John H. Phillips
A Black-Letter Lawyer
The Life – Story of Sir Redmond Barry is, I think, well known to most Victorians. His many and substantial civic activities make him a prominent candidate for the title of Melbourne's finest citizen. As Sir Ninian Stephen memorably remarked some years ago, ‘Barry opened everything in Melbourne worth opening’. One thinks immediately of the University of Melbourne, the Public Library, the Supreme Court Library, the Melbourne Hospital and even the Melbourne Philharmonic Society – in all these he was the driving force.
My task in this paper is to write of Barry as a judge.
An Irishman and graduate of Trinity College, Dublin, Barry arrived in the Port Phillip District as a qualified barrister in late 1839. The court system in the District then consisted simply of a Court of Quarter Sessions, a Magistrates Court and a Court of Requests for the recovery of small debts. While practicing at the Port Phillip Bar, Barry was appointed in January 1843 Commissioner of the Court of Requests at an annual salary of £100. He was to serve in this post for a number of years. J.L. Forde, who wrote an early history of the Victorian Bar, describes Barry as disposing of the business of this humble tribunal, ‘With all the care, patience, dignity, and conscientiousness which he displayed long after when he was a Judge.’
1 From April 1841 a member of the Supreme Court of New South Wales, Mr Justice Willis, was resident in the District but his judicial behaviour was so unacceptable he was removed in June 1843. In the meantime Barry had been appointed ‘Standing Counsel’ for Aboriginal people charged with criminal offences – an appointment which carried no salary. He took this appointment very seriously, fighting hard for his clients in court and saving a number from the gallows.
In 1851 Barry was appointed Solicitor-General in the first government of the new Colony.
In January 1852, upon the establishment of the Supreme Court of Victoria, Barry was appointed to the Court as Senior Puisne Judge, and he held that appointment (and occasionally that of Acting Chief Justice) until his death in 1880.
Barry was a complex man indeed. On more than one occasion he imposed sentence of death on a prisoner for whom a jury had made a strong recommendation to mercy. His sentence of imprisonment on the mother of Ned Kelly in 1878 (see later) undoubtedly led to the outbreak of lawlessness by her son's gang. Even senior police officers considered it excessive and said as much to a Royal Commission.
I shall not detail Barry's initial education, which was directed to his obtaining a commission in the British Army. But, from 1832, he was tutored in Greek and Latin in Cork as a preparation for entry to Trinity College. He was accepted there as an undergraduate in the following year and, in 1834, entered the King's Inns, an establishment of the Irish Bar in Dublin. At that time regulations required that to be admitted to legal practice in Ireland an individual had to complete six terms at an English Inn of Court. Barry did this at Lincoln's Inn, commencing in April 1837. In the same year he graduated Bachelor of Arts from Trinity College and was admitted to the Irish Bar in November 1838.
The ample evidence that exists of Barry's work ethic and his approach to study permits the inference that he took his legal education seriously in an era when admission to practice did not require that.
Even such accurate and objective writers as Ann Galbally
2 and Peter Ryan
3 have not been enthusiastic about Barry's judicial qualities. The former notes that he ‘was never to become a distinguished jurist’ and the latter mentions that ‘he did not enunciate any new legal principles’.
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My position is that Barry was an ideal judge for his times. The fledgling colony did not need a Sir Owen Dixon or a Lord Denning. What it needed – and got in Barry – were judges who would work hard so that the cases in the Supreme Court were completed with dispatch; who were prepared to take on the arduous travel inevitably involved in circuits and who were also prepared to publicly affirm the importance of the rule of law in troubled times – particularly after the gold discoveries.
