: The Death Of The Sun

The Death Of The Sun

Luke Rowe

The lament of Charles Dickens, and the NSW Criminal Courts

WL Morison said that Lord Denning could recite the opening paragraphs of Charles Dickens’ Bleak House by heart.1 I suppose Lord Denning hoped nothing of the sort could be said about any court that he presided over. Bleak House opens as follows:

LONDON. Michaelmas Term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall. Implacable November weather. As much mud in the streets as if the waters had but newly retired from the face of the earth, and it would not be wonderful to meet a Megalosaurus, forty feet long or so, waddling like an elephantine lizard up Holborn Hill. Smoke lowering down from chimney-pots, making a soft black drizzle, with flakes of soot in it as big as full-grown snow-flakes — gone into mourning, one might imagine, for the death of the sun. … And hard by Temple Bar, in Lincoln’s Inn Hall, at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.2

What Dickens saw frustrated him and invited his contempt: ‘The one great principle of the English law is to make business for itself.’3 Sitting in the public gallery of NSW Local, District and Supreme Courts, a copy of Bleak House in my bag, what I saw intrigued me, interested me, bored me, captured me, unsettled and humbled me. Of course the Chancery Courts are civil courts and the sessions I visited were criminal and so, to an extent, cannot be expected to be anything like each other. However, themes emerge that are common to those that Dickens explores in Bleak House. They are discussed here under the following headings.

Orta recens quam pura nites

As autumn fades into a winter fog that covers London, Dickens begins his indictment. The gas lamps barely penetrate the dense fog as it hangs over the city and sits in judgment over the Court of Chancery.

Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds this day in the sight of heaven and earth... Well may the court be dim, with wasting candles here and there; well may the fog hang heavy in it, as if it would never get out; well may the stained-glass windows lose their colour and admit no light of day into the place.4

Tuesday morning, 9 am Local Court

Bankstown Local Court does not look like a High Court of Chancery. Not even a hint of sandstone. There is a park with a small war memorial outside the court. As I wait on the steps of the courthouse a woman dressed in a hijab drives a black hummer down the road. A very different world to the one Dickens would have known.

Inside, the building is clean and modern. Natural light permeates the atrium. Above the magistrate, who sits above and behind a row of assistants in Court One of Bankstown Local Court, the New South Wales Coat of Arms reads Orta recens quam pura nites – ‘Newly risen, how brightly you shine’.

Court One is quiet and still. With the doors to the atrium closed the room is sombre and almost dim. The white, middle-aged magistrate browses some papers and a young African-Australian lawyer reads Aldous Huxley’s Animal Farm. The lawyer is waiting to put forward information for a client who is not present for a case that will be adjourned. Other defendants are waiting for their turn to speak and everyone else, all students, are sitting quietly.

It is a quiet day at the court. The few cases to be heard are dealt with quickly. Some argue that the Local Court can make matters seem of little legal relevance how they are decided.5 There are echoes of this attitude in the grinding monotony of a mechanistic judicial process, but it cannot be said that the magistrate has treated anything lightly. The cases though were indeed heard quickly. It is a far cry from the lengthy, costly, inchoate farce presented by Dickens, but perhaps goes the other way. There is the feeling that, were it a busy day, it would be hard to give each case the time to hear it in its fullness. Just because it is the local court does not mean that there is little riding on the outcome.

Court One of Bankstown local court is no Chancery Court, but does it really shine that brightly? “Sunlight is said to be the best of disinfectants”,6 said US Associate Justice Louis Brandeis. Court One does not have the glow of the early sunrise of the coat of arms, but rather the modest and clinical luminescence of the fluorescent lights above us.  

Tuesday afternoon, 3 pm District Court

The coat of arms, the judge’s bench and the sombreness of the district court are among the few similarities to be noticed between it and the local court. Upstairs at the Downing Centre, where the local court is housed, a crowd of people are waiting to have their cases heard. Downstairs is quiet and empty, save for the barrister who stops to talk with me while he is waiting for the jury to decide his case. There is a long rectangular window set up high in the wall towards the ceiling, which shows that the room is partly below street level. Through it you can see the upper parts of buildings and the feet of the business people who walk by.

Inside the courtroom there are two rows of seats at the back of the room for the public. As with the local court, with the exception of students, the seats are empty save for one or two. We are separated from the actual court by a glass panel which goes from the ground to the ceiling. Audio speakers are required in the viewing space to hear what is happening in the proceedings, giving the feeling that we are watching a sociology experiment unfold from behind one way glass. The speakers are on low and I strain to hear.

The proceedings are painfully slow. I learn what secondary transfer is in DNA testing and that someone has most probably handled a saucepan of some description for some reason. It takes much longer to learn that the defendant had most probably touched that saucepan, that the saucepan had been used to make illicit drugs, and that the two may or may not be connected. Charles Dickens is falling asleep next to me. In the district court, it takes longer for this information to be established than it did for the magistrate in Bankstown Local Court, Court One, to decide the morning’s list of cases and break for morning tea. My mind turns to Bleak House in this environment. It is reminiscent of the drawn out procedure of Dickens’ court, though admittedly not its superfluity.

