and I to witness a murder trial he was trying in which the prosecution was seeking the death penalty. We travelled down to Bedford County Court House and watched the jury being selected. It was as bad as you have heard Potential jurors were questioned at length and in th e absence of other potential jurors by defence and prosecuting counsel about a wide vari e ty of matters includ ing whether they were personally associated with the accused , the police, any witnesses or even counsel. One elderly lady was questioned shortly and with apparent detachment by the district attorney but was not asked any personal questions. Defence counsel then rose to his feet and speedily established that this potential juror was known to the prosecutor as "Aunty Joan ". He'd spent all his childhood years as a playmate of her son They lived next door to each other. I don ' t think she made the team. Washington and Lee is a Liberal Arts University which draws its students from over twenty States . It employed staff to travel to schools in many States recruiting students The fees (without residential college expenses) were about US$7,000 per annum. It possessed a number of residential colleges, two gymnasiums, a swimming pool, 14 tennis courts and offered a wide variety of courses and facilities. Diana and I joined a group of 18 year old undergraduates in a French class for one hour each morning. Apart from tuition we were prOVided with computer exercises and an audio laboratory I now speak broken French with a combined Aussie-American accent which is intelligible to very few; certainly not the French Lexington is in the bible belt. We were about an
hour's drive from Lynchburg, (they didn't lynch people there - Mr. Lynch founded the town), where the famous Jerry Farwell of the "Moral Majority " has his fiefdom. We visited Lynchburg (Bill Sweeney lived there) Jerry Farwell's establishment was surrounded by a solid fence patrolled by armed guards. We learnt during our stay that the Farwell organisation had nearly been bankrupted by the son of a devout follower. The son objected to the large amounts of money his mother gave to the organisation This son was something of a computer whizz and programmed a computer to dial the Jerry Farwell toll-free number continuously 24 hours a day. Every time the number answered the computer hung up and redialed . He ran up a bill of about $8 million . The last we heard was that Jerry Farwell's dial-aprayer operation had gone off the air.
The natives were deCidedly friendly and very interested in Australia and Australians. I could buy Fosters at three different outlets I believe that most Americans have a genuine affection for this country and its people They are all going to visit - so they say - but they know very little about us
A word about the Virginia Military Institute. It had about 1 ,500 trainee officer cadets. All male! Some of its students fought in the Civil War. The less successful are buried on campus. West Point isn't the only place that turns out officers for the military. Apart from West Point and V.M.I. (whose mascot is a kangaroo) there is a further establishment in the Carolinas known as "The Citadel".
In 1985 Washington and Lee was celebrating the fact that female undergraduates were being permitted for the first time. The Law School has been coeducational for years but our arrival coincid e d with the first undergraduate enrolments of the gentler sex. Between Wand Land V.M .I. Lexington had more than its proportionate share of randy young men. Young ladies from nearby towns flocked in at weekends from adjoining female-only Colleges. There were at least two in the vicinity -I don 't think the establishment of these institutions in such places was entirely coincidental. I gather everyone was having a wonderful time
Lexington is about an hour's drive from Charlottesville, home of the fourth President (Thomas Jefferson) and Virginia UniverSity which has about 40,000 students It boasts a very large Law School, the late Robert Kennedy being its most famous alumnus. We visited a number of times, on one occasion to hear Mason J. of our High Court deliver the inaugural address of an exchange program between A.N.U. at Canberra and the Virginia Law School.
A word about black Americans Affirmative action,
now under legal challenge, is Government policy and appeared to be working in those places where we stayed long enough to form an impression. All universities have a black student quota. There was a large body of black students at Virginia University but less than the faculty would have preferred at Washington and Lee. Two members of the faculty staff were black. As far as I can tell racial barriers are well on their way to destruction, certainly in the better educated areas of U.S. Even in the south there seemed to me to be reason for optimism. I addressed Black Student societies about Australian aborigines and land rights and other meetings both at Washington and Lee and adjoining Universities. I pretended to be an expert. Interest in these matters was sincere.
Finally a word about Ped's old stamping ground, Arizona State University Law School, which he founded. Diana and I visited Arizona in March this year. Arizona University is a vibrant and exciting place with a lot to commend it. Situated near Phoenix, one of the fastest growing cities in the U.S., it had a modern and delightful campus. Like so many other American Universities it caters for students from many States. When we were visiting Ped invited me to two events. The first was a speech given by President Reagan's appointee head of the Equal Opportunity Commission. He is black, but conservative. It was amazing to watch the black students tearing him apart for his perceived "Tom Crowism" and conservatism. As the night wore on and numbers dwindled Ped and I ended up being about the only white people left in the room. He thought we were his allies. He turned to me for succour asking where I was from and what I did. I told him and that I represented Australian blacks in land rights claims. He seemed more than a little depressed and left soon afterwards. The following night the Arizona State Law School student musical took place. It would have done tribute to Broadway. Even members of the staff joined in with their own segment. Ped crooned a tune. He conned me into walking on stage and making the following announcement:
"Pardon my interruption. As I've traveJIed further than anyone else to witness this cultural extravaganza, I'm sure you'JI pardon me. I'm a lawyer from Melbourne, Australia, where I met Professor Pedrick. Australia is a somewhat undeveloped country, save for yachting (howls of derision foJIowed) and tonight's particular art form is unknown in my country. However I'll be delighted to report tonight's observations to the Monash Law School in Melbourne with a view to an appropriate exchange of talent."
Of course I lied.
Communications with Witnesses Before and During their Evidence
An edited version of a paper given by Mr. Justice I.F. Sheppard of the Federal Court of Australia to the Second Biennial Conference of the Australian Bar Association on 7th July 1986.
I propose to divide what I have to say into three main compartments. These are:-
(a) Seeing witnesses before their evidence;
(b) Seeing witnesses during their evidence; (c) Criminal cases and their special problems.
(a) Seeing Witnesses Before Their Evidence
A starting point is the statement of the English rule which is that, subject to certain exceptions, it is a recognized practice that witnesses should not be present at consultations or conferences with counsel and that counsel should not interview such witnesses before or during a trial. The principal exceptions are the interviewing of clients, which, I understand, has become usual practice, and the conferring with expert witnesses in cases involving complex technical issues. The statement of the present position is to be found in A Guide to Conduct and Etiquette at the Bar (1975) by Sir William Boulton (6th ed) pp.14-15, the Supplement thereto (1978), which exphasizes that the rules relating to the interviewing of witnesses are no less strict in the case of prosecuting counsel than in the case of defence counsel, and Halsbury 4th ed, Vol. 3, para. 1186. In the latter reference the matter is put thus, "It is the recognised practice of the profession that witnesses, other than the parties and expert or professional witnesses, should not be present at consultations or conferences with counsel".
The English practice has not, so far as I have been able to ascertain, been followed at any time in Australia nor, for that matter, in many of the existing or former Commonwealth countries.
Certainly it is the practice of barristers in every State and Territory of the Commonwealth to intervew witnesses in cases in which they appear, or at least, to feel under no restriction about interviewing them
Whatever the reason , it is the Australian practice for counsel to interview witnesses prior to the commencement of a hearing and, not infrequently, prior to the commencement of litigation because counsel's advice is sought on whether litigation should be commenced or not. It is in those circumstances that rules of conduct have been formulated by some of the Bar associations to guide counsel in their dealings with witnesses. Rule 32 of the N.S.W. Rules is as follows :-
"G
CONFERENCES
32 A barrister may interview witnesses in a case in which he is briefed provided that:
1. Except in the case of expert witnesses or other special circumstances, he shall not permit two or more persons, including a party, who are to be called as witnesses on a contentious issue to be present in conference with him about that issue at the same time; and
2. Under no circumstances shall a barrister advise a witness or suggest to him that he should give false evidence.
3. Under no circumstances shall a barrister advise a witness what answer he should give to questions he might be asked".
In Victoria there is published a work, The Victorian Bar - Professional Conduct, Practice and Etiquette (1979) by Sir Gregory Gowans, Q.c. In Chapter 12 which is entitled "Conduct of Counsel", the following appears under the heading "Interviewing Witnesses " (p.73) :-
"It is the recognised practice in England that counsel should not interview witnesses in conferences or before or during a trial. But this practice is not followed in Victoria. It is improper however for counsel to make any suggestion to a witness that the evidence he is to give should be other than the truth . The answer from a feeler as to what he should say in evidence is the time·honoured reply - 'I cannot tell you anything but to te ll the truth as you know il'."
In Queensland the Bar Council made an ethical ruling on 25 June 1979. It is headed, "Conferring with Witnesses" and is in part as follows:"1. Coaching of witness must not occur, and circumstances likely to give rise to unintentional coaching should be avoided. Counsel should not place himself in a position where he may be accused, justly or unjustly, of being a party to coaching. One witness ought not to have the opportunity of adopting the account of another as his own evidence"
The ruling also dealt with the number of witnesses to be seen by counsel at the one time. In this respect it is similar to the N SW rule. I refer also to Harrison's Law and Conduct of the Legal Profession in Queensland, 2nd edition (1984), by Mr. Justice G.N. Williams of the Supreme Court of Queensland, p 36.
I have been informed that the Bars in the Northern Territory and the Australian Capital Territory follow the New South Wales Bar Rules unless , in the case of the Northern Territory where elaborate Rules have been formulated , there is no specific rule covering the point in question. The Northern Territory Rules do not cover the point so that, effectively, the New South Wales rule applies in both Territories. I would expect the position in South Australia, Tasmania and Western Australia to be the same as it is in the other States and Territories.
If I may take the New South Wales rule for a moment, I do not wish to say very much about sub-rule 1. At first sight I thought it could operate to permit two witnesses to be present at the same time. But, on reflection it is clear that it permits only one. This is in accordance with my own understanding, when I was in practice myself, that no more than one witness should be seen at a time Sub-rule 2 does not appear to be more than a statement of the criminal law. Advice given in breach of the rule would in most cases amount to an attempt to pervert the course of justice. Subrule 3 may only be a particular application of subrule 2. It deals with the same matter as is stated by Sir Gregory Gowans Q.c. in his work. It is easy enough to say and simple enough to understand but not always easy to apply The difficulties which are raised by it provide the first matter of substance upon which I wish to say something. The problems it raises are not, of course, the concern of barristers alone; the same problems confront solicitors as well.
I say at once that we would all agree with the sentiment behind the rule, but, so it seems to me, there will be occasions when counsel will find it
difficult to abide by it strictly because of his other duties which include the duties of properly advising a client as to the law and properly preparing a client for the witness box. If he does not discharge these duties to his client, he may be instrumental in a deserving client being unsuccessful in litigation. In his extensive work, Advocacy - Its Principles and Practice (In India) (1960), his Honour, Assistant Judge RK. Soonavala, includes 100 hints on advocacy. Hint number 62 is in part, "See and drill witnesses to tell the truth in plain words " There is no difficulty in understanding what his Honour meant and understanding especially the need to comply with its exhortation to "drill witnesses to tell the truth in plain words". But a question arises as to what is encompassed within the word "drill". Some idea of what might be thought to be appropriate is to be found in a work, "Lawyers' Ethics in an Adversary System" by Professor Monroe H. Freedman, the then Professor of Law at the Hofstra University School of Law, New York. Extensive reference is made by Professor Freedman to three works, one of which is, The Art of Advocacy (1954) by L.P. Stryker. Of what Mr. Stryker there said Professor Freedman writes (p.63):-
"The process of preparing or coaching the witness, of course, goes far beyond the initial eliciting of facts. In the course of polishing the client's testimony, Mr. Stryker recommends as many as fifty full rehearsals of direct and cross-examination. During those rehearsals, the testimony is developed in a variety of ways. The witness is Vigorously cross-examined, and then the attorney points out where the witness has been 'tripped' and how the testimony can be restructured to avoid that result. The attorney may also take the role of witness and be cross-examined by an associate. The attorney's 'failures' in simulated testimony are then discussed, and the attorney then may conduct a mock cross-examination of the associate . In that way, 'new ideas are developed while all the time the client is looking on and listening. He probably is saying, 'Let me try again'. And you will then go through the whole process once more'. By that time, as one might expect, the client 'does far better'. In fact, after many weeks of preparation, 'perhaps on the very eve of trial', the client may come up with a new fact that 'may perhaps make a difference between victory and defeat' ".
Professor Freedman continues (pp.,63-64):"Nowhere in those three selections relating to preparation of witnesses is there any analysis of the ethical implications of the model practices that are set forth. Mr. Stryker does say that in repeatedly going over the 'hard spots' and the 'awkward places' and in shOWing the client how to 'surmount his
difficulties', the witness is 'still staying well within the truth, the whole truth, and nothing but the truth'. Saying that, however, does not make it so. If people do respond to suggestions, and if the lawyer helps the client to 'fill in the gaps' and to avoid being 'tripped', by developing 'new ideas' in the course of repeated rehearsals, it is reasonably clear that the testimony that ultimately is presented in court will have been Significantly affected by the lawyer's prompting and by the client's self-interest. Whether the end product is 'well within the truth, the whole truth and nothing but the truth', is therefore subject to considerable doubt".
The question is of obvious concern in the United States as the editorial in the National Law Journal for 7 January 1980 shows. It is entitled, 'Prepping' the Witness and is in part as follows:
"Every profession has its tricky questions. In medicine they often revolve around how much should be done to keep a terminally ill patient alive. In law one of the basic sticklers has always been how far a lawyer can go in shaping a witness's testimony.
The Legal Ethics Committee of the District of Columbia Bar recently issued an opinion on the lawyer's role in witness preparation. Not surprisingly, the committee declared that lawyers may properly suggest language as well as the substance of testimony, and that they may - and indeed, should - do whatever is feasible to prepare a witness for examination.
The prohibitions are simple enough: a lawyer may not help prepare false or misleading testimony, and according to the Federal Rules of Dvidence, a witness may not testify or imply that he has personal knowledge of a matter when he does not.
Essentially, all of this just affirms the real-world practices most lawyers follow. Lawyers do play an active part in shaping the wording and substance of affidavits and answers to interrogatories. And, if they are any good, they do give their clients testruns before putting them on the stand in court. What bothers us, however, is how little lawyers are told about the do's and don'ts of witness preparation. Wigmore on Evidence, in the third section, recognizes the need for a pretrial conference with a witness, but goes on to say, This right may be abused, and often is; but to prevent the abuse by any definite rule seems impracticable'.
Attorneys now playa huge role in shaping the official statements of their clients, whether it's before a Congressional committee, in court, or, as in the case the ethics committee considererd, in a regulatory agency's adjudicative hearing.
That role should be acknowledged and defined. Lawyers should be reminded that their job is not to put ideas in the witness's head, but rather to help articulate the witness's own ideas. There is a need for specific gUidelines.
Only the general professional consensus about where the lines should be drawn can help attorneys feel comfortable making the tough decisions".
The trouble is that so much depends upon the individual circumstances of a given case that it becomes difficult to lay down gUidelines. So much must be left to the integrity of the legal practitioners involved. The important thing is that the profession should keep reminding itself of the important responsibility it has in the overall administration of justice in not allowing the natural desire to help a client and win a case to lead to the overstepping of the mark. Professor Freedmary in the same article as that earlier referred to demonstrates how misunderstandings may occur by reference to an example (which is apparently hypothetical). He assumes that jurisdictions X and Yare adjacent to each other and that many lawyers practice in both. In jurisdiction X there are a large number of workmen's compensation cases in which workers strain themselves while lifting and recover compensation. In jurisdiction Y there is an equivalent number of such cases, but in all of them the workers who strain themselves while lifting also slip or trip on something in the process. That coincidence is fortunate, because in jurisdiction X it is sufficient for compensation simply that the strain be workrelated, while in jurisdiction Y the applicable law required that the injury be received in the course of an accident, such as a slip or a trip . Obviously, the same lawyers whose clients are not slipping or tripping in jurisdiction X are prompting their clients to recall a slip or trip when the injury is received in jurisdiction Y. Amongst other things Professor Freedman says op. cit. (p. 74):-
"In those cases (i.e where a slip or trip is required), there are no issues of intent or of judgment, but only of objective fact. nevertheless, even if the client's initial narrative of the incident should omit any reference to slipping or tripping, I believe that the lawyer's obligation is to explain to the client in Jurisdiction Y that one of the legal requirements for recovery is an accident, such as a trip or slip. As we have seen in the earlier discussions of experiments by behavioral psychologists, a factual detail of that sort might very well be omitted in a narrative of the incident. Moreover, the narrator's understanding (whether accurate or inaccurate) of his or her own self-interest will affect the remembering-reconstruction of the incident entirely apart from any conscious dishonesty. Thus, the client who incorrectly assumes that tripping or slipping might preclude recovery (perhaps because it might imply carelessness) might unconSCiously screen out that fact. Despite the risk , therefore, that a dishonest client might consciously invent a trip or slip to meet the needs of the occasion, the attorney
is obligated to prod the client's rememberingreconstruction by explaining the relevance and importance of that factual element".
The whole of Professor Freedman's treatment of this subject is instructive and I commend it to practitioners to read.
