Nor were these conflicts restricted to those played out within the courtroom's theatre. Part of this book's fascination lies in the way the Court's customs and hierarchies reflected Victoria's changing social fabric, through debates about women as jurors or judge's associates or judges, or admission requirements, or the divided profession.
No doubt fortunately, Victoria missed the first phase of Sydney’s legal history, in which the only trained lawyers were convicts who had been ‘struck off’ before being transported, and who acted as ‘open or secret advisers, actors and promoters’ of ‘chicane’ and ‘iniquitous proceedings’, as Governor King proclaimed (p 71). However, Victoria’s early legal history showed no lack of ‘iniquitous proceedings’, such as that of Justice John Walpole Willis, Port Phillip’s first ‘resident Judge’ against a newspaper proprietor for libel of the judge himself. Willis, acting as ‘judge in his own case’, denied the defendant a jury trial and sentenced him to twelve months’ gaol and a hefty fine (p 12).
There is much in this book to interest the legal historian, as well as the student of legal process or legal professional ethics. In the 1800s, for example, as Simon Smith points out, a barrister’s admission required the applicant to pass an examination at the Court in Ancient Greek and Latin Classics, as well as mathematics or logic and in History (p 77).
The notion that the law does not change, still seriously debated in many Australian law schools until relatively recently, was carried to extraordinary lengths in some quarters. In the early 20th century, according to John Waugh, the Supreme Court library’s motto was adopted from the medieval Statute of Merton, ‘Nolumus leges Angliae mutari’ (we do not wish the laws of England to be changed), a motto of ‘complete and complacent conservatism’, as Sir John Latham called it (p 112).
The book is well structured, with chapters written by experts in their fields, mainly historians. The first two chapters deal with the Court’s early history as an outpost of New South Wales (prior to 1851, by Janine Rizzetti), and with an entertaining account by Susan Reynolds of the controversy surrounding the current Court’s construction during the years prior to 1884.
Following this, the next few chapters deal with the people of the Court. Jane Carolan provides a glimpse of the lives and conditions experienced, not just by judges and QCs, but by the ‘unsung heroes of the Court’ — the labourers, tipstaff and typists, and the librarians, at least one of whom, John Schutt, appears to have been consulted for the solutions to legal problems by the judges themselves (p 68). To a modern observer, it reads like a Dickensian world, in which functionaries with quaint titles (charwomen and tipstaves and prothonotaries) spent their lives in silent labour. One engrossing clerk, Carolan reports, worked until he was ninety, preparing certificates of admission (p 51).
Simon Smith’s chapter deals with the way changing admission rules and practices shaped the legal profession, including controversies over the admission of ‘immigrant lawyers’ with qualifications from outside England, including European immigrants escaping Nazism, and communists (p 86).
The next three chapters (by John Waugh, Susan Priestley and Charles Parkinson) deal with the Court during the three major epochs of its history. Only once in all this time does a judge appear to have complained of having ‘far too many idle days’, a cry made by Justice Henry Edward Agincourt Hodges in 1898, and with which his more recent successors are unlikely to have sympathised (p 99).
The next section (headed ‘The Court at Work’), deals with various aspects of the Court’s jurisdiction. Mark Finnane’s chapter (‘All very civil’) deals mainly with divorce law as dealt with by the Supreme Court prior to its revolutionising by the Family Law Act (Cth) in 1975. Students of social work or family law would be fascinated by the workings of that law, including the grounds of petition for divorce, which in the early 20th century included desertion, drunkenness, cruelty, and (from 1919, only) insanity (p 173), and adultery, but only if committed by the wife.
This led judges to consider seriously whether homosexual (as opposed to heterosexual) adultery was a sufficient basis for divorce on the grounds of desertion or adultery, a debate in which the philosopher Bertrand Russell’s views (‘homosexuality … should be regarded no differently than heterosexual relations’) were at one time enlisted in support (p 182).
The following chapter, by Don Garden, considers the Court on circuit in country Victoria during the nineteenth and early twentieth centuries. The Court dealt with gold rush cases, including those involving Chinese and Indian immigrants, whose religious beliefs sometimes gave rise to novel practices when it came to swearing in witnesses (p 207). As well as Ned Kelly’s case, heard initially in Beechworth, the circuit court (still called ‘assizes’, in the late 19th century), dealt with a suite of ‘sad and difficult’ cases, such as trials for infanticide and abortion. A voluntary euthanasia case in 1943 resulted in an initial death sentence being commuted to four years’ imprisonment (p 213).
Kathy Laster’s chapter on the death penalty argues that the sentence was ‘inconsistent and capricious in its operation, and arbitrary in its application’ (p 216). She argues that execution rates were high in Victoria compared to other places, including England and NSW, a situation symbolised by Victoria preserving on its statute books a long list of capital offences, such as some arson and ‘riotous destruction’ offences, long after they had been abolished elsewhere (p 217). Why this was so is not entirely clear – but it resulted, in any case, in Victoria having executed the last male and female criminals in Australia, a ‘cautionary tale about the need for courts to resist the politicisation of sentencing practice’, as Laster points out (p 233).
The final chapters deal with forensic medicine and the Supreme Court (Stephen Cordner and Fiona Leahy), and with journalists and court reporters (Peter Gregory). Coroners in the 19th century had a difficult job — not only was forensic science far more primitive than today, but Melbourne’s climate (and lack of refrigeration) meant that ‘the ends of justice must often be endangered, if not actually defeated, before the attendance of the coroner can be obtained’ (p 241). Perhaps partly because of this, some of the practices allowed by coroners (and courts) seem surprising by today’s standard — for example, the public display of the ‘Pyjama Girl’s’ body at the University of Sydney in the early 1930s, in an attempt to discover her identity (p 253).
This kind of graphic colour was also present in the court reporter’s world until at least the mid-20th century, as Peter Gregory illustrates. While recently courts have become more accessible to the media, journalists’ ability to report proceedings at length has become severely constrained, mainly because of shrinking numbers of journalists (p 282) — yet another unfortunate by-product of an age in which consumers expect all information to be free.
This is a copiously illustrated book, well designed to be dipped into, or an individual chapter read. However, it also contains much more serious analysis, and would be useful and entertaining on the reading lists of several law subjects. In itself, it is a fine illustration of a trajectory broadly outlined in the book, towards greater openness of courts and court processes. Whether this trend will continue, or be reversed, under the social pressures of the 21st century is, of course, impossible to predict.
STEPHEN GRAY teaches law at Monash University.