Wednesday morning, 10 am Local Court.

The feel of the local court takes on a different manner altogether when it comes to AVO cases. All of the AVO cases are heard in the one courtroom today. There is a simple list in the waiting room of the Downing Centre that catalogues the morning’s cases. The list itself is distressing — there are so many names on it. How much broken hope does that list contain? How can people say that magistrates and judges live in an ivory tower in which they cannot understand the world? They probably see more of the trouble and despair that the world has to offer than the rest of us.

To walk down the aisle of a law library is to walk past a catalogue of human evil. How much hurt, blood and suffering do the books contain? The Apostle John said that if all the works of Jesus could be written down, the world itself could not contain the books that would be written. The same could be said of human wrongs. Justice McHugh once said in a speech, in response to the suggestion that judges are disconnected from the world at large, that it would not take long for a judge to conclude ‘that the only limit to human evil, depravity, and dishonesty is physical impossibility’.7 Being the local court, the stories of the women who have been the victims of domestic violence will likely not be recorded, nor will the suffering they have endured. There is simply the list outside the courtroom of the Downing Centre. People will walk past it this morning and then it will be taken down. The stories will be heard in the court, and not retold. Lips that professed love or swore to honour and protect now swear that they will tell the whole truth and nothing but the truth. The brokenness in the world is on show, one story at a time. A new list will go up tomorrow.

The magistrate recounts the facts of a case slowly and looks down at the accused. It had started with an argument; he followed her outside to the street. His wife sits at the back of the room. Their daughter, only a child, had seen the whole thing.

Others wait here too. How many of them know all too well the pain of the wife, and of the daughter?

’Aye! A bad bruise, and the skin sadly broken. This must be very sore.’

‘It do ache a little, sir…’

‘And so your husband is a brickmaker?’

‘How do you know that, sir?’ asks the woman, astonished.

‘Why, I suppose so from the colour of the clay upon your bag and on your dress. And I know brickmakers go about working at piecework in different places. And I am sorry to say I have known them to be cruel to their wives too.’

The woman hastily lifts up her eyes as if she would deny that her injury is referable to such a cause…

‘Where is he now?’ asks the surgeon.

‘He got into trouble last night, sir; but he’ll look for me at the lodging-house.’

‘He will get into worse trouble if he often uses his large and heavy hand as he has misused it here. But you forgive him, brutal as he is, and I say no more of him, except that I wish he deserved it.’8

Honi soit qui mal y pense

Tuesday morning, 10 am Supreme Court

To see everything going on so smoothly and to think of the roughness of the suitors’ lives and deaths; to see that full dress and ceremony and to think of the waste, and want, and beggared misery it represented; to consider that while sickness of hope deferred was raging in so many hearts this polite show went calmly on from day to day, and year to year, in such good order and composure…9

The coat of arms of the Supreme Court carries with it a strong connection to the heritage of the English Courts, yet it is the only courtroom I have been in where natural light shines, et quam pura, into the room.

The shield on the British coat of arms in the Supreme Court of NSW bears the phrase honi soit qui mal y pense, meaning ‘evil to him who evil thinks’, referring to something an English monarch said in French some centuries ago, the actual meaning of which is confined to English folk lore.10 I wonder whether anyone has given it serious thought in relation to its place sitting above a judge of the Supreme Court of NSW. I doubt the barrister is thinking about it as he plays games on his smartphone while his colleague questions the witness, who has pleaded guilty to his part in this murder trial. I wonder if he queries, as members of the public do, why he is wearing a wig and a gown and what looks to the common observer awfully like a bib, and what possible relationship it has to justice.

The lives of countless men and women have been altered profoundly by the events that take place in this room. Many of them will have lived rough lives. Barristers and judges discuss the technicalities of some subsection of such and such an Act and its application to the admissibility of evidence. I doubt many understand the intricacies of the legal argument. I imagine more are fully aware of the politeness with which the next ten, twenty, or thirty years of their lives are being determined.

The Supreme Court is a far cry from the pomp, circumstance and superfluity of the English courts described by Dickens, but it has its moments.

One such occurs a short time after midday. There has been an objection, and the witness, accused and jury are required to leave the room. At some point during the discussion it is established that the accused should be present to hear the objection. The witness, not the accused, is mistakenly brought back to the court, upon which the witness must return to the cells before the accused can be brought up. Due to the layout of the courtroom, to keep the witness at all times separated from the accused, the accused must be taken down to the cells so that the witness, when brought up to the court, does not walk past. The next while is taken up with such processes, concluded and then begun all over again two minutes later for a separate objection. By the time this second objection is heard and the court has returned to its prior state, it is 12:55 pm. Nothing useful will be decided in five minutes and the judge decides to break for lunch.