Extensive lectures are given to new members of the New South Wales Bar during the period of their reading These deal explicitly with how to go about eliciting eVidence, but do not say a great deal about any ethical problem. As an example, I refer to the following statements (paras. (h) and (i), P.4 of Lecture on Leading Evidence):-
"(h) Clients who tend to be aggressive, dominating or slick and sharp or exhibit other unattractive qualities should be disciplined. Simplicity, frankness, restraint and clarity are appealing. The 'muddle headed' or 'confused' client needs, by dint of hard work in chambers, to emerge with a clear and straightforward account of events.
(i) A client often appears to be unable to recall events which have obViously happened. To obtain comprehensive accounts of what took place and what was said it is often necessary by drawing upon one's imagination to prod and stimulate a client so that he ultimately is able to give a full and convincing account. Frequently by directing the client's attention to individual parts of the evidence and conversations and reasoning the matter through with the client, he will recall matters which at first sight he appeared to have forgotten".
In passing I sould say that one of the things said in these lectures has disturbed me. It is said:"Ideally, your solicitor should have briefed you a proof of evidence of a witness whom it is contemplated will be called . Such a proof is a bonus but is often never found in practice and you have to sit down with a witness in conference and extract his evidence in an often painstaking laborious manner".
assume that the words "often never" mean "seldom ever".
I am surprised to learn that proofs of witnesses have fallen into disuse, at least in N.SW. It is difficult for a judge sitting listening to cases to realize that this has come about. If the position is, as the author of the lecture has suggested, then
it seems to me that the distinction between the two branches of the profession has, at least in one important area, become blurred in the extreme. On the other hand, I do remember, in relation to my own days of practice, that, although proofs were usually prepared, very often they proved inadequate. This was not always the solicitor's fault. Sometimes the proof which had been taken was made inadequate by information which came to hand late, perhaps as a result of the finding out of the way in which the case was to be put by one's opponent.
When I read the lecture which suggests that proofs are no longer taken except in exceptional circumstances, I began to wonder what had happened to the advice on evidence. I would be interested to know whether that has fallen into disuse as well. A good advice on evidence required the taking of proofs and the directing of witnesses' minds to particular matters with which it was necessary for them to deal.
To return to the thrust of the paper, I think the problem arises acutely when one is asked to advise in conference. Desirably a proof should be briefed and one should assume that the proof contains the evidence which is available on the question which will than be what remedy (or defence) the client has on those facts. This may require counsel to discuss the law with the solicitor in the presence of the client. Very often fine distinctions can dictate the outcome of the advice. If the facts are X, there will be a remedy; if they are Y, there will not. This can be perceived (although mistakenly) as an invitation to the client to change his recollection. The problem may arise in cases involving questions of whether an oral promise or warranty was made, whether what was said amounted to a condition or a representation and whether such reliance was placed on words which were said as to make them the inducement for a contract or for particular conduct. It is often only when the significance of these matters is discussed with a client that his evidence will take shape. As Professor Freedman says, it may be that the then recollection of what was said will be quite honest. The very discussion may have prompted an honest recollection. If it had not taken place, the point may never have come out and it may never have been perceived that a just remedy was available. It is considerations of that kind that lead me to say, as I have, that a very great deal must depend on the integrity, honesty and probity of members of the profession dealing with problems of this kind.
I do not wish to say any more about this topic except this. In a complex case there is nothing worse, from a judge's point of view, than to have a witness come into the witness box who has not been properly prepared to give evidence. By that I mean that it is no assistance to the court to hear from a witness who comes "cold" to the task of telling the court about his case. In many cases there will have been lengthy correspondence extending over a long period; as well there may have been internal memoranda, diary entries and telexes; and there may be complex contractual documents which the witness must have considered at the time they came into existence. The witness's understanding of all these documents and their consistency, or otherwise, with his oral evidence will be matters which counsel will need to discuss fully with him. A witness who is not familiar with the documents and the problems they they may create for him may do himself grave injustice notwithstanding that he may be a most honest and reliable person. He needs to be taken through the documents and the problems in them for his case pointed out to him. The difficulty for counsel (and solicitor) comes when he, not unnaturally, turns to them and says, "What will I say?" It is then that the legal advisers are on their mettle. And it is then that Sir Gregory Gowans' time-honoured phrase, "I cannot tell you anything but to tell the truth as you know it", ought to come to their minds. Whether it always does is a matter that 1 leave for your consideration. But their duty is clear. I can do no better than to conclude this part of the paper with what is said in Harrison, op. cit, p.36, namely:-
"The most reprehensible type of conduct is the fabrication of evidence, including the coaching of a client or his witnesses to give false evidence in court. The criminality of this is obvious. But a practitioner should do more than merely refrain from procuring perjury. He should take care not to show the client the way towards helpful perjury. If for example while taking a statement he explains the importance of the difference between a guarantee and an indemnity, or the law as to provocation in relation to assaults, a dishonest client may be shrewd enough to take the hint. Deliberately to give a hint in this way is clearly a breach of duty to the Court, and, if it could be proved, would be severely punished. But, whatever his legal liability may be, a practitioner should go further, and as a moral duty take care not to give his client a chance to modify his statement to suit the relevant law. It is not always easy to extract from a layman all the information that is relevant to a case, and an explanation of what may be important may help him to bring to mind relevant facts. But the temptation to take this easy
way should be resisted, at any rate so long as there is any possibility that the party being interviewed may adapt his statement to the needs of the case. And it is almost equally dangerous, after a statement has been taken, to indicate in just what ways it may make the winning of the case more difficult".
Editors note: This view is not all that easy to reconcile with the passage from p.74 of Professor Freedman's work referred to soon.
(b) Seeing Witnesses During Their Evidence
(i) Cross-examination
There appears to be, with one exception, a universal practice in Australia that counsel does not speak to his own witness during cross-examination, at least without the leave of the Court or his opponent, or, query, without informing the court or his opponent. An example of the practice which there is , is provided by an ethical ruling of the Queensland Bar Council dated 4th February 1975. It is as follows:-
"Counsel may speak to a witness whose examination-in-chief has not been completed, but, as a general rule, he should not speak to him in relation to matters about which he has already given his evidence except to seek an explanation or amplification of such evidence.
Counsel should not speak to a witness (other than an expert witness) whose cross-examination has begun but has not been completed
Counsel may speak to an expert witness whose cross-examination has begun but has not been completed, but only to seek an explanation or amplification of his evidence.
The above rules may be departed from only with the permission of Counsel for the other parties or the permission of the Court".
Similarly, rule 15 of the Conduct Rules of the Western Australian Bar Association provides as follows:-
"Counsel should not, in general, communicate with a witness whom he has called while such witness is under cross-examination. There may be circumstances in which it is necessary, in counsel's judgment, to interview such witness during the course of this cross-examination . In such case he should first inform his opponent of his intention to do so. Counsel is not bound to respect an objection by his opponent to him so doing , but should take it into account, together with the general rule, before determining his course".
The one exception exists in Victoria where, according to Sir Gregory Gowans, Q.c., (op. cit., p.75) there is no rule which forbids counsel to speak to a witness under cross-examination, but counsel must use his discretion and take great care not to influence the witnesses' evidence. This statement is the substance of a ruling given by the Victorian Bar Council on 16th November 1967 .
I confess that I have never been a great believer in the practice forbidding communication. I think that, at least in my own State, I am in a minority in this view Some of my colleagues and some practitioners would regard my view as naive. All I can say about that is that it does not say much for the Bar as a profession which has integrity. A view different from the Victorian view must be based on a fear that witnesses will somehow be alerted to their problems and told how to overcome them . If that is what is likely to happen, then the Bench is not justified in having the confidence and faith in the Bar which it presently has. The relationship is a very special one. It is one which I personally value because of my own regard for the Bar. I would be sorry to think that my faith in this regard is misconceived.
Furthermore, upon the basis that the majority view is correct, the isolation of the witness from solicitor and counsel during cross-examination will not overcome other means which there are of alerting a witness to a problem which he has not himself perceived. Dishonest people will appear to behave properly but will employ subterfuges to achieve their real objects. In my view it all gets back to the question of what faith and confidence one is entitled to have in the Bar. If one has no basis for trust in the Bar, then, not only in this respect but in many other respects, we would have a problem which I do not think we have.
In cases which are tried by judges sitting alone, that is, without juries, some credit needs to be given the judge for perceiving signs of abuse. If, after an adjournment, there is a recollection of something previously not remembered, certainty where previously there was vagueness, or a change in direction in the witness' evidence, the interest, not only of the trial judge, but also of the cross-examiner, will be aroused. It is then that conflicts in the evidence are likely to appear with the result that the difficulties for the witness increase rather than disappear. Of course, there may
well be innocent explanations A witness may genuinely have forgotten an important piece of evidence. Each case must depend on its own circumstances. Nevertheless, I think that in most cases a judge, especially bearing in mind the help he has from a cross-examiner's questions, will percieve the rare case where there has been some attempt improperly to coach the witness during an adjournment.
Witness to Cross-Examining Barrister:
"I put it to you that you are a young, arrogant, rude, stupid, inexperienced barrister who has just asked one question too many. " Young Barrister: "It's a fair cop. You've got me bang to rights."
In passing - and this really is a digressionone of the first things one notices, after one goes on to the bench, is the fact one has a view of the court which is unique. Everybody is in view. Counsel are not in the same postiion because, although they see the witness and the judge, they have to turn to see either their opponents or, except in Victoria, their instructing solicitors. They do not have an opportunity of observing what is going on in the back of the court. In the course of the examination or cross-examination of a witness one can perceive the effect the evidence apparently has on various people One usually knows immediately if the evidence has not come out in accordance with the expectations of counsel and the instructing solicitor. It is not uncommon for signs of uneasiness to manifest themselves. The evidence may have a similar effect on others sitting in court, perhaps witnesses who have already given their evidence. Little, if anything, should be taken from this - such an occurrence would be a dangerous guide to the truth. But it is always interesting (and sometimes amusing) to observe.
My attention to this sort of thing occurring was originally alerted by Lord Pearce who said to a group of barristers of whom I was one that it was always interesting to observe the effect of unexpected evidence, the expressionless faces of counsel, in whose camp the witness was, suddenly became more wooden. The effect on the instructing solicitor was sometimes different. He would do nothing for a little while and then quietly go forward and tug the junior's gown. He would be shrugged off as if he were a total stranger and had no business attempting to speak to him The solicitor would retire and wait a further interval. he would then go further forward and tug his leader's gown. The response would be the same but more adroitly done. My own experience is that after this has gone on, the instructing solicitor not infrequently leaves the Court for the apparent purpose of talking to someone outside it. It is for that reason that I have never had much faith in the order excluding witnesses from being present in Court before their evidence is given It is an order that I do not make unless it is applied for. Nevertheless counsel usually observe the practice of keeping witnesses outside the Court until they are called to give their evidence.
I think any counsel who, in a trial without jury, thought that he could take advantage of an adjournment to alert a witness to a problem he was getting into and suggest ways of handling it to him might do much more harm than good . A judge would not have to be particularly perceptive to discern after lunch or the next morning what had occurred .
The position in relation to jury trials may be different. But one never knows what a judge may say in his summing up. And in any event there are the considerations mentioned in the earlier part of this discussion.
(ij) He-examination
The only matter I wish to mention here is whether it ought to be customary, if counsel requests it, to grant counsel the opportunity of conferring with his client after crossexamination concludes. Even where there has been Discussion with counsel during the course of the cross-examination, in a complex case such an opportunity may nevertheless be necessary to enable a proper re-examination to be conducted. So far as I am aware there is no written practice about this matter. But
SUMMER 1986
from my perception of the practices of the various Bars in Australia, I think there may be differences of opinion about it. My own practice is usually to grant the opportunity if it is sought. In some cases I have even suggested that it be made available without any request from counsel. But I am not sure that my practice is one which universally applies even in N.S.W. and counsel will always be wise to ask a judge what his practice is.
(c) Criminal Trials
There are only two matters that I wish to discuss under this heading. One is the extent to which counsel should assist an accused person in the preparation of any statement which he proposes to make. (Editors note: Since 1st July 1986 this is no longer a problem in Victoria By s. 7 of the Crimes Act (Amendment) Act 1986 an unsworn statement by an accused represented by Counsel must be adduced in question and answer form. A conference with the accused will therefore be governed by the same rules which apply where sworn evidence is to be given.) The other is the old chestnut of what to do if the client himself indicates that he is guilty of the crime with which he has been charged.
In so far as confessions of guilt by accused persons are concerned, my understanding of the position is that, if a confession is made before the trial commences, then, unless it is quite impossible for it to be achieved, there should be a change of solicitor and counsel. If, on the other hand, the confession be made during the course of a trial, then counsel not only is entitled, but has a duty, to continue to appear, notwithstanding that the plea is not guilty. But in those circumstances his role is limited to testing the Crown case and raising matters in order to persuade the jury that the Crown case has not been established. It would be improper for counsel to continue to appear and to raise a positive case in opposition to the prosecution, for example , an alibi. In other words, counsel's task is to put the Crown to the proof of its case and test the credibility and reliability of the evidence on which it relies. He must not take the offensive and made a case which, ex hypothesi, he knows to be false. The principles which I have expounded come from a variety of sources. These are conveniently collected in two articles by Mr. JV Barry, Q.c. (later Barry J. of the Supreme Court of Victoria), one in two parts in 15 A.L.J. at pp. 166 and 201, and the other in the Victorian Law Institute Journal for 1st March 1947. Each of these articles refers to the decision of the High Court in Tuckiar v. The
King (1934) 52 c.L.R. 335 and to an article by the distinguished legal writer and commentator, Dr. c.K. Allen, entitled, "R. v. Dean"; see (1941) 57 L.Q.R. 85. Mr. Justice Barry's articles, Dr. Allen's analysis of the Dean case and its implications and Tuckiar's case need to be read fully and comprehensively. They should be compulsory reading for barristers during their reading period at the Bar
I do not think that there is anything which lay people have more difficulty in understanding than the duty counsel has to appear for someone who is apparently guilty and who may even have confessed his guilt to his counsel. Nothing is more likely to cause raised eyebrows at a dinner table at which non-lawyers are the principal guests. Nevertheless the path of the advocate who is confronted with a confession by his client is clear. If a confession is made during the trial, counsel has a duty to continue to appear for the accused. The plea of not guilty may be maintained but counsel must not make a positive case in answer to that of the Crown.
It has occurred to me that the decision of Kay J. in Linwood v. Andrews (1888) 58 L.T. 612 may suggest that there is a distinction between civil and criminal cases. In that case Kay J held that it was the duty of a barrister to disclose to the Court the fact that affidavits were, to his knowledge, untrue. If the rule expounded by Kay J. were applied in criminal cases, counsel would be under an obligation to inform the Court of his client's confession. On the contrary he has a positive duty not to do so.
In conclusion may I say that the preparation of this paper has reinforced me in the view that the various bar associations in Australia ought to consider uniform codes of practice, ethics and conduct by their members. Further reinforcement for that view has been provided by some of the other papers and the ensuring discussion at this Conference It is now commonplace for counsel to appear in a variety of States and Territories. Not only is this because of the existence of the Federal Court and the Family Court, but also because counsel are very often admitted to practice in more than one State or Territory. Counsel quite regularly appear in Supreme Courts of States or Territories other than that of the State or Territory of their admission. The Australian Bar Association would perform a very valuable function if it were to attempt the drafting and acceptance by the various bar associations of uniform rules dealing with practice, ethics and conduct generally.
Legislative Over- Reaction
Gerry Nash looks at some unintended consequences of legislative shooting from the hip
Reactive Legislation
Occasionally a court of first instance , or even an appellate court , reaches a finding of law which is either contrary to the expectations of the government of the day or which outrages the subjective morality of a particular political party or of the community generally The almost inevitable reaction of the legislature is to correct this "defect" in the law - often with retrospective effect.
In the hue and cry which newspapers or radio and television broadcasters can raise against a controversial or misunderstood decision, objectivity and perspective are often lost. There is often little or no understanding of legal history or of the place which the particular decision holds in the overall fabric of the law There is an assumption that the law, rather than being a seamless web, is a patchwork collection of rules, something akin to an old quilt, onto which patches can be cobbled and from which patches can be removed without any effect on the overall structure.
It is my contention that the legislature should not react to correct an apparent anomaly unless: (a) the anomaly has been entrenched in the common law by a decision of the ultimate appellate court within the relevant hierarchy; (b) the anomaly has been a matter of comment by the judiciary in the course of giving that decision; and (c) there has been an opportunity for informed and educated comment as to the effects of correcting the anomaly and as to the way in which the anomaly can be corrected.
Legislation passed as a reaction to a particular decision is , of its very nature, likely to lack objectivity; and it will seldom demonstrate the universality of application and the depth of analysis which should
provide the hallmark of, and background to, any significant and responsible change to the structure of our legal system.