For serious criminal proceedings in the colony, Courts of Assize operated in the various bailiwicks from 1874. In the Spring Assizes at Beechworth in 1878, Ellen Kelly, the mother of Ned Kelly, and two men named Skillion and Williamson were tried before Barry and a jury for aiding and abetting the attempted murder of a police officer, Trooper Fitzpatrick. They were all convicted. In his evidence to the jury, Fitzpatrick said that he had gone to Ellen Kelly's home with a warrant to arrest her son Dan for cattle stealing. There, Ned Kelly, with the support of the accused, had fired a shot at him, wounding him in the wrist. Barry sentenced the two men to six years‘ imprisonment with hard labour, and Ellen Kelly to three years’ imprisonment, also with hard labour. He declared he did this because she had a child of six months that she was still feeding. Ned Kelly had never been apprehended and was not present at the trial.
For many years now there has been an oral tradition that, in sentencing Ellen Kelly, Barry remarked: ‘If your son Ned was here, I would sentence him to 15 years imprisonment’ (some versions have 21 years imprisonment). Accordingly, Kelly supporters have argued that Barry should have disqualified himself from presiding at Ned's trial for murder in October 1880.
In my opinion the oral tradition is not soundly based. The Ovens and Murray Advertiser reported the Spring Assizes at Beechworth in 1878 in very great detail – particularly statements made by Barry. There is no reference to the alleged remark in the reports in this newspaper. The first reference to it in print occurred a year later in a pro-Kelly publication called The Mansfield Pamphlet. The likelihood is that the writer of the pamphlet attributed to Barry observations made by the Editor of the Ovens and Murray Advertiser. He had written that Ned Kelly was ‘a notorious ruffian’ adding ‘the only pity is that Ned Kelly, one of the most notorious young desperados ever known in these parts, has escaped detection’.
Further, the skilled and experienced Melbourne barrister, Hickman Molesworth, held the murder brief for Ned Kelly from early September 1880 until 15 October 1880. That Barry was to be the trial judge was known before the end of September. Molesworth made several applications to Barry before the commencement of the trial, but none of them involved an application that he disqualify himself for perceived or actual bias.
The distinguished Melbourne academic, Professor Louis Waller, who thoroughly reviewed Ned Kelly's trial for the purposes of a seminar at Wangaratta in the 1960s, noted that no application to disqualify had been made and concluded that ‘the story is probably apocryphal’.
The trial of Ned Kelly is remarkable for the lengthy exchange he had with Barry during the sentence proceedings. During this Barry made it quite clear that he agreed with the jury's verdict and condemned assertions by Ned Kelly that he was innocent. The exchange was a fiery one on the part of both men, with Barry speaking with feeling about lawlessness in the community, the lack of co-operation with the authorities by the populace of North Eastern Victoria, and arguing with Kelly about the extent of his cattle-stealing. It is significant, in my opinion, that the completely outspoken condemned man never once suggested bias in the Judge.
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I have long been of the opinion that Barry misdirected the jury in Kelly's trial by, in effect, taking away from them in his charge one of the central issues in the proceeding - whether the police party had gone forth to shoot him down or arrest him. It is possible that were the trial to be reviewed by a modern Court of Appeal, it would, because of the strength of the prosecution case, apply the Proviso in S.568(i) of the Crimes Act on the basis that it considered that no substantial miscarriage of justice had occurred.
In 1855, 12 diggers from the Eureka Stockade stood trial in Melbourne charged with high treason. Barry tried most of them with conspicuous fairness and courtesy. Professor Molony in his book Eureka describes Barry as ‘a man of great urbanity and wide vision’ and declares that he ‘treated with gentleness and respect the diggers who came before him in 1855’.
A perusal of the Victorian Law Reports and other contemporaneous Reports shows beyond doubt that from his appointment in 1852, Barry performed a great deal of judicial work and that the quantity of that work was not adversely affected by his many other civic interests. At his appointment there were only three judges, Chief Justice a'Beckett and Mr Justice Molesworth being the other two. By the time of Barry's death in 1880, there were still only five on the bench, Mr Justice Stephen and Mr Justice Higinbotham having been added.