… and nothing could be made of it by anybody. After an hour or so of this, and a good many speeches being begun and cut short, it was ‘referred back for the present’, as Mr Kenge said, and the papers were bundled up again before the clerks had finished bringing them in.11

Dieu et mon droit

Tuesday afternoon, 2 pm Supreme Court

Above the judge in the Supreme Court, inscribed at the bottom of the coat of arms, is the motto Dieu et mon droit – ‘God and my right’.12

The punishment meted out by the court in Bleak House is its unrelenting drain on the energies and finances of those caught up with it. There is little justice and no finality.

Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. ... The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into another world.13

Like the little plaintiff or defendant who trotted away into another world, a man is gone, and he will never come back. His room is empty. The three men who sit to the side of the judge are on trial for murder through a joint criminal enterprise. Everyone stands when the judge enters the room. They alone stand when the jury enters. The penalties for murder are rightly severe. A judge, and twelve otherwise ordinary men and women, have the power to put these men in prison.

They have walked up and down the stairs between the cells and the court multiple times this morning. There may come a time soon when they will walk down the stairs and not come back. Everything can be taken from them.

Dieu et mon droit and the death of the sun

There is a theme that runs throughout Bleak House of the inadequacy of the courts to deal with the problems of the world. There is finality in the Supreme Court, but only for some. On 1 July 2010, Kesley Burgess was murdered in a home invasion. His mother, Tracey Burgess, was also in the home at the time. Mir was alleged to be one of four men who entered the home, while Karimi and Khoury were alleged to have been waiting outside and to have helped plan the attack respectively.14 The attack was alleged to be in connection with drug supply turf conflicts. In June 2013 Mir, Karimi and Khoury were found guilty of their part in the murder.

A man is dead and his mother will read a victim impact statement. Like the Londoner who mourns the light veiled by the darkness of the fog, she is ‘gone into mourning, one might imagine, for the death of the sun.’15

As the power of the judge of the Supreme Court is, or was, at some time in history, supposed to mirror dimly the power of God — ‘Dieu et mon droit’ — so the sentence is intended to mirror dimly his justice, a setting right of wrongs.

The Chancery Court was supposed to make right at least some of the wrongs brought before it. Dickens presents a case in which it takes everything from the suitors — their money and their time and their health.16 It was supposed to set this world right but did not. In Bleak House, ultimately, only the next world could set right the wrongs of this.

… and with one parting sob [he] began the world. Not this world, oh, not this! The world that sets this right.17

The Chancery Court was of no help in righting the injustices of the world. Had Dickens observed the NSW Supreme Court, and not the English Chancery Court, I doubt he would have written the same lament. Yet whatever their virtue, and however just the decision, no court or any institution of state has such power as to right all the wrongs that come before it. They can take away, but cannot give back all of what was lost. They certainly have no power to suspend death, whether unjust or not. No one could expect that, but it is still a sobering thought as I sit watching these proceedings. A man is dead and his room is still empty.

As all partings foreshadow the great final one – so, empty rooms, bereft of a familiar presence, mournfully whisper what your room and what mine must one day be.18

LUKE ROWE is a JD student at the University of New South Wales. He loves law and he loves stories. Every day of class he walks past a banner that says, ‘A law school should have and communicate to its students a keen concern for those on whom the law may bear harshly’, with which, he thinks, Charles Dickens would warmly agree.

© 2014 Luke Rowe

REFERENCES

1. WL Morison, ‘In the Trail of the Reformers: “Bleak House” Rewritten’ (1985) 29(9) Quadrant 50, 50.

2. Charles Dickens, Bleak House (Queensway Press, first published 1852) 17–18.

3. Ibid 480.

4. Ibid 18.

5. Doreen McBarnet, Conviction: Law, the State and the Construction of Justice (Macmillan, 1981) quoted in Brown et al (eds), Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, 5th ed, 2011) 154, 154-155.

6. Louis D Brandeis, Other People’s Money – Chapter V: What Publicity Can Do (1914) — http://www.law.louisville.edu/library/collections/brandeis/node/196.

7. Justice Michael McHugh, ‘Working as a High Court Judge’ (Speech delivered at the request of the Women Lawyers’ Association and the Newcastle Law Society, Newcastle, 19 August 2005) — http://www.smh.com.au/news/national/working-as-a-high-court-judge/2005/08/18/1123958185123.html.

8. Dickens, above n 2, 551–552.

9. Ibid 309.

10. Oxford Reference Online, ‘The Order of the Garter’, The Oxford Essential Dictionary of the US Military (Oxford University Press, 2002).

11. Dickens, above n 2, 310.

12. The Official Website of the British Monarchy: Symbols of the Monarchy (2008) — http://www.royal.gov.uk/MonarchUK/Symbols/Coatsofarms.aspx.

13. Dickens, above n 2, 19–20.

14. Isabel Hayes, Murder trial told of meat cleaver attacks, Sydney Morning Herald (Sydney), 19 March 2013 <http://news.smh.com.au/breaking-news-national/murder-trial-told-of-meat-cleaver-attacks-20130319-2gce1.html>.

15. Dickens, above n 2, 17

16. See, ibid Ch LXV: Beginning the World, 751.

17. Dickens, above n 2, 757.

18. Ibid 688.

(2014) 39(3) AltLJ 206
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