Altering the concept of marriage
In September 1985, at the trial of a man charged with the rape of his wife, the trial judge ruled that a husband could not rape his wife because by the fact of marriage she was presumed to consent to sexual intercourse. From this he drew the conclusion that the charges of rape (which were based on acts of anal and oral intercourse against the wife's consent) must fail.
Whatever the merits of his Honour's decision, and whatever the possible views which an appellate court in that case or in some subsequent case might have expressed, the legislature reacted with vigour.
To overcome the problems seen as arising out of that September 1985 ruling , the legislature introduced a new section 62 (2) into the Crimes Act 1958 . That section provides :
"The existence of a marriage does not constitute, or raise any presumption of, consent by a person to an act of sexual penetration with another person or to an indecent as sault (with or without aggravating circumstances) by another person."
An act of sexual penetration, as defined in section 2A of the Crimes Act 1958 includes (inte r alia) "the introduction (to any extent) of the penis of a person into the vagina, anus or mouth of another person of either sex whether or not there is emission of semen : ' Consequently section 62 (2) now proVides, not merely for the purpose of the criminal law but generally, that the existence of a marriage does not raise any presumption of consent to an act of normal sexual intercourse nor does it constitute consent to normal sexual intercourse.
The common law has had considerable difficulties defining marriage In Hyde v. Hyde (1866) L.R. 1 p. & D. 130 , Lord Penzance said (at 135) ;
" Now it is obvious that the matrimonial law of this country is adapted to the Christian marriage, and is wholly inapplicable to polygamy The matrimonial law is correspondent to the rights and obligations which the contract of marriage has, by the common understanding of the parties, created."
His Honour had earlier stated (at 133) : "I conceive that marriage, as understood in Christendom , may for this purpose be defined as the voluntary un ion for life of one man and one woman to the exclusion of all others;'
In most parts of Christendom in 1866, and today for that matter (wherever the limits of Christendom may now be set), both the common understanding of the parties as to the nature of marriage, and the union of a man and a woman to which his Lordship adverts contemplated a relationship involving sexual intercourse.
It is true that in Australia it is now no longer possible to obtain a decree of nullity (from the civil courts) on grounds of impotence or wilful refusal to consummate Although under section 51 of the Family Law Act 1975 an application for a decree of nullity of marriage may be made where the marriage is void, the concept of void marriage is now limited by section 23 (1) of the Marriage Act 1961. That section does not include grounds of impotence or wilful refusal to consummate. It would be comforting to think that our legislators, when enacting section 62 (2) of the Crimes Act, considered the problems of nullity and adverted to the effects of section 23 of the Marriage Act 1961. There is , however, reason to doubt this
Under section 23 (1) of the Marriage Act 1961 marriages are void (inter alia) where the consent to the marriage of either of the parties is not a real consent because (i) it was obtained by duress or fraud; (ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony.
If, in Victoria today, marriage does not involve an express or implied consent to sexual intercourse by husband and wife (as opposed to consent to any particular act of sexual intercourse), it is my submission that most young couples who have gone through the ceremony of marriage since the new section 62 (2) was introduced into the Crimes Act, have done so under a mistake as to the nature of the ceremony performed
If marriage does not constitute a consent, or raise a presumption of consent, to sexual intercourse, then one is left with the question, what is marriage? While the view expressed in Hyde v. Hyde may have reflected the ideal rather than the reality at the time, and while marriage today may in fact be a much more transitory state, the concept of the "union" of a "man" and a "woman" (however sexist these concepts may be today) still appears as a matter of fact, if not as a matter of law, to lie at the heart of the marital relationship.
VICIORIAN BAR NEWS
Marriage necessarily involves a presumption of consent to sexual intercourse. It does not necessarily involve a consent to sexual intercourse at each and every time that one of the partners feels like it. Perhaps the legislature really meant to proVide that there should be no irrebuttable presumption of consent or that consent to any particular act- of sexual intercourse should not be implied from the existence of the marriage . That is not, however, what the legislature has done. It has altered the concept of marriage in Victoria. That change means that the prohibition on degrees of consanguinity no longer has real relevance; nor would there seem to be any conceptual objection to marriages taking place between persons of the same gender.
Resurrecting Early Victorian a
In an article in volume 30 of the Law Quarterly Review in 1914 a Mr. Williams expressed regret that, by reason of the statutes passed in England from 1872 onwards, an accused had become a competent witness on his own behalf. He said "No sooner have we elaborated precautions for ensuring the voluntary character of confessions than we strike a blow at the underlying principle, and substitute the moral compulsion of the witness box for the physical compulsion of the rack."
The learned author of the first Australian edition of Cross on Evidence said of that statement: "It is highly improbable that anyone holds such views today. The risks of a miscarriage of justice are far greater when the witness box is denied to the accused than they are when, as at present, he may enter or remain absent from it at his option." That, however, was in 1970. Our legislators , it would seem , believe that it is more just, at least in certain areas, to deny the witness box to the accused.
In February of this year the Full Court of the Supreme Court of Victoria handed down the decision in Lamb v. Morrow (1986) v.R. 623. The Full Court there held that evidence relating to the accuracy (or rather the inaccuracy) of breathalysers in general could be led by a defendant for the purpose of challenging the accuracy of the breathalyser reading.
The legislature has reacted vigorously. It has introduced legislation the effect of which is to create a new offence in respect of which no evidence may be led to rebut the accuracy of the breathalyser reading, other than evidence which relates directly to the accuracy of the specific machine.
This legislation will effectively render the evidence of the breathalyser irrebuttable in the case of a person found to have a blood alcohol level in excess of the prescribed limit within 3 hours after driving. Such a person will seldom be given an opportunity to check that the machine is calibrated correctly, will be given the number of the machine so that he can check it at a later date, or will be given possession of the machine so that his scientific advisers can check whether, at the time of recording the reading in question, the machine was recording accurately.
By creating the offence of exceeding the permitted limit AFTER driving the Bill in effect creates an irrebutable presumption that the reading taken within three hours of the time of driving represents accurately the blood alcohol content of the accused at the time of driving.
It is an unfortunate fact that machines are sometimes inaccurate, that there is a degree of discrepancy in readings between machines, that machines can be wrongly calibrated, that police officers can make mistakes. None of these facts will be changed whatever legislation is introduced.
While accepting that the criminal law and its administration do not constitute a game and that the administration of criminal justice should not be impeded unnecessarily by irrelevant and obsolete rules of procedure, the creation of irrebuttable presumptions - or effectively irrebuttable presumptions - of guilt does appear to be contrary to the ethos of the common law.
It was once necessary that the Crown prove its case beyond reasonable doubt; and there was an old fashioned (if misguided) idea that it was "better that ten guilty men should go free than that one innocemt man" should be convicted.
When it comes to rape, murder, burglary, child molestation or vicious and unprovoked assaults, this is still the situation. In the case of a person charged with an offence under s. 49(i) (f) of the new Road Safety Act (Le. a "suspected" .05 offender) the rules will be changed.
Sometimes a breathalyser (i) will malfunction, (ii) will give an excessive reading, (iii) will not be calibrated accurately, or (iv) will be misread or incorrectly operated by a weary operator dragged from his bed in the middle of the night. There will be cases, no matter how few, in which the breathalyser reading put before the court will not represent the percentage
of alcohol in the blood of the accused at the time when the reading was taken. There will also be cases where the recording, though accurate at the time when the reading was taken, will not accurately represent the blood alcohol content of the accused at a time three hours earlier. Yet evidence will not be permitted either to rebut the accuracy of the reading or to show that the percentage of alcohol in the blood of the accused changed between the time of driving and the time of the breath test.
There MAY be defensible reasons to make the breathalyser readings invulnerable to forensic attack. If there are such reasons which will stand up to objective analysis, it is unfortunate that the proponents of the Bill have not seen fit to subject their reasons to such analysis before introducing the Bill.
If the legislation is worthwhile and justified, there would appear to be no reason, for example, why the legislation should not be subjected to analysis by the Law Reform Commission, a report provided by that body, and the Bar Council and the Law Institute given an opportunity to comment on that report before uninformed reaction overturns the common law.
If the principle contained in the Bill is acceptable in respect of .05 offences, there is no reason why it should not be accepted in respect of other criminal offences.
If the legislature really believes that the principle which is embodied in this new .05 legislation is valid and justified, no doubt the next logical step will be to develop a series of irrebuttable presumptions in relation to all criminal offences. This will save a considerable amount of public money and court time, and at the same time will ensure that very few guilty men go free. The innocent men who are convicted should merely be seen as necessary casualties of developing an efficient criminal justice system.
Where scientific evidence is given by the Crown as to the identity of the blood, the hair or the fibres found on the accused or in his car, or where fingerprints or the footprints found at the scene of the crime are said to be those of the accused, defence evidence to rebut these conclusions should not be permitted. To allow the defence to lead forensic evidence which contradicts the forensic evidence led by the Crown will only confuse the jury and lead to unnecessary (and perhaps unjustified) acquittals.
The Practicality of Plain English
Professor Robert D. Eagleson. Department of English at the University of Sydney, is a part-time Commissioner of the Law Reform Commission (Victoria) He is Commissioner in charge of the Commission's reference on plain English. A Discussion Paper on the subject (Legislation, Legal Rights and Plain English) has already been published in this article, Professor Eagleson deals with the fundamental principles of plain English and the present involvement of the legal profession with it
A statute should not only be clear and unambiguous, but readable. It ought not to call out for the exercise of a crossword/ acrostic mentality which is able to ferret out the meaning from a number of sections, schedules and regulations
However th e remainder of cl. 1 {i} must be read, no easy task consisting as it does of one unpunctuated sente nce of over 450 words of small print which is presented to the reader in twenty -five closely set lines, each of excessive length. There the resolute and persevering may find, in the midst of much else, the phrase "and whether contingently or
These are not the words of lay persons or of pernickety English professors , but the observations of a respected British Queen's Counsel and a former member of the Australian High Court. Nor are they unstudied comments given spontaneously at some informal function The first comment was made by Sir Robert Micklethwait QC before the Renton Committee when it was conducting its enquiry which led to the report The Preparation of legislation (1975:p 28). The second is contained in a judgment of Stephen J. in National Bank of Australasia Ltd v. Mason (1975) 133 CLR 191, 203 They remind us that the Bar and the Judiciary are strongly opposed to the obfuscation and convolution which too often occurs in legislation, and are as anxious as any section of the community to see the end of legalese
The present undertaking in the Victorian Law Reform Commission was initiated by a barrister - the Attorney-General, the Hoo. Jim Keonan. The progress of plain English in legal documents, then,
They have good grounds for their concern and daily cause for despair as they seek to come to grips with legislation on behalf of clients or parties to an action. Here is but one of the many illustrations which could be drawn from the Credit Act 1984 alone:
69. (1) Where a credit provider agrees to discharge one or more regulated contracts to which the credit provider and the debtor are parties in consideration of the entering into anoth e r credit contract by the debtor (whether or not a regulated contract), the credit provider shall, before entering into the oth e r credit contract , give to the debtor a statement in writing stating , in respect of each of the regulated contracts to be discharged -
(a) the amount that would b e due to the credit provider under section 105 if, immediately before the relevant date , the debtor were to discharge his obligations under the contract in acc ordance with that section; and
(b) in the case of a regulated cred it sale contract or a regulated loan contract, particulars of the calculation of that amount by setting out(i) the outstanding balance of the amount financed;
(ii) the outstanding balance of the accrued credit charge;
(iii) the outstanding balance of deferral charges (if any) charged in accordance with thi s Part; (iv)the outstanding balance of default charges (it any) charged in accordance with this Part; and
(v) the outstanding balance of enforce ment expenses (if any)and (where the relevant insurance and maintenance contracts are discharged) the amounts of statutory rebates (if any of insurance charges and maintenance charges deducted from the sum of the amounts referred to in subparagraphs (i) to (v)
(2) In sub-section (1), "relevant date" means the date on which the new credit contract is entered into or, if that credit contract is entered into by the acceptance by the credit provider of an offer made by the debtor, the date on which the offer is made.
This style of drafting shows no consideration for readers. When readers first come upon relevant date in paragraph (a) , they can find no help in turning to the definition section at the beginning of the Act where we normally expect special terms to be explained. Instead they have to remain in the dark about the term's meaning until they have struggled through the 16 lines of paragraph (b) . The delay between the introduction of relevant date in paragraph (a) and its unpredicted resolution in subsection (2) puts an unnecessary strain on readers. Although paragraph (a) becomes longer, it is far more efficient from the readers' point of view as:
(a) the amount that would be due to the credit
provider if the debtor were to discharge his obligations under the contract in accordance with section 105 immediately before the date on which the new credit contract is entered into or on which the debtor made an offer to enter into it.
Not only is all the pertinent material now brought together in the one place in this plainer version, but readers are also saved from grappling with yet another concept, namely 'relevant date '. In the process of eaSing the task for readers by a more competent arrangement of the material, the number of words that they have to cope with has also been reduced from 80 (paragraph (a) plus subsection (2)) to 51. There is a double saving of time , without any wresting of the legal content. When all this can be achieved so simply, it is little wonder that the profession complains and calls for a better drafting style.
The hidden leaders
The emergence of the modern plain English movement in the mid seventies as a solution is seen to have its motivation in consumerism. Commercial organisations and then governments began to pay attention to the rights of consumers, and particularly their right to be able to understand documents and legal agreements which they were called upon to sign or comply with But what is often overlooked is that so much of the real work in bringing about the improvements and simplification to legal documents has been done by members of the legal profession. It was Carl Felsenfeld, who subsequently became Professor of Law at Fordham University, who directed the programme at Citibank. It led to the development of one of the first plain language documents -a new style loan agreement , which was introduced in January 1975 . It was the legal department at the NRMA which took a leading part in developing the first Australian plain English insurance policy and which continues to play a significant part in the development of new policies. The present undertaking in the Victorian Law Reform Commission was initiated by a barrister - the Attorney-General, the Hon Jim Kennan The progress of plain English in legal documents, then, has not been something which the legal profession has watched passively from the sidelines , but rather an activity to which it has contributed extensively.
In these projects members of the legal profession have joined with experts in language and design But it has never been a question of one group of experts ousting the other or of lawyers abdicating their responsibilities . Instead it has been very much a
matter of collaborative efforts in which the resources of all the experts have been needed and drawn on, for simplification can take place on several levels
Content language and design
There is first the level of content. The trouble with many legal documents is that they retain conditions that are either obsolete or inapplicable . It is here that the participation of lawyers is critical for only they are expert enough to know what is necessary and what can be omitted safely. There are also the levels of language and design. The mode of writing in many legal documents in the past has been cumbersome and obscure, and their appearance has been ugly and cluttered . It is in these areas that linguists and designers have been called upon to assist and only in them that they have sought to offer guidance from the wealth of their research in these speCialist fields.
This proper and fruitful collaboration has important consequences for the quality of legal documents . It places us in a position to produce documents which are accurate and complete - to protect the rights of all parties - and also readable - to make those rights comprehensible .
Precision with comprehensibility
Experience has confirmed that this goal of precision and comprehensibility can be achieved. At the launching of the first NRMA plain English insurance policy forebodings were expressed that the policy would not hold up in court, and this despite the fact that lawyers had been continuously associated with its preparation. The prophecies of disaster for the Company have not been fulfilled In its 10 years of operation the policy has been produced in a number of court cases but never once has the legal standing of its wording been successfully challenged, nor has the wording been queried by any of the many different judges who presided over the cases. The NRMA has not been caused any commercial embarrassment by its decision to adopt plain English . Indeed it has found that litigation over the wording of its policy has diminished since the change from legalese was made .
The experience of the NRMA has been repeated by other companies in Australia , and also in Britain , Canada and the United States , and not just insurance companies, but banks, finance companies, gas and electricity utilities, manufacturers and retailers. It had to be . Commercial organisations cannot afford to have documents which are legally imprecise or faulty in any other way If plain language in any of the documents produced in the early reforms had been
SUMMER 1986
found not to protect users, then plain language would not have progressed as far as it has today. That plain language reform has been taken up by more and more organisations and governments rests on its solid success at achieving legal precision. Even tax returns, for so long held to be untouchable because of the complexity of tax laws, have yielded to vast improvements without any losses to governments
Communication or law
To ensure that purging documents of ponderous and erroneous modes of writing does not affect their legal precision it is important to understand what plain English drafting involves. This can perhaps be best explained briefly by comparing some examples in the traditional style with plain English versions
The central fault with traditional versions is that they ignore the normal approach of readers to language We have learnt from experience, for instance, that in dealing with a sentence we must store each word we come upon in short-term memory without seeking to interpret it fully until we have reached the fulJ-stop, because the total structure of the sentence can affect the interpretation, for example visiting in
Visiting relatives are a nuisance.
Visiting relatives is a pleasure.