The Argus newspaper reported in February 1853:
His Honour Mr Justice Barry is so earnest in doing business, that he commences shortly after 8.00 in the morning and ends after 6.00 in the evening.
The records also show that Barry did a great deal of circuit work, often appearing at the first sittings of the Supreme Court in a country town. Successive Chief Justices thought it appropriate that such a well-known judge as Barry should perform circuit work and, doubtless with their approval, he used these occasions to deliver lengthy statements for the edification of rural Victorians about the rule of law and its relationship to society.
The reports are also instructive of Barry's judicial competence. He was a black-letter lawyer with strict regard for precedent. This is well illustrated by the report of a matrimonial case, Casey -v- Casey.
4 This was a petition by a wife for divorce or, alternatively, judicial separation, and was based on alleged grounds of cruelty and adultery. As to the cruelty, the Petitioner alleged assaults on her in 1855, 1859 and 1860. During these years the Petitioner continued to live with her respondent husband. As to the adultery, the witnesses called to prove it failed to give the necessary evidence and there remained but a suspicion of it, arising from the Respondent having made a complaint to the police that a woman had stolen his watch while he was in her company.
Barry found that the Petitioner had condoned the cruelty, citing authorities such as Oliver -v- Oliver,
5 Curtis -v- Curtis,
6 Keats -v- Keats and Montezuma,
7 D‘Aguilar -v- D’Aguilar
8 and several other cases. Barry also found the evidence fell short of establishing adultery, correctly holding that an exculpatory statement of the Respondent, which accompanied an admission, should be taken into account. Again, he cited authorities and a leading text book. He concluded his judgement as follows:
After a dispassionate review of the whole of the evidence, and an examination of the conduct of the parties, I have thought it necessary to pursue the investigation of the facts and the law affecting them through the whole case, and to express my individual opinion upon both. That opinion is, that although the proof is meagre, there is reason to believe that acts coming within the meaning of legal cruelty have been committed by the Respondent, but that, spread over so large a space of time as these acts extend to, it is not
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satisfactory that the Court should be called upon to act only upon that portion of the evidence of the wife which is hostile to her husband: that, giving the fullest value to her evidence as to the cruelty, it is manifest that the acts have been deemed by her entitled to her temporary and conditional forgiveness: that they have not been condoned in succession: that the condonation has not been revived, inasmuch as there is no sufficient proof of the adultery: and that, therefore, the first part of the prayer of petition must be disallowed. I am further of the opinion that there is no proof of the commission of any other act which, if proved, would have revived the cruelty previously condoned, and thus entitle the Petitioner to a Judicial Separation.
Speaking now with the authority of the Court, it is our deliberately formed opinion that the obligation of the marriage tie is not to be disturbed on trivial grounds, or on surmise which, however probable, may be erroneous; and that it is not becoming to cast upon us as Judges a necessity for speculating on matters which ought to be established with, at least, the ordinary degree of solemnity. This Court, so recently invested with this important branch of jurisdiction, is not to deal so lightly with the marriage vow as to make such family quarrels, and unsupported accusations, as are deposed to here, a ground for separation of those who have taken each other for better and for worse. If matrimonial dissensions and violations of conjugal duty of the character already defined should exist, and are duly proved, the Court will sever the ill-assorted union. But if there be not such misconduct shown as the Court can relieve against, or if the proof be insufficient, the sufferers must be content to endure, in silence, the bitter consequences of what was, from the first, perhaps, a hastily-formed and injudicious alliance.
By was of contrast, Molesworth J. concluded his judgement:
My impression would be, on these grounds, to decree judicial separation; but I would not be taken as clearly dissenting from the conclusion of my brother Judges. I am sorry to leave, unrelieved, a woman who appears, so far as I have means of judging, without any fault of hers to have been made miserable by the unkindness, drunkenness, insults, violence, and infidelity of her husband.
9As I have written, Barry was a black-letter lawyer.
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