What this means, however, is that if we let our sentences run on and on for hundreds of words , then we place an impossible burden on the short-term memory of our readers and force them to read and reread the sentence over and over again Yet this is what happens regularly in legislation Here is a briefer illustration from the Children's Court (Amendment) Act 1986:
(2A) Any person aged seventeen or more shall be taken to be guilty of contempt of court if that person(a) Wilfully insults, threatens, interferes with or obstructs any magistrate or officer of a children's court in the court or in the vicinity of the court ; or (b) wilfully insults, threatens, interferes with or obstructs any magistrate who is going to or returning from a children's court ; or (c) wrongfully influences or attempts to influence any magistrate or officer of a children's court or any witness or any person concern e d in any way with proceedings of the court; or
(d) is present in court in contravention of an order made under section 18(1)-
and th e court may by order, wh e ther or n ot in writin g, direc t th a t pers o n to be rem o ved from th e co urt a nd to be take n into c usto dy and at any time befor e the ri sing of th e co urt may impose o n th a t person a penalty of not m o re than 5 penalty units and, in default of
immediate payment of that penalty or without imposing any penalty, may order that that person be imprisoned for a term of not more than one month.
To cope with this sentence readers are forced to break it up into more manageable segments . As writers we should be doing the job for them, and could do it quite easily. The last portion after custody could readily be separated from the preceding words and with the minimum of change be turned into additional sentences:
At any time before it rises , the court may order that the person be imprisoned for a term of not more than one month or impose on him or her a penalty of not more than 5 penalty units. If the person does not pay the penalty immediately it may order him or her to be imprisoned for a term of not more than one month These slight changes help to break up the material into more accessible units without omitting any crucial item or disturbing any critical connections.
In Victorian legislation there is the unfortunate practice of interposing adjuncts between the verb and its object, and even between parts of the verb .
(4) If the liquidator or trustee does not comply with any proviSion of this section (or fails as trustee duly to pay the long service leave charges for which the liquidator or trustee is liable under sub-section (3)) the liquidator or trustee must to the extent of the value of the assets which have been taken into the liquidator'S or trustee's possession and which are or have been available at any time for the payment of the long service leave charges be personally liable to pay the long service leave charges and is gUilty of an offence.
Construction Industry Long Service leave (Amendment) Act 1985 section 19 (emphasis added)
The gap between the auxiliary must and its verb be is excessive and unnecessary. Research has shown that discontinuities in structure like this are disturbing for most readers. They can readily be avoided . Here, for instance, the adjunct could have been placed at the end of its clause
The critical point to notice about the two plain English versions presented here is that they do not entail any change to or diminution of the law No plain English rewrite will for it could not protect the rights of consumers if it did. What is involved is an improvement in the communication of the law The whole emphasis is on clear communication : the integrity of the law itself is never in jeopardy
But - and this is also critical - the emphasis is on communication as well as on content, and readability as well as on accuracy Nor are these two
characteristics seen as competing but equally important. There is a misconception among some drafters that accuracy is above readability; that somehow the two are at odds, and that if both cannot be attained, then readability must be sacrificed. But this is a lame excuse to cover incapacity rather than a reasoned and well-founded principle. In fact the more complicated the material, the greater the need for readability, so that all the reader's attention can concentrate on the substance and not be distracted by the language. There is no conflict or disjunction between precision and comprehensibility: instead they are intertwined. Plain English is far more challenging and rewarding in that it seeks to achieve both simultaneously and not to put either at a discount.
Technical terms
So far we have left out of consideration technical terms which are so often posed as an insurmountable stumbling block. For all the commotion that is made about them, technical terms do not provide the major justification for the preservation of legalese that is sometimes claimed. [t is true that they will be an obstacle to comprehension for the ordinary reader, but it is equally true that they constitute only a very small proportion of the total number of words in any document. Moreover readers can turn to other sources, such as speCialist dictionaries, to get assistance with them, and if writers are concerned to meet the needs of wide audiences they can provide explanations or definitions for these technical terms. This is the approach the US Federal Home Loan Mortgage Corporation has adopted in its documents. The old version of one of its mortgages reads:
Presentment, notice of dishonor, and protest are hereby waived by all makers, sureties, guarantors, and endorsers hereof.
A new plain language version helps readers cope with these terms while retaining them to preserve the legal force of the document:
I waive my right to require the note holder to do certain things. Those things are: (1) to demand payment of amounts due (known as 'presentment') ; (2) to give notice that amounts due have not been paid (known as 'notice of dishonor' ); (3) to obtain an official certificate of non-payment (known as 'protes!') . Anyone else (a) who agrees to keep the promise made in this Note, or (b) who agrees to make payments to the Note holder if I fail to keep my promises under this Note , or (c) who signs this Note to transfer it to someone else (known as 'guarantors, sureties, and endorsers'), also waives these rights.
While these devices may help readers manage with technical terms, there are no parallel deVices, short of rewriting, which we can give them to disentangle
long, rambling sentences, into which every conceivable qualification on a topic has been mindlessly packed. Nor is there any help ready to hand to cope with shoddy organisation , ambiguities and obscurities It is possible to rid a document of everyone of its technical words and still be left with a maze of gobbledegook which defies easy interpretation.
A narrow preoccupation with terms of art has blinded many to the greater injurious effect on comprehensibility of other features of language, particularly poor organisation and prolix sentences . It is on these more damaging matters that plain English drafters properly concentrate.
Concurrence from the profession
These principles for drafting are not novel, nor are they unknown to the legal profession or beyond its capacity. On the contrary its more able members have always practised them . In his submission to the Renton committee, Lord Denning observed :
If you were seeking to see what different principles should be applied , the first would be to recommend simpler language and shorter sentences. The sentence which goes into ten lines is unnecessary. It could be split up into shorter ones anyway, and couched in simpler language Simplicity and clarity of language are essential.
The Preparation of Legislation [1975] p. 20
These precepts parallel the ones that we have mentioned above and examined more elaborately in the discussion paper Legislation, Legal Rights and Plain English. As we know, Lord Denning followed them in his own writing, and so have many other judges and barristers, to the great pleasure of their colleagues. Indeed if our laws are properly conceived and well constructed, and if our understanding of what we propose in them is exact, then we should be able to give them a clear form of expression. In the final analysis legislation in plain English is a measure of our intellectual and legal cqmpetence. Any other style is a sure indication of uncertainty, imprecision or ineptitude.
What we now need to do is to press all in the profession to abandon the old conventions of drafting which run counter to the principles of plain English and which lead to gobbledegook. Not only will we be benefiting the general public in this endeavour, but we will also be doing ourselves a favour, for we will no longer have to waste time struggling to comprehend the obscure, twisted legalese which others currently force on us. Instead we will be free to concentrate on the real - and interesting - issues of law. This is what makes the plain English reference to the Law Reform Commission so interesting to the profession and so deserving of its promotion
SUMMER 1986
Welcome and Farewell
Mr. Justice Ryan
Don Ryan and the Federal Court were always made for each other. The Court's mildly idiosyncratic mixture of administrative, business and industrial jurisdictions, its comparatively heavy load of technically difficult cases, and its continuing slight air of raffishness together constitute an environment into which his Honour will fit like a glove.
Ryan J. has never been, it is true, a rackety, rowdy sort of fellow. On the contrary. But no-one who has witnessed the chords of mutual affection and respect he has struck over the years with a legion of life-size - and large - trade union figures can possibly doubt his appetite for humanity in all its manifestations. Owen Dixon Chambers has no doubt seen some pretty incongruous sights over the years, but few more gloriously so, or more regular through the 1970s, than Norm Gallagher and his lads from the sites stomping their way past all the Sixth Floor equity silks into D.M. Ryan's then rather scruffy and musty little chambers for yet another council of war.
There will be no doubt in anybody's mind about Don Ryan's capacity to handle, and to handle brilliantly, the Court's industrial jurisdiction. He has acquired, both among his peers at the Bar and throughout the trade union and business communities, an immense reputation as an industrial lawyer. He appeared often enough on the other side of the fence not to be typecast as just a union, or employers', man; he has always been completely on top of his material, able
to adapt his presentation or advice to just about any contingency; and he has been a fund of sturdy practical common- sense, probably the most invaluable asset of all in this jurisdiction where more of it is required than in most others.
What is perhaps less widely appreciated, given the way in which Don was so visibly a leader of the industrial Bar, is just how excellent a legal all-rounder he has been. He read with Hadden Storey, who combined his politics with a substantial commercial practice, and his early practice in the Magistrates' and County Courts was mostly in real property, building disputes and commercial law; he kept fully abreast of developments in commercial and equity matters during his entire 21 years at the Bar; and he developed a substantial practice in administrative and constitutional law in his later years.
Those who probably know and appreciate best of all the sheer diversity of Don Ryan's legal skills are his 10 very privileged readers: Cairns, Crisp, Riordan, Evans, Hickey, Kaufman, McDonald, Collins, Aronson and McDermott. His gluttony for punishment extended not only to taking on such a large and diverse crew in the first place, but to an infinite willingness to lead them patiently and expertly through the procedural and substantive mazes of dozens of different jurisdictions. He was as equally at home with rapes, workers' compensation, custody, TFMs, .05's and defamation as he was with 45Ds and s.51 (xxxv) of the Constitution; a marvellous, unflappable, deeply learned master, and one without peer as such at the Melbourne Bar (although there have been those who will assert that not all his qualities have rubbed off on all his pupils).
There can be no doubt in anyone's mind about the intellectual quality and application that Don Ryan will bring to the Federal Court. After his educational grounding at Dandenong High, he had a highly successful undergraduate career at Melbourne University, reading Latin in his Arts course and graduating with high Honours in Law; shortly after signing the Bar Roll in July 1965, he was one of the first counsel to be recruited by Sir David Derham as a Teaching Fellow at Monash University; he was also in demand to tutor students doing the RMIT articled clerks course, and acted as a consultant to the Leo Cussen Institute for its practical training in Supreme Court litigation; between 1974 and 1980 , when he took silk, he was - perhaps most masochistically of all - Editor of the Federal Law Reports; and since 1984 he has been a part time member of the Australian Law Reform Commission .
These formal milestones are only part of the story Everyone who has worked alongside Don Ryan, or seen him in action academically or professionally, can testify to the formidable quality of his practical intelligence. He gets quickly to the essence of a problem, knows exactly what is relevant to its solution, and says - qUietly but lucidly - no more or less than is necessary to put the argument in question. These qualities - combined with patience and courtesy - are all of course admirable ones for the Bench no less than the Bar, and in Don Ryan 's case no one doubts that they will be evident from the outset.
Ryan J. has no known private vices, apart from continuing to read Latin authors long after he has had to, and playing tennis a lot better than his pale and cerebral countenance and wispyish physique would lead one to suspect. His wife Gabrielle and his two delightful children, Fiona and Christopher, will be justly proud of his elevation, as will his innumerable friends inside and outside the legal profession.
Sir Reginald Smithers
Sir Reginald Smithers was born in Echuca on the 3rd February 1903, the youngest of five sons. His father was a piano tuner and His Honour won a half scholarship to Melbourne Grammar (for singing) where the late Mr. Nixon perfected a voice many juries were subsequently to hear as he mustered all his considerable skills in favour of his client's causes. By dint of his hard working qualities which have been the hallmark of his great career, he achieved admission to practice in 1924 after part time studies whilst working for Shaw & Turner, solicitors His Honour signed the Bar Roll on the 6th May, 1929 and is number 268 on the Roll.
Having put aside a budding political career, and after service in the R.A.A.F. in New Guinea and elsewhere, in 1951 His Honour (then aged 48) took silk. His career as senior counsel flourished in the same way it had for the years he was a junior His Honour is particularly proud of the time he served as a member of the Bar Council and as its Chairman in 1961 and 1962. He was instrumental in the completion of Owen Dixon Chambers, the establishment with the Law Institute of the Legal Aid Committee and also largely responsible for needed improvements to the clerking system.
1962 saw His Honour off on a judicial career when (some might say because) young Adrian signed the
Continued Page 36
New Silks
Readers:
David Lindsay Harper
Age: 43 Year of Admission: 1969
Articles:
Arthur Robinson & Co. Year of Signing Bar Roll: 1970
Masters: Peter Brusey James Gobbo
Kim Hargrave, Guy Gilbert, Robert Shepherd, Stephen Q'Bryan, Bruce Caine, David Robertson, Ian Hardingham. Areas of Practice: Commercial, Comercial Crime, Administrative Law.
Readers:
Michael Rozenes
Age: 40
Year of Admission: 1971
Articles:
Galbally & Q'Bryan
Year of Signing Bar Roll: 1972
Master: George Hampel
Jill Crowe, Michael Rush, Jeanette Richter, Douglas Trapnell. Areas of Practice: Crime and Commercial Crime.
Readers:
Ross Howard Gillies
Age: 43 Year of Admission: 1966
Articles: Clarke Richards Grant & Co.
Year of Signing Bar Roll: 1967
Master: John Barnard
Peter Young, Paul Maginn, Dennis Connell, Terry Forrest, Chris Blanden. Areas of Practice: Common Law, Insurance, Defamation.
Readers: John Pilley, Simon Whelan.
Areas of Practice: Common Law.
Leslie Charles
Ross
Age: 51
Year of Admission: 1961
Articles: McGindle & Haines
Year of Signing Bar Roll: 1963
Master: Gordon Just
Readers:
Allan James Myers
Age: 39
Year of Admission: 1971
Articles: Corr & Corr
Year of Signing Bar Roll: 1975
Master: Ron Castan
Paul Jens, John Glover, Tony Pagone, Kevin Andrews, Joseph Tsaladis, Colin Howard. Areas of ·Practice: Commercial, Revenue Law, Trade Practices.
Readers:
George Peter Faris
Age: 46
Year of Admission: 1963
Articles: Patrick Cash & Associates
Year of Signing Bar Roll: 1970; resigned 1975 Master: John Read
Chris l.oveham, Kim Henderson. Areas of Practice: Crime and More Crime!
Mark Samuel Weinberg
Some Statistics on Silk
Photograph not available at time of printing
Readers: None.
Age: 38
Year of Admission: 1974
Year of Signing Bar Roll: 1975
Master: Jack Fajgenbaum
Areas of Practice: Criminal Appellate Work.
Readers:
Raymond Antony Finkelstein
Age: 40
Year of Admission: 1971
Articles: Sackville Wilkes
Year of Signing Bar Roll: 1975
Master: Michael Black
David Clarke, Trevor Mcl£an, Susan Morgan, Justine O'8ryan, David O'Callaghan.
Areas of Practice: General Commerdallaw, Company Law, Industrial Law, Equity
Readers: Gavan Rice.
Heathcote McMichael Wright
Age: 44
Year of Admission: 1966
Articles: Paveys
Year of Signing Bar Roll: 1973
Master: Stephen Charles Areas of Practice: Town Planning, Local Government.
Continued from 33 Bar Roll in 1961: and a peripatetic career it was, the Supreme Court of Papua & New Guinea, Australian Capital Territory, Northern Territory, The Industrial Court and finally in 1977 the Federal Court and also as a Presidential Member of the Administrative Appeals Tribunal.
His Honour was also Chancellor of La Trobe University 1972-1980 and has been since 1967 and remains President of the Australian Association of Youth Clubs.
The Commonwealth Government gave the members of the judiciary a difficult task on the formation of the Federal Court and its reputation as a willing workhorse and as one held in high esteem was enhanced by His Honour's capacity for work and undoubted ability, qualities that saw him enter law in the first place. As many know, an inquiry for a Judge to hear an urgent ex parte injunction more often than not resulted in a reply that "Smithers J. will hear it" and invariably it was at the most odd hour because His Honour was sitting normal court hours as well. In the character of the kindly, knowledgeable and astute person he is, His Honour
would, as Alex Chernov Q.c. noted in his farewell, invariably have the issue down to one or two in a very short time and then start the application of His Honour's persuasive powers to any Counsel who sought to argue the contrary of what was "clear simple common sense surely" (emphasis added by His Honour) - and all this with the sense of humour for which he was renowned.
A well-deserved knighthood was conferred on His Honour in 1980. His many achievements in the public arena as well as these in the law were touched upon at his farewell on the 24th September 1986, which for all in attendance, was the most extraordinary experience and occasion.
His Honour's closing remarks were: "It has all been a great adventure. While I swim into harbour I will not forget sailing across the turbulent seas of forensic conflicts:' We all Sincerely wish him a long lasting and contented retirement and fulfillment for the remaining projects one so active as Reginald Allfree Smithers no doubt has in mind. The thought of His Honour not swimming out of the harbour again is hard to imagine.
Execution of Search Warrants on Lawyers' Offices
Statement by the President of the Law Council of Australia, Daryl Williams Q.C.
The Law Council of Australia and the Australian Federal Police have agreed on guidelines to be followed in the execution of search warrants at lawyers' offices.
I express appreciation of the assistance given by the Director of Public Prosecutions (Mr. Ian Temby QC) and his officers in facilitating and assisting in the negotiation of the gUidelines.
Under the guidelines, lawyers will be given the opportunity to make claims of legal professional privilege. If they do, the police search team will not inspect any of the documents in question until the validity of the claim has been determined.
The guidelines set out procedures to be followed by both the police and the lawyers.
Legal professional privilege ensures that a person can have communications with his lawyer to obtain legal advice or for the purpose of legal proceedings without those communications being later used against him.
Privilege does not attach to all documents in a lawyer's office. Problems have arisen in practice in ensuring that, while the police must be permitted to execute the warrant, they do not in the process seize or inspect documents which are not the subject of the warrant, or those to which privilege attaches.
The guidelines provide for these matters to be handled in an orderly and informed manner. The effect of the guidelines, in summary, is that the lawyer and the police co-operate in ensuring that the obligations of each can be fulfilled in a sensible way. Where the lawyer follows the gUidelines, no member of the police search team will inspect or seize documents identified as potentially within the warrant until the lawyer has been given an opportunity to claim legal professional privilege in respect of those documents.
It is very desirable that in searches the legal profession and the police should co-operate to the fullest possible extent. The guidelines will contribute to that co-operation, and thereby ensure that privileged documents can be protected from seizure.
7 November 1986
For further information:
Barrie Virtue (062) 47 3788 (0) 81 5558 (H)
General Guidelines between the Commissioner of the Australian Federal Police and the Law Council of Australia as to the Execution of Search Warrants on Lawyers' Premises in Circumstances where a Claim of Legal Professional Privilege is made.
Section 10 of the Crimes Act 1914 provides that a search warrant entitling named persons to enter any house, vessel or place named or described in the warrant and seize anything specified may be granted:-
"If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in any house, vessel, or place -
(a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;
(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offe.nce; or "
Difficulties are sometimes experienced on the rare occasions that it becomes necessary for an AFP officer to obtain and execute a search warrant directed at the office of a solicitor or the chambers of a barrister. In Baker v. Campbell (1983) 153 CLR 52 the question posed in the case stated was:
"In the event that legal professional privilege attaches to and is maintained in respect of documents held by (a lawyer) can those documents be properly made the subject of a search warrant issued under s.lO of the Crimes Act?"
The question was answered "No",
1986
It is seen as desirable that an agreed procedure should be laid down which if followed will negate or reduce the risk of such documents being seized pursuant to section 10 search warrants. Accordingly these general gUidelines have been agreed between the Commissioner of the Australian Federal Police on the one hand and the Law Council of Australia on the other. The latter organisation through its constituent bodies, the Bar Associations and the Law Societies in all of the Australian States and internal Territories, represents the great majority of Australia's practising lawyers. The discussions which led to these guidelines were convened by the Director of Public Prosecutions and representatives of the Office of the D.P.P' have been involved in the discussions.
Although doubts perSist, as the law stands at present legal professional privilege attaches to communications passing between a client and his lawyer if the communications were made for the sole purpose of enabling the client to obtain, or the lawyer to give, legal advice: Grant v. Downs (1976) 135 CLR 674.
In addition, legal professional privilege attaches to documents and things brought into existence for the sole purpose of being used in litigation whether actual or contemplated. Legal professional privilege does not subsist where the communication was made pursuant to, or to facilitate the commission of, a fraud, crime or illegal purpose: AttorneyGeneral for the Northern Territory v. Kearney (1985) 61 ALR 55. Further, the privilege may be waived by the client.
It is agreed that where practicable a search warrant shall only be sought from a magistrate or a legally qualified justice, and after consultation with the Office of the D.P.P.
These guidelines proceed on the assumption that any particular warrant to which they relate has been duly issued and is good on its face. It is recognised that a lawyer upon whose premises the search warrant is to be executed may want to take legal advice as to those matters.
The effect of these guidelines, in summary, is that where the lawyer is prepared to co-operate with the police search team no member of that team will inspect any document identified as potentially within the warrant until the lawyer has been given the opportunity to claim legal professional privilege in respect of any of the documents so identified. Where a claim is made in such circumstances no member of the police search team will inspect any document
the subject of the claim until either (i) the claim is abandoned or waived, or (ii) the claim is dismissed by a court.
(a) Upon attendance at the premises of the lawyer, the officer-in-charge should explain the purposes of the search and invite the lawyer to co-operate with the police in the conduct of the search. If the lawyer himself, or a partner or employee, is suspected of involvement in the commission of the alleged offence the officer should say so. Identification of the senior officer and all other members of the search team should be provided to the lawyer. The search team should be kept to the lowest number of persons reasonably necessary in all the circumstances.
(b) If no lawyer is in attendance at the premises the subject of the search warrant then, if practicable, the premises or relevant part of the premises should be sealed and execution of the warrant deferred for a period which the officer-in-charge in his discretion considers reasonable in all the circumstances to enable any lawyer connected with the premises to attend or, if that is not practicable, to enable arrangements for another person to attend the premises.
(c) The lawyer should be provided with a copy of the search warrant in addition to being shown the original warrant, if production thereof is demanded by him.
(d) A reasonable time should be allowed to the lawyer to enable him to consult with his client(s) and/or to obtain legal advice. For this reason, it is desirable that warrants be executed only during normal working hours. However, when warrants are executed outside normal working hours, allowances should be made for delays should the lawyer wish to contact his client or to take legal advice.
(e) Having informed his client(s) of the position and/or having obtained legal advice, the lawyer should, consistent with his client's instructions, cooperate with the police officers by assisting them in locating all documents which may be within the warrant. If the police officer requires access to the office index systems the lawyer should assist if necessary by explaining the index system to the police officer.
(f) Where the lawyer agrees to assist the search team the procedures set out below should be followed :-
(1) in respect of all documents identified by the lawyer and/or further identified by the police officer as potentially within the warrant, the police officer should, before proceeding to further execute the warrant (by inspection or otherwise) and to seize the documents, give the lawyer the opportunity to claim legal professional privilege in respect of any of those documents If the lawyer asserts a claim of legal professional privilege in relation to any of those documents then he should be prepared to indicate to the police officer the grounds upon which the claim is made and in whose name the claim is made
(2) in respect of those documents which the lawyer claims are subject to legal professional privilege, the search team shall proceed in accordance with the guidelines set out below. [n respect of the remaining documents, the search team may then proceed to complete the execution of the warrant.
(g) All documents which the lawyer claims are subject to legal professional privilege shall be placed by the lawyer and / or his staff in a container under the supervision of the police officer which shall then be sealed. [n the event that the lawyer desires to take photocopies of any of those documents he shall be permitted to do so under the supervision of the police officer and at the expense of the lawyer before they are placed in the container.
(h) A list of the documents shall be prepared by the search team, in co-operation with the lawyer, on which is shown general information as to the nature of the documents.
(i) That list and the container in which the documents have been placed shall then be endorsed to the effect that pursuant to an agreement reached between the lawyer and the search team, and having regard to the claim of legal professional privilege made by the lawyer on behalf of his c1ient(s), the warrant has not been executed in respect of the documents set out in the list but that those documents have been sealed in the container, which documents are to be given forthwith into the custody of the clerk to the magistrate who issued the warrant or other
independent party agreed upon by the lawyer and the officer-in-charge (referred to below as the "third party") pending resolution of the disputed claims.
0) The list and the container in which the documents have been sealed shall then be signed by the police officer and the lawyer.
(k) The police officer and the lawyer shall together deliver the container forthwith, along with a copy of the list of the documents , into the possession of the third party , who shall hold the same pending resolution of the disputed claims.
(I) If within 3 clear working days (or such longer period as may reasonably be agreed by the parties) of the delivery of the documents into the possession of the third party, the lawyer has informed the officer-in-charge or his agent and the third party or his agent that instructions to institute proceedings forthwith to establish the privilege claimed have been received from the client or clients on whose behalf the lawyer asserted the privilege, then no further steps shall be taken in relation to the execution of the warrant until either :-
i) a further period of 1 clear working day (or such further period as may reasonably be agreed) elapses without such proceedings having been instituted ; or
ii) proceedings to establish the privilege have failed ; or
iii) an agreement is reached between the parties as to the disclosure of some or all of the documents subject to the claim of legal professional privilege.
(m)Where proceedings to establish the privilege claimed have been instituted, arrangements shall forthwith be made to deliver the documents held by the third party into the possession of the Registrar of the Court in which the said proceedings have been commenced . The documents shall be held by the Registrar pending the order of the Court.
(n) Where proceedings to establish the privilege claimed are not instituted within 3 clear working days (or such further period as may have been agreed) of the delivery of the documents into the possession of the third party, or where an agreement is reached between the parties as to the disclosure of some or all of the documents,
then the parties shall attend upon the third party and shall advise him as to the happening of those matters and shall request him, by consent, to release into the possession of the police officer all of the documents being held by the third party or, where the parties have agreed that only some of the documents held by him should be released, those documents.
(0) In those cases where the lawyer refuses to give co-operation, the police officer should politely but firmly advise that the search will proceed in any event and that, because the search team is not familiar with his office systems, this may entail a search of all files and documents in his office in order to give full effect to,the authority conferred by the warrant. The lawyer should also be advised that a document will': not be seized if, on inspection, the police officer considers that the document is either not within the warrant or privileged from seizure. The search team should then proceed forthwith, to execute the warrant.
Police Enforcement of Custody Orders
17th October 1986
Mr P.D. Elliott
Joint Editor
Victorian Bar News
Dear Elliott,
I have been asked by the Chief Commissioner of Police to explain to the profession why policemen are sometimes reluctant to enforce custody orders. There are a number of reasons for this:-
(a) Plaintiff's counsel does not ask for an order in terms that will set the police in motion.
(b) The usual custody order does not authorise the police to take the child out of its existing custody.
(c) The usual warrant or writ of habeas corpus does not authorise the police to enter premises.
(d) Clause 1.59 of Police Standing Orders says:"Members shall be careful not to act in matters involving nothing more than civil wrongs such as disputes arising in divorce cases or concerning the custody of children".
(e) Members of the Police Force are not officers of the Supreme Court and they have no general duty to enforce court orders.
(f) Policemen are personally liable for damage caused by their unauthorised acts.
The police will not act to enforce an order of the Supreme Court which merely gives custody of a child to the applicant. To obtain useful co-operation from the police the applicant should obtain a warrant or order which authorises the police to take the child and deliver it to the applicant and for that purpose to enter premises (see Appendix A).
Generally speaking it should not be necessary to involve the police at all. The Sheriff of the Supreme Court has a staff of over 100 officers to assist him in enforcing the process of the court. However he also is entitled to an order which specifically authorises him to take the child (and enter premises for that purpose) (see Appendix B).
Such orders are not likely to be made unless the court is satisfied than an order for custody has been or is likely to be disobeyed.
Yours faithfully,
H.C. BERKELEY Solicitor-General
APPENDIX A
The following warrant was issued on the order of the Chief Justice in re Hodnett: Fyfe v Hodnett No. 14063 of 1979.
To: Sinc:lair Imre Miller, Chief Commissioner of Police and all other members of the Police Force of the State of Victoria, you are hereby authorized that at any time of the day or night to take possession of the child, Dianne Melissa Hodnett born on the 7th day of December, 1975 and deliver her to Sharon Lee Fyfe , being the person entitled to custody pursuant to the Order of the Supreme Court of Victoria made on the 21st day of December, 1979 and for the purpose of the exercise of the foregoing powers to enter any house , bUilding or room where the said child may be or where you have reasonable cause to believe that the said child may be found and for so doing this shall be your sufficient warrant.
APPENDIX B
The following order was made by Mr. Justice Nicholson in re Meehan: Mathews v. Meehan No. M687 of 1985
I do order that
1. A Writ of Habeas Corpus issue directing the Sheriff to forthwith seize the child Markitaa Jay Meehan born the 25th day of July 1981 and to place the said child in the custody of the Applicant Cherie Ann Mathews until further Order.
2. All members of the Police Force of the State of Victoria to whom this order is produced render such assistance to the Applicant and to the Sheriff as may be necessary in order to effect the placement of the said child in the custody of the Applicant as soon as it is practicable to do so.
(It would be useful to add "and for the purpose of the foregoing powers to enter any house, building or room where the said child may be or where there is reasonable cause to believe that the said child may be found".)
Old Times at the Old Bailey
The reminiscences of Sir Henry Hawkins (later Baron Brampton) were published in 1904. They include this vivid picture of the Old Bailey in the first half of the 19th century Excessively long criminal trials were apparently not a problem
It is a vast space to look back over sixty years of labour, and yet there seems hardly a scene or an event of any consequence that is not reproduced in my mind with a vividness that astonishes me .
In my earlier visits to Her Majesty's Courts of Justice my principal business was to study the Queen's Counsel and Serjeants, and they were worthy the attention I bestowed on them. They all belonged to different schools of advocacy, and some knew very little about it.
I went to the Old Bailey, a den of infamy in those times not conceivable now, and I verily believe that no future time will produce its like - at least , I hope not. Its association were enough to strike a chill of horror into you. It was the very cesspool for the offscourings of humanity. I had no taste for criminal practice in those days, except as a means of learning the art of advocacy. In these cases, presided over by a Judge who knows his work, the rules of evidence are strictly observed, and you will learn more in six months of practical advocacy than in ten years elsewhere. The Criminal Court was the best school in which to learn your work of crossexamination and examination-in-chief, while the Courts of Equity were probably the worst. But I shall not dwell on my struggles in connection with the Old Bailey at that early period of my life. What will be more interesting, perhaps, are some curious arrangements which they had for the conduct of business and the entertainment of the Judges .
These are a too much neglected part of our history, and when referred to in reminiscences are generally referred to as matters for jocularity They exercised, however, a serious influence on the minds and feelings of the people, as well as their manners; more so than a hundred subjects with which the historian or the novelist sometimes deals.
In all cases of unusual gravity three Judges sat together. Offences that would now be treated as not even deserving of a day's imprisonment in many
cases were then invariably punished with death . It was not, therefore, so much the nature of the offence as the importance of it in the eyes of the Judges that caused three of them to sit together and try the criminals.
They sat till five o'clock right through, and then went to a sumptuous dinner provided by the Lord Mayor and Aldermen. They drank everybody's health but their own, thoroughly relieved their minds from the horrors of the court, and, having indulged in much festive wit , sometimes at an alderman's expense, and often at their own, returned into court in solemn procession, their gravity undisturbed by anything that had previously taken place, and looking the picture of contentment and virtue
Another dinner was provided by the Sheriffs; this was for the Recorder, Common Serjeant, and others who took their seats when their lordships had arisen.
I ought to mention one important dignitarynamely, the chaplain of Newgate - whose fortunate position gave him the advantage over most persons, for he dined at both these dinners, and assisted in the circulation of the wit from one party to another; so that what my Lord Chief Justice had made the table roar with at five o'clock, the Recorder and the Common Serjeant roared with at six, and were able to retail at their family tables at a later period of the evening. It was in that way so many good things have come down to the present day.
The reverend gentleman alluded to of course attended the court in robes , and his only, but solemn , function was to say 'Amen' when the sentence of death was pronounced by the Judge . It was worth hearing, because it sounded like an air-bubble breaking from his windpipe: a wheezy kind of performance, and worth very little to anybody concerned, still less to the prisoner.
There were curious old stories, too, about my lords and old port at that time which are not of my own reminiscences, and, therefore, I shall do no more than mention them in order to pass on to what I heard and saw myself.
The first thing that struck me in the after-dinner trials was the extreme rapidity with which the proceedings were conducted. As Judges and counsel were exhilarated, the business was proportionately accelerated. But of all the men I had the pleasure of meeting on these occasions, the one who gave me the best idea of rapidity in an after-dinner case was Muirhouse
Let me illustrate it by a trial which I heard Jones was the name of the prisoner. His offence was that of picking pockets , entailing, of course, a punishment corresponding in severity with the barbarity of the times. It was not a plea of 'Guilty', when, perhaps, a little more inquiry might have been necessary: it was a case in which the prisoner solemnly declared he was T-lot guilty,' and therefore had a right to be tried.
The accused having ' held up his hand,' and the jury having solemnly sworn to hearken to the evidence, and 'to well and truly try, and true deliverance make,' etc , the witness for the prosecution climbs into the box, which was like a pulpit, and before he has time to look round and see where the voice comes from, he is examined as follows by the prosecuting counsel:
'I think you were walking up Ludgate Hill on Thursday 25th, about half-past two in the afternoon and suddenly felt a tug at your pocket and missed your handkerchief which the constable now produces Is that it?'
'Yes , Sir.'
'I suppose you have nothing to ask him?' says the Judge . 'Next witness .'
Constable stands up.
'Were you following the prosecutor on the occasion when he was robbed on Ludgate Hill, and did you see the prisoner put his hand into the prosecutor's pocket and take this handkerchief out of it?'
'Yes, sir.'
Judge to prisoner: 'Nothing to say, I suppose?' Then to the jury: ' Gentlemen, I suppose you have no doubt? I have none .'
Jury : 'Guilty , my lord ,' as though to oblige his lordship . Judge to prisoner: 'Jones , we have met beforewe shall not meet again for some time - seven years' transportation - next case .'
Perhaps this case was a high example of expedition, because it was not always that a learned counsel could put his questions so neatly ; but it may be taken that these after-dinner trials did not occupy on the average more than four minutes each .
Flaw-Hunters and Sharpshooters
The Victorian Law Times and Legal Observer was a pungent observer of the legal scene in Victoria in the 1850s. Its motto was "Pro Rege, Lege, Grege" (those members of the Bar with the benefit of a classical education will realise that this had nothing to do with some 19th century namesake of Australia's recent Test Captain).
The editorial of issue No.2 on Saturday, 17th May, 1856, took as its text a report in the previous Tuesday's Herald of unusual events at the City Court as follows:-
'ANOTHER "SCENE" IN THE CITY POLICE COURT
- During the proceedings of the City Court yesterday, a woman was placed at the bar and remanded, when Mr. Fausset, solicitor, applied for permission to communicate with his client, and stated that he had been employed by the woman's husband to defend her. This was objected to by Mr. Boyle, barrister, who also declared that he had been retained in the case. At a subsequent period of the day the prisoner was again brought before the Court, when Messrs. Fausset and Boyle were both in readiness to do battle in her behalf, but the former protested against the appearance of the latter, and Mr. Sturt replied by declaring that he might object to both. Mr. Fausset trusted that the Bench would hear him for a few moments, for it was a matter which affected the profession to which he belonged. The woman herself declared she did not employ Mr. Boyle; her husband had employed him (Mr. F.), and he had been informed that Mr. Boyle had volunteered his services in the case. Mr. Boyle had no hesitation in admitting that he had done so, and would volunteer whenever he thought proper, and his services were required. He was bound by the oath he had taken as a barrister, to render his assistance wherever the liberty of the subject was concerned, and at the same time he should be but too ready to lend his assistance to the Court. Mr Fausset thought the time of the Court ought not to be taken up in such a way, and suggested to his Worship to ask the prisoner who was to appear for her - his reason for addressing the Court at all on the subject was to put a stop to the system of "touting" that prevailed, and the pack of "touters" frequenting the Court. Mr. Boyle was most anxious to suppress any improper doings, and had, without either fee or reward, taken up the case of the woman, because he believed she was an innocent person. Mr. Fausset said this had been done for the purpose of bringing people's names before the public, but he should do all in his power to expose such. He felt bound to state that it was not for the sake of a paltry fee he was contesting, but he should omit no opportunity of exposing such a system. Mr. Sturt asked the prisoner which of the legal gentlemen
was to conduct her case, and she was understood the reply that Mr. Boyle had volunteered his services on the day she was first brought up. Mr. Fausset forthwith withdrew from the case, which was proceeded with in the ordinary manner.'
There then followed a spirited discussion on the question of amalgamation of the profeSSion, an issue was to remain a lively one until the legislation of 1891 (see Giannarelli's Case, Bar News, Spring 1986).
Memories of the Sydney
Bar.
The editor, Richard Clarke Stewell, was a barrister and left the reader in no doubt as to his own thoughts on the subject. He concluded with the following passage from a letter of Sir William A'Beckett written to the Chief Justice of New South Wales in 1847:-
'We are far from insinuating that this degeneracy would arise from the mere fact of attorneys being at liberty to practise as barristers. From the respectable branch of the former profeSSion, the Court would have nothing to fear. Few of these would even take advantage of the privilege, or only on such occasions, and in such a manner, as would leave the Court no reason to desire that the client had been otherwise represented. It is from the pettifoggers, the tricksters and hucksters, the flawhunters and sharpshooters, the bloodsuckers of costs, the fruits of their own chicane or the errors of others, the pert and pragmatical charlatans - it is from these, the cunning, unprincipled, conceited, shallow, noisy portion of the profession, that the Court would suffer, and by whom the administration of justice would be degraded'.
Go For It! Lawyer Cricketers in the Caribbean
'Down de way wh ere d e nights are g ay' as Harr y B ella/onte u sed to si ng. w i t h Bill Gillard Q.C.
The tour of the West Indies by a Lawyers' cricket team was the subject of planning for some two years. However, when the team was to leave our shores , it numbered only five . Fortunately the numbers increased to 12 by the end of the tour. The tour leader, Bill Gillard, wished to cancel the first part of the tour to Trinidad and Tobago. However, the magnificent five said they wanted to go, and how could one refuse them when our hosts telegrammed the following:-
"Happy to have you, full te am or not. In the circumstances two limited over games arranged. Suggest you recruit Border, Ulle e, Thomson to boost chances Smile and have a pleasant flight."
The first contingent comprised Ross Middleton and Geoff Chancellor (ViC. Bar); Stirling Hamman and Peter Maiden (NSW Bar); and Philip Wotton (Sydney Phillips Fox). They arrived in Trinidad on the 17th August and were literally rushed off their feet by the hospitality of our hosts. The playing of cricket matches was .complicated not only by lack of numbers, but it was the football season in Trinidad even though it was summer; the wet end of summer. Nevertheless the severely depleted side managed to partake in two games. The first was a form of cricket called "Windball". This was played at the University of West Indies in Trinidad against the Lawyers. The game was played on concrete with a wet tennis ball would could be bowled or thrown off the pitch with some speed. According to the official score book, the game was a tie. The hero was Philip Wotton who made 90 retired (retired by the order of Ross Middleton, acting captain, who did not want to see a NSW man make a ton). Phil Wotton has played grade cricket in Sydney, but his performances thereafter on the cricket field belied that fact.
However he will tell you, if asked, that his performances elsewhere on the trip were far more rewarding and satisfying! The second game was against the Police of the Island of Tobago. The local side were much too strong. The touring side, assisted by some local Lawyers, managed only 79 and the opposition passed them with only five down.
The tone for the tour was set by a comment made by an attractive young lady who was partnering Geoff Chancellor in a game of tennis. She was number two seed in Tobago and a young lady of considerable ability. Geoff Chancellor missed an overhead smash and apologised to her saying that he should not have gone for the shot. She replied: "Life is for living, man. So go for it."
The tourists moved on to the lovely Island of Barbados arriving on Saturday the 23rd August. The team was strengthened by the arrival of Bill Gillard, Thos. Hodgson (NSW Bar), Stephen Lamond (Solicitor from Goulburn) and the tour leader's son, Richard Gillard , who is presently working in England.
Barbados is a lovely Island and the team soon settled in very well to the delights the Island offered. The Carlisle Club was the place to go at night, with a little of the local rum coursing through the veins, to dance in the open air to the magnificent Calypso music. One of the big hits in Barbados at the time was a song called "The List". It was a Calypso song telling the story of a man who was dying from AIDS who had prepared a list of all those with whom he had had relations, to be published on his death. The chorus of the song is: "This is de list of de men who have de AIDS " . The song refers to interesting people being on the list, including "doctors, lawyers, cricketers, and politicians". Perhaps the most amusing line of the whole song is: "Even de married women insist upon seeing de list of de men who've got de AIDS".
The first game was against the Barbados Lawyers XI played at the Carlton Club. The day dawned clear and hot and we arrived at the ground in splendid sunshine . The wicket was rock hard and clearly full of runs. However before we CS::JUld commence, the clouds came over and down came the rain . It rained solidly for an hour and then stopped By this time the wicket had become soft. Because of the lack of time the game was reduced to 21 overs each.
The Barbadian Lawyers batted first and made 3/113 . Geoff Chancellor was the pick of the bowlers taking 3/12. Ross Middleton's advanCing age and tummy line was all too much for his legs, and in his fifth over, he managed to pull one hamstring and completed the double when chaSing a ball some overs later.
One of the Barbadian Lawyers, Steven Farmer, had played with Barbados and was a man of considerable ability He hit an unconquered 68. We set about our task to make the runs, but qUickly got into trouble. At 5/58, things looked bleak as Bill Gillard joined Winston Best, a local accountant who became an honorary Australian lawyer for the day. Gillard, who is slightly older than Ross Middleton, does have a legitimate excuse for his "dicky" hamstrings As he went out to bat, his partner said: "the only hope we've got of winning this game is to go for quick singles". Twenty years ago that would have been an excellent idea, but on a hot moist day in Barbados, it did not have much appeal for Bill Gillard However he and Best took the score to 86 before Best was out for 22.
Thereafter, Hodgson and Gillard took the score to 103 before Hodgson was out. Middleton came in with a runner There were 10 runs to make in about as many balls. On the second last ball, Middleton stroked the ball and Gillard, in attempting to make the second run which would have meant a tie, was run out by at least half the length of the pitch His legs had not seized, but his hips had seized due to the excessive use of the hips during the course of dancing the previous day on an excursion on a ship called "The Jolly Roger".
Sidney Christian, Bill Gillard & Colin Derrick
The last man in, Stephen Lamond, is, to say the least, a rather large man who does not move all that quickly There was one ball to go, two runs to win Steve was told, the minute the ball leaves the hand, run - which he did as Ross Moddleton managed to snick the ball into his pads and Steve, despite his bulk and lack of speed, made it, thereby turning the game into a tie. Bill Gillard top scored with 26, and Peter Maiden and Stirling Hamman each made 17. All round it was a great game and everybody enjoyed themselves despite the very wet conditions. Our success was much appreciated by a group of some 10 Americans who came to support us .
The next game was against the Police of Barbados They won the toss and batted first and made 8 / 168 in 34 overs. The Police team is a top grade side in Barbados. Their team was a mixture of their first, seconds and thirds. On this occasion not only were we assisted by Winston Best, but also Norman Holder, the cousin of Vanburn Holder who played Test cricket. Norman is a slim edition of Joel Garner, but not quite as fast. The star bowler was Thos. Hodgson who took 3/21. Unfortunately, we found the task of chasing the runs too much and made 8 / 115 in the 34 overs . Stirling Hamman made 24 . The stay in Barbados was completed by a very pleasant day at the local races where the members of the team were well looked after by the local Lawyers.
We then set out for Antiqua on Sunday 31st August. We proceeded to Antigua with some trepidation because despite having sent many letters to contacts on that Island, we received no response. We were unsure of the reason for this , but suspected there were no typewriters or alternatively, no postal facilities
As things turned out, our fears were completely unfounded. They do have postal services there and they do have typewriters and they have two delightful Lawyers in Sidney Christian (Mr. Antigua himself) and Colin Derrick. We arrived at the airport to be met by these two gentlemen who thereafter were wonderful hosts during the five days we were in Antigua.
Antigua is a lovely Island with some very pleasant beach resorts We stayed at the Anchorage Hotel which was located in beautiful gardens on a very nice beach.
Geoff Evans from the N.S.W. Bar joined our team. Our first game was against the Police of Antigua and on this occasion we batted first. In 35 overs we only managed to score 90. Richard Gillard top scored with 22. The captain managed to get second top score , but was run out yet again. The Police struggled to make the runs, and indeed were 8 down for 90 when they passed us. The highlight was the wicket taken by Stephen Lamond Stephen would not be described as the best bowler to ever try to bowl a legbreak.
The man who top scored got to 33 and was presented by Stephen with a full-toss outside the offstump, which he hit with considerable power to Gillard who was lurking in the covers (to this day, he is unsure why he was there) and the leader managed to take a sharp catch, much to the surprise
SUMMER 1986
of all, including himself. This was too much for Stephen who then bounded (perhaps loped or stumbled) to chase Gillard with the express object of no doubt hugging him in Richie Benaud style. This was too much for Gillard who was last seen moving with unusual speed towards the cover boundary, much to the delight of all the locals.
The next game was against the Antiguan Lawyers. They batted first and made 96. The pick of the bowlers were Stirling Hamman who took 2/8 and Richard Gillard who took 2/17. We managed to pass the score in 22 overs with 5 down. Richard Gillard was run out for 30 and Stirling Hamman made 23. Ross Middleton, despite sore hamstrings, managed an unconquered 15. We all thoroughly enjoyed our stay in Antigua and were sad to say goodbye to Sidney Christian and Colin Derrick who had been such wonderful hosts.
We travelled to Kingston, Jamaica where Bruce Collins of the N.S.W. Bar joined us. On Saturday the 6th September, we played the Jamaican Lawyers at Sabina Park, Kingston. The game was arranged by the President of the West Indies Board of Control, Alan Rae, who is a Lawyer and who opened the batting for the West Indies in Australia in the early 1950's. Sabina Park looked an absolute picture. The wicket was excellent, the outfield was very green and we had an appreciative gathering of about 200 to watch us. The umpires were Test umpires.
Prior to the game, the Chief Justice of Jamaica, Mr. Justice Zacca, was introduced to the players. We won the toss and batted. We managed to make 9/165 in 42 overs. Richard Gillard made 43, Ross Middleton 25 and Geoff Chancellor 24. The pick of the bowlers on the other side was one Dan O'R. Kelly, the black Irishman. He took 5/26.
After a pleasant sit-down lunch, during which we were welcomed by the President of the Court of Appeal, we set out to take on the Jamaicans. The innings commenced at 2.44 and by 3.14 the opposition were 6/18, and within minutes, were 7/21. The main destroyer was Geoff Chancellor who, off 4 overs, had 4/6. At the other end, Stirling Hamman had 3/10. It became fairly clear that unless something was done, the game would be all over by 3.30, much to the disappointment of the crowd who at that stage were feeling the effects of a few rum punches. In order to put a little more batting life into the game, the two star bowlers were taken off and Hodgson, Wotton and Lamond were all given a go.
The captain of the Jamaican Lawyers, one Jeffrey Mordecai, a Rhodes scholar and a man who, in his early 20's, vied with Jeffrey Dujon for the wicketkeeping position with the Jamaican side, got underway and ended up making 73 not out. Eventually, the Jamaican Lawyers were all out for 109, and a good day was had by all. After the game, and a few rum punches, Jeffrey Mordecai threw down the challenge for the official game at the Conference.
The 'man of the match' was the black Irishman, Dan O'R. Kelly, who was presented with a cricket hat with the Australian Lawyers' touring badge on it. Thereafter, the evening was all Dan Kelly's. A few of us can remember getting to bed that night, although some younger members of the side were entertained by the contestants in the Miss Jamaica contest which took place that evening.
The following day, a very happy band of Australian Lawyers travelled by bus to Ocho Rios where the Law Conference was to take place. For two hours we drove over the beautiful Blue Mountains which run across the Island of Jamaica to the sounds of Calypso and the taste of rum. We stayed in Ocho Rios at the Sans Souci Hotel, which would have to be one of the most beautiful hotels in the world.
The Conference commenced on Sunday the 7th September. We played the official cricket match on Wednesday the 10th September at the Kaiser Bauxite Sports Club Ground, half way between Ocho Rios and Montego Bay. David Ashley joined the team for the day, as sickness and defection by one N.sW. member depleted the numbers. Andrew Luckhurst-Smith, an Adelaide Lawyer, also played for the official Australian Lawyers' team.
Australian & Antiguan lawyers
Meeting the Chief Justice of Jamaica
Mr. Justice Zacca before game vs Jamaican lawyers
Again, we had to contend with rain part way through the game. The wicket was a bright red clay and as hard as concrete The West Indian Lawyers won the toss and sent us in. Bruce Collins made a brilliant 98 not out , and we were 3 / 199 at compulsory closure after 30 overs . Bruce Middleton made 16 despite feeling a little queasy due to excess of rum and night life, and Stirling Hamman was run out for 52. During lunch the rains came and the wicket became somewhat wet and the outfield extremely wet. This time we struggled.
Bad light stopped play after we had bowled 25 overs at which stage the opposition were 8/149. claimed a victory on a count-back. The pick of the bowlers were Stirling Hamman who took 2 / 25 and Bruce Collins who took 2/45. Philip Wotton finished on a good note, actually achieving something on the field at last; he took 2/40. It was extremely trying playing in the wet conditions and in fading light. The catch of the series was taken by Middleton at longon who, in fading light, took a catch above his head in true Aussie Rules style which would have made the great Van Der Haar very happy if he had taken it. As somebody remarked, Ross Middleton intercepted the ball before it struck the dart board at the back of the paVilion
Wanted: Cricketer Barristers
Barristers have been playing cricket in Bar teams since the turn of the century. There has been an annual cricket match against the Solicitors for many years . The Bar's first success against the Solicitors was in 1967 We have managed to defeat them twice since then
It is a sad reflection on the cricketing prowess of this Bar, that the mainstays of the bar team have been playing in the team for the past 15 years and upwards . The same men play each year and a number are somewhat long in the teeth One cannot complain they happen also to be the selectors They are the best we have, although getting ancient.
Where are all the young talented Banister-cricketers? The selectors would like to
be relegated to the Second XI.
If you are young, talented and want to represent the Bar in the annual game against the -Solicitors in Christmas week, please contact Bill Gillard, Q.c. (Clerk OJ, Darryl Wraith (Clerk S) or Chris Connor (Clerk S), and supply them with details of experience Please note, we are not interested in Australian Test cricketers, they do not appear to be up to it.
E.W.G.
Bar Hockey
The annual campaign of the Victorian Bar Hockey Team commenced on 23rd October with our warmup match against R.M.I.T. at the Astroturf.
The Bar played a splendid brand of hockey in the first half, jumping to a sensational 5-0 lead at halftime. Another goal in the first minute of the second half and we realized that things were getting out of hand. So we deliberately slackened off and let R.M.I.T. come'back to draw 6-6 with a goal in the last second. It was a fair result and an exciting match.
Our thanks to R.M.I.T. for the game.
Next week, we faced the mighty Law Institute, who, after our now legendary win in the inaugural match in 1984, beat us in nasty and convincing fashion last year.
David Beach (far right of frame) with ball, Meryl Sexton (centre of frame), Ian Dallas (behind Meryl), Peter Burke (far background.)
They started the match in ominous style, and at 0-2 down soon after the start, we looked to be in terrible trouble. However, we recovered with two quick, and somewhat surprising goals, and from that time played with more confidence. Still, though only 3-4 down at half-time, we seemed to be rather under-person ned against a very skilful solicitors' combination, and expected the worst in the second half.
We were wrong. We started the half with a brilliant solo goal from Dallas. The moves of Balfe to the much sought-after kicking position and Brear to centre-forward paid off, and with only a few minutes to play, we were still equal at 4-4. The unthinkable seemed a distinct possibility.
Unfortunately, the solicitors scored two outrageously lucky goals against the run of the play, and we lost 4-6.
Ian Dallas - heading for the ball, with Rupert Balfe (centre of frame) and John Coldrey (behind Rupert). We then retired to Naughton's to discuss the match. We decided that we had done pretty well. We also decided that it was most unfortunate that the Law Institute, in the enviable position of being able to call upon the huge body of solicitors throughout Victoria, was unable to find a spot in its team for even one female hockey player. We selected two women, and they were, as expected, amongst our best. Thanks are due to Richard Brear and Andrew Tulloch, without whom the Bar-Law Institute match would not get off the ground each year. Thanks also to Nigel Bowering (Monash University) and Ganason for umpiring the game.
Standing (Left to Right): David Beach, Peter Burke, Meryl Sexton, Zanda Seng Hpa, Ganasan Narianasamy (V.HUA. Umpire), Peter O'Dea, David Robertson, Ken Sparkes, Andrew Tinney.
Front (Left to Right): Rupert Balfe (Q.C.), John Coldrey (Q.C., D.P'P.), Ian Dallas, Richard Brear.
The players who represented the Bar with pride in one or other or both of the games, were, minus titles: Balfe, Beach, Bowering, Brear, Bryson, Burke, Byrne (R.M.I.T.), Coldrey, Dallas, Ganason, O'Day, Robertson, Senghpa, Sexton, Sparks, Tinney. ANDREW TINNEY
Oops -
Red Faces at Fitzsimmons
The Victorian Bar has witnessed the emergence from its bulging ranks of a number of working men's clubs. A classic example is Sir Lunchalot's Friday afternoon meetings at the Flower Drum, attended by most of the Worker's Compo lads and presided over with his usual condescension by Gilbert Lau.
Another clearly defined group is the "Tall Girls' Club". Its members are often found in public bars. They drink beer. They drink lots of it. It seems Zahara is their champion. Large, in both stature and capacity, the "Tall Girls' " is a democratic body with no obvious hierarchy -a round table philosophy for a group which, oddly enough , "prefers to stand".
Occasionally, in order to recognize an event of legal significance, such as a "No" obtained for the Plaintiff by one of its number, the Tall Girls ' meets after work at the Essoign Club Keenan, Ross, Adams (Arthur, not the other one) and club mascot Macleod swap running-down stories whilst mourning the loss of former member Howden, whose appointment I'm told left a large hole in their ranks Aspiring replacements would need to be well over six feet tall, practice in personal injury, drink beer in quantity and have no current judicial aspirations.
Then, of course , there is my theme for today - the "Red Faces Club". Preaching the virtues of gastronomical self-indulgence, its tribal customs are as different from the Tall Girls' as its philosophy -
never seen in public bars, drinking gin and tonic, scotch and soda behind closed doors, and swapping scurrilous rumours concerning pending appointments to the Bench. Prominent counsel eye the "Red Faces" with suspicious {"what are they saying about me?"} and just a little envy ("How do they do it? Lunch, conference, back to lunch/ dinner?).
Membership is relatively secret, but the club boasts the Solicitor-General (Patron), Meldrum (Food Master) , Dowling (Wine Master) and Campbell (Sergeant-at-Arms) . Last year's MVP. was Black, and there are cameo appearances by Monteith (subject to a medical examination) and two judges they refer to respectively as "Nick" and "Howard"
Recently, I was fortUitously granted the opportunity to examine the club's tribal customs at first hand. Finding myself in Campbell's chambers C 12 45 p m led to an unexpected and somewhat unenthusiastic invitation to lunch with the " Red Faces" at Fitzsimmons, a favourite haven of many at the Bar.
Before describing the ritual which took place , let me tell you a little about Fitzsimmons. Frieda and Sacha formerly ran a delightfully named luncheon restaurant at Bairnsdale, the "E-Tree". Two of the County Court's finest , Judges Spence and Lazarus, urged the move to Melbourne, promising instant success in the culinary desert known as Lonsdale Street West.
Situated in a SUitably trendy two storey opposite Tait Chambers (as it once was), Fitzsimmons opened its doors five years ago The prognostications of the aforesaid two legal luminaries proved (for once) remarkably accurate The restaurant was an immediate success, with Frieda in the kitchen and Sacha preparing the desserts as well as looking after the front of the house Word spread like a coffee ' Iounge rumour through ODe.
Today as always, the starched napery, elegant tableware and attractive decor command instant respect. The menu is immaginative, yet relatively simple . Five entrees, five mains, three or four desserts and imported cheese coming neither from the fridge nor the microwave .
Each dish is prepared on the spot, using the freshest ingredients . The plate doesn't creak with 57 varieties yet nouvelle cuisine is not pandered to. Customers eat well without staggering out feeling like Billy Bunter after a midnight nosh-up in the dorm which brings me back to the "Red Faces".
Sacha greeted us warily as the usual overwhelming quantity of liquor was lugged in . Dowling made the heaviest contribution -a six-pack of mixed reds on special at Nicks "Something to keep the conversation flowing", he informed me. Meldrum, with merely a hint of smugness, removed from somewhere on his person an unclassified but thoroughly acceptable '78 Ch. D'Angludet and one of those Barsacs you keep drinking after dessert. The table (and Sacha) groaned as the bottles kept coming . A Seppelts OlorosoI hadn't seen sherry for ages! Finally a tawny port and two Hungerford Hill whites Campbell purlOined from the Essoign Club .
Once seated at the circular table reserved for these solemn occasions, Meldrum, who seemed to know the menu by heart, launched into a spirited eulogy about one of the entrees - the Mille Feuille of Fresh prawns with a Lightly Curried Cream Sauce. Meanwhile, Dowling warmed to the oloroso, Campbell slipped into the semillon/sauvignon blanc and I, clearly an intruder, eyed my still empty glass hopefully Just after my prayers were answered, Hartog scurried in , interrupting my scholarly assessment of Hunter whites with a joke of impeccable bad taste.
Although I was told the menu changes monthly, when Sacha took our orders , Meldrum ignored the carte and simply requested all five entrees and main courses. "Five of us, five of them," he explained. Halfway through my mandatory, but exquisite, Asparagus and Egg Salad served with a Vegetable Mousse, I became aware of one of their most unusual tribal customs . Meldrum's hand was on my plate! "Just visiting, old chap" he beamed . Attempting to participate in this charming tradition of goodwill, I reached for a piece of Campbell's Marinated Pink Salmon served with an Apple and Toasted Sesame Salad. This was a mistake! Campbell's fork became embedded in the back of my hand! Having learnt that I indeed had a lot to learn, I decided to await the arrival of my main course.
The repast proceeded apace The whites , sherry and a couple of Dowling's half dozen were quickly disposed of. Meldrum poured the Ch. D'Angludet sparingly and I tucked into my slices of Peppered and Boned Rack of Lamb. Minted Soubise and Poached Spring Onions. With my left arm draped around the plate, and thus restricted to using a fork, I was doing fairly well until momentarily distracted by what can only be described as "the Dowling laugh ", I glanced down to find Meldrum's plate was now where mine
VICTORIAN BAR NEWS 50
formerly resided . It was empty. So was my glass. And so, most regrettably, was the bottle of Ch D'Angludet.
But please, dear reader, do not misunderstand the "Red Faces". As the afternoon gathered speed, the spirit of conviViality increased proportionately. By the time the cheese arrived, we were all laughing at Hartog's jokes and Dowling was laughing at practically everything. A perfectly runny French Brie, more red, some Pecan Bourbon Whisky Pie with King Island Cream (which I managed to consume unassisted - at least , I think I was unassisted) Barsac, more red, coffee and port, more red, port and coffee . What a great bunch of blokes! What cameraderie! "By the way, what's the time?" "Ten past bloody four! I've got a conference at 4.30!" "Fake it, dear boy", they chorussed Some advice from the experts and it was time to go
As usual , Dowling sorted out the bill . Awfully decent of him I was in no condition to handle money
Fitzsimmons opens at noon, Monday to Friday. Private dinners can be arranged . There is an excellent courtyard for Melbourne's finer days (if you can fluke one!) and a bistro at the back serving an entree and main plus coffee for $15!! Incidentally, even Eric Page would approve the coffee.
Our bill , enlarged by cheese and desserts, came to $160 for five , plus drinks. With drinks, I'd say about $500 . But then , not everybody does it like the "Red Faces ". I wonder if they 'd invite me back ...
COLIN WVITT
Katsouras v. Capuana
Coram Judge Cullity and a jury of four 19th September 1986
Mr. Ruskin :
His Honour :
Mr. Ruskin:
Would your Honour direct the jury not to include any amount for costs in its award of damages, because ?
(Looking wistfully out the window)
No -I won't do that. My own experience over many years and my knowledge of what most good judges have done over the years, leads me to think I should not give such a direction; in any event, juries never concern themselves about costs.
Yes, your Honour.
The jury retired at 3 p.m. At 3.07 p.m. the jury returned with a question.
"Your Honour we're very worried about a matter. What do we do about the question of costs?"
alleged that she contracted terminal cancer from smoking the defendant's cigarettes:
"Dear Sirs,
Re: American Cigarette Co. (Overseas) Ltd. & Anor. atSo Scanlon
We refer to the Firstnamed Defendant's Interrogatories for the examination of the Plaintiff and advise that there is a typographical error in the Interrogatories numbered 428 and 429 In both Interrogatories the reference to Mrs. Ward sould be read as a reference to Mrs Wood
We apologise for any inconvenience this may have caused.
Yours faithfully ; '
Frost & ADor. v. Mellor & ADor.
Coram Gobbo J 20th November 1986
Mr. Ruskin :
His Honour :
I think your Honour owes me a bottle of Beaujolais.
Done.
Letter from defendant's solicitors to plaintiff's solicitors in American Cigarette Co. (Overseas) Ltd. ats. Scanlon a claim by a plaintiff who
Counsel for the plaintiff was seeking leave to discontinue instead of having the action dismissed His Honour, somewhat troubled by the width of the discretion, sought to test the matter by posing a hypothesis to plaintiff's counsel.
His Honour:
J. Hammond :
What would have happened if you simply hadn't turned up?
At the very least my brief fee would have been in jeopardy.
17th September 1986
Frankston MC
Coram Gillman SM
It is the monthly "drunks" day and in attendance are at least 20 of the Force's finest and a few defendants. Those who have pleaded:guilty are asked to step forward and give the reason for their inebriated state on their respective dates in question. The first explains that he had over'celebrated his 21st. He is duly convicted and discharged. The second explains: "My wife had just had her vasectomy done and we were celebrating". Muffled sounds from the Bench which were entered in the Court Register as "Convicted and Discttarged".
Captain's' Cryptic No. 57
CLUES
Across
1. Thrown away (6)
4. What agents provocateurs do (6)
7. Uluru (5, 4)
9. Greek Tittle (4)
10. He knows, this Scot (4)
12. Prophets (5)
13. A case of fictitious discovery (6)
ANZ Banking Group Ltd. & On v. Donovan & Anor.
Coram Murray McGarvie and Southwell J.J. 19th November 1986
Southwell J. stated that one of the parties was an old friend and that therefore he could not sit on the appeal.
Murray J: I don't want to suggest we were scraping the bottom of the barrel but it was difficult enough to constitute this court in the first place.
14. Some fees are not difficult (6)
15. Inclined (6)
17. Transmogrify (6)
19. Dextrous virtue (5)
20. Sounds like Supremo Bill is in the Family way (3, 1)
22 . A riot that failed (4)
23 Final address (9)
24 Rested or arrested (6)
25 Unionist Soldier (6)
Down
1. Statesman in the law (6)
2. Tomato sauce for a chinaman (4)
3. Corporate matrimony (6)
4. Mistakes (6)
5. A pointed change of direction (4)
6. This judge needs some body building (6)
7. Representatives, especially in the superior common law courts before 1873 (9)
8. Berger Paints, keep on ... (7, 2)
11. Cut, with a blue pencil (5)
12. Vision (5)
15. Self-helpers (6)
16. Not so bright (6)
17. This great pleader could sound angry (6)
18. Dead man's property (6)
21. These are the country (4)
22. Sorrel coloured horse (4)
Words
Some words on words fro m Ken Hayne QC
Of course words are the barrister's tools of trade. Some use the tools better than others but we all tend to use five words when one would do the job twice as well . We can all dash off and look up dictionaries of quotation and spout the result as if we wrote it. Some of us are "all words and no performance"
We all know what Humpty Dumpty said to Alice about words in "Through the Looking Glass " and if we look it up we see that Humpty Dumpty's scornful retort "when I use a word, it means just what I choose it to mean - neither more nor less" was made in answer to Alice's objective "but 'glory' doesn't mean 'a nice knock down argument' ". Obviously Alice did not understand practice at the bar.
Judgments speak of the denotation and the connotation of words and send us all rushing to our dictionaries - Oxford if we are conservative , Macquarie if we want to show we truly are a nation . Gallons (or if gallons are now unlawful, litres) of judicial and academic ink is spilled on the subject of what parliament (or even "the Parliament") has meant in its innumerable outpourings. Of course we all reserve our harshest criticisms for the draftsman of the Act with which we are dealing at the time and we tend to think that the problems are peculiar to that legislature. That the problem extends to the United Kingdom can be demonstrated easily. In the preface to his last edition of Dicey and Morris on Conflict of Laws Dr. J.H.c. Morris said "if we refer our readers to reported cases, we can assume that they will understand what they read; but no such assumption can be made about modern acts of parliament." How true!
All of this leads many people to say "something should be done". (Afferbeck Lauder would have had it that the great "Aorta" should do something"Aorta do sunning abahtit".) Plain English is now put forward as the answer to all these problems. So long as plain English is preceded by clear thinking, a lot of problems will be solved, but not all of them .
Plain English or no, some things will never change . Thus the judicial compliment in the reasons for judgment will always be as much a kiss of death as
anything Mr Richards ever wrote in The Sun News Pictorial. Sometimes one wonders what the compliment really means. Does the statement that an argument was "interesting and ingenious" mean that counsel "almost succeeded in proving black is white"? Is a "learned and erudite argument" one that "referred to the Year Books, was utterly unintelligible but sounded not too bad"?
"I now seek leave, your Honour, to treat the witness as hostile."
Will estimates of duration ever change? A "short point" means in the Magistrates' Court five minutes, but quarter of an hour in County Court chambers. In the Practice Court it means that counsel gives an estimate of half an hour but in fact it will take four days; in the Full Court it means a day but in the High Court it means the special leave application in a case that took 75 sitting days at first instance.
What is "the real point" of a case? In the Magistrates' Court it is the point ignored by the prosecuting sergeant. In the County Court it is the point that your opponent forgot. In the Supreme Court it is the point that the judge raises during addresses. In the High Court it is the point that was not raised at any stage in argument below whether in the Full Court or at first instance.
These things may not change . Our language may be "de-sexed", turned into "plain English" or even made "caring, sharing and relevant". Rape may become "sexual assault - category one"; murder may become just an "assault with terminal consequences". But perhaps "last year's words belong to last year 's language and next year's words await another voice".
SUMMER 1986
Lawyers Bookshelf
High Court in 1965, (she was the first woman to sit on that Bench) and prior to her retirement she chaired "the harmonious and happy Committee" which produced the Abortion Act Report. It is surprising there is no entry under "Happiness" in the index.
Hear The Other Side
By Dame Elizabeth Lane Butterworths, 1986, $39.00
In a preface explaining her choice of a Latin Legal maxim as the title of her autobiography, Dame Elizabeth Lane offers "the inside story of my background and life before, and after, somewhat belatedly, I became a member of the Bar and later of the previously masculine Judiciary of England". If this account is a genuine "inside story" Dame Elizabeth's personal and professional life has been one largely untroubled by doubt, regret or resentment, let alone anger, fear or failure. The only ignoble emotion confessed is a reference to "unjustifiable pique" when she was not granted silk on her first application in 1958; the only admission of strong personal emotion the sorrow expressed over the death at 14 of her only son.
Perhaps Dame Elizabeth is, indeed, very lucky. She was born in 1905, called to the Bar in 1940, and retired from the High Court in 1979; looking back she uses the adjective happy to describe every phase of her life. Her childhood was happy, she was a "very happy member of the junior Bar", "proud and happy" to be silk, knew she would "miss the happy life in Chambers" on being appointed to the County Court in 1962 but, predictably "found life in the County Court happy and rewarding". More happiness was found on her appointment to the
As well as happy and lucky, Dame Elizabeth is conservative in upbringing, temperament and philosophy. She describes herself as being born in a stable Edwardian era with settled values to an upper middle class family, and the values she espouses in this book come straight from that era. When she was born Marx was dead and Freud was almost 50 but her world was and remained largely uninfluenced by them. In a chapter on social change she notes "One of the saddest changes which I have witnessed is the lowering of the standard of (sexual) behaviour in such large numbers of the population"; in a paragraph on Violence Today writes "I believe that the lack of Christian belief is the main cause. So many parents nowadays are devoid of such belief, in consequence their own conduct suffers and even more so does that of their children". At home, a resident housekeeper presided, taking the phone call from the Lord Chancellor offering her the High Court appointment ("I went out in the morning and bought myself a new hat. When I came home for lunch my housekeeper said ..."), and attending to all domestic matters ("It was a luxury (having taken silk) during term time to be able to shop at leisure ... Buying food was not one of my tasks because we always had a resident housekeeper, but there were all important matters like a new hat requiring attention").
If her account is accurate, Dame Elizabeth has never questioned the relevance and application of these Edwardian values. The system is good, government knows what is best; those who disagree with it (and the author) have "stupid heads" and are generally activated by "spite and destructiveness". And even where dissidents are sincere and well meaning (as is conceded to be the case with some (but only some) of the members of the CN.D.) "why should they consider themselves wiser than their government in the matter of national defence?". Dame Elizabeth would forbid by law foetal research and public service strikes; she disapproves of A.I.D. by donor (although "artificial insemination of domestic animals appears to me to be entirely acceptable"), animal liberation and barristers who, out of court, do not give "the courtesy due to a judge". All these views are stated as self-evident, never discussed.
Scattered through the book are legal anecdotes mainly illustrative, occasionally funny. There are also
snippets of basic legal information, such as the function of a jury and the relevance of alibi evidence . My favourite, and one worthy of the 13th floor of Owen Dixon Chambers, is the "Tipperary alibi"calling witnesses to swear that at the material time not only was the defendant somewhere other than at the scene of the crime but so were all the prosecution witnesses!
If one reads between the lines one can assume that Dame Elizabeth was a competent advocate , a successful silk , and a conscientious and intelligent judge, but this banal chronological account of milestones achieved proVides no insights , offers no lessons. I very much hope that it does not do the author justice. There is, no doubt , as the title suggests, another side to be heard, but you will not hear it in this bland and lacklustre autobiography.
SALLY BROWN
ABC Guide to the Federal Court of Australia
By Matthew Smith 1986, Law Book Company Limited, pp i-230
Although the Federal Court began sitting in 1977, its jurisdiction and procedures are still unfamiliar to many lawyers . The Law Book Company has released a new book by Matthew Smith of the New South Wales Bar, which will assist those who are stepping inside the ivy-covered facade in Little Bourke Street for the first time
The book comprises some 150 separate entries , alphabetically arranged . Approximately half are concise summaries of the provisions of the various Commonwealth Acts vesting jurisdiction in the Court . These adequately cover the four main sources of the Court's work (the Trade Practices Act 1974, the Administrative Decisions (Judicial Review) Act 1977, the Bankruptcy Act 1966 , and the Conciliation and Arbitration Act 1904, as well as dealing briefly with more obscure legislation, such as the Loan (Drought Bonds) Act 1969 and the Advance Australia Logo Protection Act 1984) .
The remainder of the book summarises the operation of the Federal Court Act and Court Rules under general headings such as Contempt, EVidence, Injunctions , Motions and Pleadings.
The author acknowledges that the book is really designed to provide "quick answers", and that its
main use will be as a "comprehensive index" to point interested parties in a general direction before undertaking more detailed research. To that extent it may be useful to practitioners and laypeople who do not have a detailed knowledge of the Court , and who do not need to gain such a knowledge. However, it is more difficult to see the book being of particular value to the barrister who appears in the jurisdiction and who will require a greater depth of information than this work can proVide The book is certainly not a replacement for the two Practice Services on the Federal Court , Camilleri and the CCH High and Federal Court Practice , although it may be a useful supplement to those works.
A word of caution. Both the jurisdiction and the rules of practice of the Court continue to grow rapidly. Although the book is up to date as at January 1986, there are a number of matters that are already inaccurate, or need supplementing For example, the setting-down procedures , in Melbourne at least, are now done by way of call-over conducted before a Judge , and not by the Registrar ; and the requirement of leave to interrogate has been introduced (0. 16 r. 1).
In addition , important decisions affecting the Court's powers and procedure are handed down with startling fequency. The inherent jurisdiction of the Court and the power to grant Mareva type orders (Jackson v Sterling Industries Ltd. , 15.10 .86), and compensatory orders under s . 87 (IA) of the Trade Practices Act (Sent v Jet Corporation of Australia (1986) 66 ALR 73) are two such cases that come to mind .
Whilst in no way a criticism of the author, this simply underlines the advantage of the loose-leaf practice services in this area
I would also express some reservation with the author's treatment of the matters necessary to be proved to obtain an interlocutory injunction . At p . 134 he states that the first test to be applied "is whether the applicant has made out a prima facie case" which "has also been phrased as whether there is a serious question to be tried ". Whilst Dawson J in A v Hayden (No.1) (1984) 56 ALR 73 has attempted to reconcile the apparent conflict in the phraseology commented on by Gibbs CJ in the Australian Coarse Grain Pool Case (1982) 46 ALR 398, that description appears inconsistent with the Full Federal Court's decisions in Epitoma v AMIEU (1984) 54 ALR 730 and Bullock v Federated Furnishing Trades Society of Australasia (1985) 60 ALR 235 , which seem to
indicate that the two tests are not interchangeable (see the comments of Woodward J in Bullock at p. 240-41).
The book is of design and necessity both concise and general. Within those limitations it provides a fairly useful companion to more detailed materials.
CHRIS SPENCE
Modern Equity
by H .G. Hanbury and R.H . Maudsley, 12th edition edited by J.E . Martin. Pages i-cxiv, 1-920 1985, London, Stevens & Sons
Hanbury and Maudsley 's Modern Equity is a classic work and the 12th edition will confirm this book's place in the front rank of works on equity.
This edition is the first in which neither the original authors have been directly involved. The present editor, J.E . Martin has undertaken "substantial rewriting of certain topics, in particular certainty of objects, the cy-pres doctrine, equitable tracing and much of the tax chapter" (1)
The work is predominantly concerned with the law of trusts and trustees . In addition Equitable Remedies (specific performance , injunctions, rescission and rectification) and equitable doctines such as election, satisfaction and performance, licences and equities (2) are dealt with.
As a research tool for student or practitioner, this work is excellent. The index is comprehensive and each chapter commences with a detailed table of contents. Understandably for an English work there is a dearth of references to Australian statutes or case law, nevertheless this text is an excellent adjunct to works such as Jacobs Law of Trusts in Australia and Ford and Lee's Principles of the Law of Trusts.
It will interest taxation practitioners in light of legislative developments in Australia that this work devotes a chapter to taxation and trusts. Certainly discussion of the approach adopted in the United Kingdom to both income tax and capital gains tax and trusts will be of interest to those involved in the taxation area in Australia (3)
This text has maintained its eminence under its new editor as a text on equity. It is a work that should be found on the bookshelves of both students and practitioners alike.
PETER LITHGOW
Footnotes
1. See Preface p. V
2 . for instance as in Latec Investments Ltd v. Hotel Terrigal Pty. Ltd. (1965) 113 CLR. 265 .
3. Chapter 9 at pages 212-228
Winners of Competition No.1
The subject of Competition No.1 was:A publisher's blurb on the latest and Blost expensive and useless series of loose-leaf reports or services.
The winners were Julian Burnside and Jack HaBlBlond with the follOWing respective entries:-
New Looseleaf Publication!
CAN YOU KEEP UP WITH JIM WADE?
How many busy practitioners can?
NOW, A NEW LOOSELEAF SERVICE FROM BOOKSHELF LTD.
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• Why You Should Buy Books From Jim Wade
• Why You Should Buy This Particular Book From Jim
• Any Further Reasons For Buying The Book Since I Saw You Yesterday
• Recent Kerbside Chats In Little Bourke Street
Several new books which might be of interest:
• How Jim Can Remember Your Area of Practice
• Taking A Punt On Your Area of Practice
• New Areas Of Practice
LEARN WHY SELLING LAW BOOKS IS SUCH A HIGH PRESSURE JOB. HEAR ABOUT JIM'S LATEST ENDEAVOURS TO PROVIDE EVERYTHING YOU EVER WANTED IN THE WORLD OF WORDS
Learn what other members of Counsel have bought the latest books on :
• Takeovers
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• Media Law
• The Law of Extra-terrestrials in an attempt to impress and intimidate.
READ HOW BOOKS LIKE THAT CAN PROPERLY BE CLAIMED AS ADVERTISING EXPENSES
Hear how to pretend you 've got to rush off to Court even though it's 1.15 and your beetroot sandwich is lying beside a lighted cigarette and a Jeffrey Archer novel.
NO
PRACTITIONER CAN AFFORD NOT TO SUBSCRIBE TO THIS WORK!
The work comes in two volumes: Volume I: Monologues Volume II : Anecdotes
Monologues reported in Volume I range from the modest scale of fifteen minute telephone chats , to real classics which occur when you are in Chambers, with dust on your diary and no visible means of escape .
There is no need to tell you about the anecdotes: you've heard them all before. But this is a wonderful archival resource.
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Competition No.2
Subject:
A memorandum to your instructing solicitor advising in the strongest possible terms that an appeal should not be brought.
50-100 words Entries close 8th March , 1987
Prize: A bottle of reasonably good wine from th e Essoign Club.
Solution to Captain's Cryptic No. 57
It is early afternoon at the Four Courts Cafeteria (see Bar News - Winter 1986) and two Magistrates' Court hacks are completing their cappuchini and the daily search for reasons why they obtained such unexpected results that morning. Failing to find the answers they so carefully searched for, they turn to other matters:
Richard:
Chris:
Richard :
Chris:
Richard:
Chris:
Richard:
Chris:
Richard:
Chris:
I've heard that another three Magistrates have been appointed.
Yes that's right (and proceeds to reel off names, background and a critique of each which is better left unprinted).
There would be a few members of the Bar who'd be rather disappointed at the news. Marvin Roache for instance!
Did he apply?
I am sure he did.
He didn't get an interview though?
He's not saying.
Why is he so disappointed?
Ever since the last advertisement for Magistrates' positions everyone has been tipping that he would be the next appointment. I mean he was considered a greater certainty around the Bar than the possibility of a major fault in Owen Dixon West being found. Even Godfrey at Melbourne Magistrates' Court was tipping him. I think he had even made his plans, sold his car, ceased paying rent on his Chambers, let his subscriptions to Nash and Vickery lapse, stopped taking Solicitors to lunch and ceased exchanging pleasantries with his Clerk.
Richard:
Chris:
Richard:
Chris:
Richard:
Do you think he would have been a good apPointment?
Everyone seems to assume that he would be ideal.
Why?
I can't really put my finger on it. He just seems the part. Been around a while, done a few things, got a sense of humour, knows what a Bond is, heard about a reasonable doubt, knows how to keep a plea short and simple his estimates aren't too outrageous and he likes only an occasional drink.
He hasn't been admitted all that long has he?
Chris: I thought he had, he's certainly a bit older than most. He must have thought he had been admitted long enough because he applied didn't he?
Richard: Yeah. I take a bit of credit for that. I kept telling him he ought to apply, that he'd make a good Magistrate and that everyone was talking about him being the next appointment. I then started to spread the word that he had applied and that he was a hot tip. I sort of snowballed from there. I think with so many people asking him if he had applied and telling him that he looked the part and calling him "Your Worship" he started to become fairly confident about his chances. That is what prompted him to apply I think. I would not have thought that he would have had much chance, even made it to the short list. He's only been admitted three years and his previous experience was mainly as a Clerk with the Tramways. I sucked him in somewhat.
Chris: That was a pretty dirty trick to play on somebody who thinks you are a good mate of his.
Richard: Oh come on ChriS, I couln't help it if people believe the things I tell them. Do you want another coffee?
Chris: Why not, I've only got some answers to interrogatories to do.
Richard: Chris have you ever thought of becoming a Magistrate yourself? You'd be OK you know
GRAHAM DEVRIES
Milestones
On 1st May, 1986 J.P. Hennessey reached 50 years as a Barrister and Solicitor of the Supreme Court. All that business about Wallis Simpson is all eyewash - as soon as Edward VIII heard that Hennessey had been admitted to practice he abdicated. Undeterred Hennessey established the firm of J.P. Hennessey in Carlton and continued therein until 17th February 1977. He was admitted to the NSW Bar in 1978 and the Victorian Bar in 1980.
Conference Confabulations
Ocho Rios8th Commonwealth Law Conference
Fortunately some very wise men (and perhaps some women) decided that the future of the Commonwealth ought to be explored, in depth, at the most obvious city designed to d e al with 1,500 delegates from around the commonwealth global , viz Ocho Rios , Jamaica.
Ocho Rios provided a haven for Sir Winston and Lady Churchill during brief respites from the European recarving of boundaries which took place between 1939 and 1945.
At the conference no less than 23 Commonwealth Chief Justices considered it necessary to attend to safeguard the jurisdiction of the nations which they represented.
Nigeria sent no less than 20 justices to make sure its view was well represented.
A welcome and a farewell were attended by nearly each of the delegates but one could hardly say the same of what went between.
One of the scenic highlights of the area is a waterfall behind which is a narrow and slippery track. The locals insist that visitors cling to one another for support. Hence the startling spectacle of a senior member of one of Melbourne's leading legal firms hold ing hands with a junior (male) member of the Sydney Bar.
Where else could a legal cricket team culminate its tour through the Carribean but at Ocho Rios. (Bill Gillard will no doubt report in great and accurate detail the results .) Only there could one properly debate "A New International Economic OrderLaw or Politics", or understand the intricacies of "The Legislative Process Today".
Accommodation ranged from fairly innocuous high rise establishments, including a Sh e raton (sans security raids) to small private hotels where delegates ate under the stars to the accompaniment of reggae and crab races.
It should be further reported that David Ashley and Lyn Boyes have added "jerk chicken" to their vocabulary. There is no correlation between "jerk
chicken" and "jerk off" Judges Gorman and Howse can now list "reggae" as part of their repertoire No doubt their listing in Who's Who will have to be amended.
Your reporter is further informed that Peter Bick is now a leading authority on the seamier side of Ocho Rios night life.
It seems that there is life after marriage at the Bar, or should that be marriage after life at the Bar Whatever, Rose and Mark Weinberg have survived sufficiently to both be in Jamaica , at the same time.
There were , no doubt, other members of the Bar present in Ocho Rios upon whom this reporter has failed to report. They either failed to make any impact in Ocho Rios, didn't attend any sessions, or this reporter consumed too much rum during the week which resulted in him being oblivious to their particular presence
New York - I.B.A. Conference
Some very clever planner was able to organize the 8th Commonwealth Conference in Jamaica to be followed by the I.B.A. Conference in New York.
Some lucky people were therefore able to go from one legal convention to the next - is there such a thing as a legal "groupie"? Those lucky people found themselves in the quiet intimacy of New York, surrounded by their closest and best-known legal friends who, together with their spouses , numbered a modest 4 ,000 odd.
The conference was opened by Mrs Justice Sandra Day O'Connor who extolled the virtues of women in the profession and informed us that in the U.S.A. there was one lawyer for every 375 citizens. Editors
Note: No wonder it's known as the land of the fee and the home of the sauve!
There were literally hundreds of lawyers delivering papers on some of the most important topics known to mankind , attended almost without exception by capacity audiences
It was remarkable how conscientious the delegates were, failing to show any interest in New York's museums, Broadway, Soho, Greenwich Village, Statue of Liberty, World Trade Centre, Central Park, Radio City, or any of the other places "normal" tourists might seek to go.
It is difficult to report on individual performances by members of the Bar in New York as sheer size allowed anonymity, so no doubt many have been able to indulge in all sorts of indiscretions Whilst it is tempting to resort to imagination, the laws of libel (which were also the subject of a paper) restrict th e writer to the mundane, and that's hardly worth writing about.
TOM DANOS
I must say it's my first experie nce of the Tipperary alibi - not only the accused but also th e prosecution witnesses are proved not to have been at the scene
Croc's Corner
Forthcoming Conferences
Ninth National Labor Lawyers Conference - Perth18-20 September 1987
The Conference will precede the 24th Australian Legal Convention to be held in Perth from 20th to 25th September 1987 .
The Conference organiser is:
Nuala Keating, W A. Society of Labor Lawyers, G PD. Box P1596 , Perth, 6001
