After the War
When I resumed practice after the First World War my Chambers Here little more than a mousetrap with hardly room to turn. Next to me in a room only square inches larger was Alf Foster, later the distinguished Judge of the Arbitration Court. On my other side was a much larger room occupied by Theyre Weigall, a pillar of respectability and learned in equity and company law. There was astonishment at the Bar when Weigall died, leaving assets which represented in our eyes an amazing sum: he was always crying poor.
I began to receive small criminal briefs from well known practitioners, Joe and Charlie Barnett, Teddy Nigan and or two others. Contrary to the English practice, consultations between client and barrister were conventional; and to these I gave close attention. How vividly I recollect the great Weigall one day rushing into my room in a state of excitement. His first words were to tell me that, owing to the destruction of several bricks in the fireplace on the common wall, he could hear every word that was said in my chambers. With visions of disbarment looming before me I stammered a few barely intelligible words. My relief can be imagined when Weigall went on, ‘I can only say that I admire very, very much the care which you take in your consultations, but what worries me is the possibility of what goes on in my room being overheard. When I think of the important financial matters that are discussed, the reconstruction of companies……’ It was unnecessary for me to assure him that, even had I read his brief’s, much less overheard his conversations, the subjects on which he was elaborating would have been, to me, incomprehensible.
My entry into the licensing jurisdiction soon after the war was a stroke of luck. The Licensing Court was presided over by Tom Barr and two colleagues, and my first appearance there was for a hotelkeeper whose application for a renewal of his licence was opposed on the ground of a conviction for offensive behaviour. Without any experience, but acting on intuition, I ran the line of argument that the case against my client had been clearly proved and that it was a matter of considerable gravity which fully justified the police in opposing the renewal. Though the offence was quite trivial I made an abject apology, expressed my client’s contrition, struck my own breast not three but thirty times, and assured the Court that there would be no recurrence of the conduct complained of, nor of any other guilty conduct of any kind. The Court accepted my profuse apologies for the past and my client’s undertakings for the future and graciously granted the licence.
At the conclusion of the case a rather saturnine looking gentleman approached me and assured me that I would have many more briefs. I was so ignorant that I did not recognise Percy Henry, the well-known hotel broker who controlled the licensing trade of Melbourne. Henry was as good as his word. The following week I had a substantial licensing matter from a solicitor then unknown to me, and from that time onward I was over-run with cases in the Licensing Court, becoming an alleged expert before I had even mastered the relevant statutes. Actions for misrepresentation in the selling of hotels were common at the time, and within a month or two I found myself engaged in Supreme Court actions for which, by reason of my inexperience, I was not sufficiently equipped. I was compelled to work; I had no alternative unless I was prepared to slip down the greasy pole as rapidly as I had climbed it. A number of these cases resulted favourably, and I could now count myself as effectively launched.
I also went through the customary routine of circuit work. My practice grew. Leo Cussen, one of the leading juniors, was very kind to me, and my relationship with my senior and junior colleagues was such that I have to confess a debt to many and rancour towards none.
Herbert Bryant, with whom I had read when I came down from Bendigo in l9l4, indirectly steered work in my direction. Solicitors who briefed him occasionally briefed me, and I had one experience which affected the whole of my life. Sol Green, through his solicitors, briefed Bryant to appear for him in a case brought against him by George Dickenson. The point at issue is not important but I think it concerned a risk with which the legal profession was not so familiar in those days; namely that when you buy shares in a company you take over certain liabilities which the careless may have neglected to enquire about – particularly income tax.
The case was on the eve of reaching Court when Bryant became ill. For some strange reason – the risk was obvious – the brief was allowed to remain with me without the importation of a senior. I met Sol, who was anxious for a settlement. I gave my best efforts and eventually arranged a settlement which completely satisfied Sol. Henceforth I became, in his words, ‘my counsel’. The acquaintance developed rapidly. Whenever Sol was in difficulties, either in matters relating to himself or certain members of his family, he came to me.
He never ceased to warn me about the peril of’ backing horses, a peril which I carefully disregarded. He trusted me with his business and family secrets but on one point was inflexible: he would never give me a tip. There was one exception. Years later he inadvertently mentioned something about the prospects of his horse at Moonee Valley. I was in desperate need of a winner, I had sustained a very severe loss, and on the vital day I backed Sol’s horse for £300. As the horses turned into the straight I was so anxious to secure the £20 I had staked that I laid 60-20 against the animal, which duly won. I ‘invested’ the proceeds of this happy result on another horse raced by Sol’s trainer, Lou Robertson, at five to one; and after running lengths behind the field it got up and won in the last stride. The total proceeds now amounted to over £700, all of which I put on a horse that has long been forgotten. Its name was Spendall, trained by Dan McNamara. It opened at astronomical odds but duly won. The profit for me was £3,000.
In those seemingly happier days, the newspaper space occupied by matters like Korea, Cyprus and Vietnam, was much smaller, and it was the custom to report law cases in detail. Sometimes the cross-examination was published almost sentence by sentence. My father, who now kept the Victoria Hotel in Rochester, followed my progress eagerly through the press and was a punctual visitor to the local railway station in order to acquire a daily paper at the earliest possible moment. If the result of a case was in my favour his habit was immediately to open the paper to its fullest width and to stroll slowly along the Rochester street until intercepted by friends enquiring what it was which was so engrossing. There was no trouble in persuading him to explain. If, on the other hand, a foolish judge or a feeble-headed jury found against me, the paper was stuffed quickly into his coat pocket. On his return home it was placed under the cushion of the chair on which he habitually sat. My mother, realising exactly what had happened, then became most diligent in pestering him for the newspaper.
If I were asked to nominate one book to which I owed most in my early years at the bar I would unhesitatingly select Wellmann on Cross Examination. I came across it as an articled clerk – I don’t know how – and was fascinated with its stories. I was impressed by its account of Russell’s cross-examination of Piggott in the Parnell Case. It now seems elementary; but on second thoughts I am unfair on this book because I have seen barristers, with material nearly as good as Russell’s, rush into their cross-examination of a lying witness and make ineffective use of what should have been conclusive material. I am afraid that I can claim to have satisfied myself in cross-examination only once or twice in my career.
Soon after going to the bar I was briefed before Mr Justice McArthur in the Bendigo Supreme Court, to appear for a well known policeman. The policeman, Earnshaw, had been named as co-respondent, and evidence was given that he had visited the respondent’s home during the absence of her husband. In support a neighbour was called, a simple old lady; and she testified to seeing Earnshaw pay several visits. I then had to cross-examine the old lady, and even after these years I believe, for a young barrister; I did a pretty good job. The cross-examination ran on these lines:
Now, Madam, I am sure you can help me if you recollect for a moment – Don’t you remember that there was a certain period when Constable Earnshaw was there at least twice a week?
Witness: Yes, Sir, he was.
And then, just stretching your memory a little further, I’m sure you remember that he was later there three or four times each week – I’m not sure which.
Witness: Yes, he was.
Now, coming to the time when he was at the height of his visits, you will remember – and don’t hesitate to say so if you do remember – that there was one week when he was there every day.
Witness: Yes, there was.
And I’m sure you must have been surprised, were you not, when even during that period he came back one night?
Witness: Yes, he came back one night.
Now, these nightly visits were – I can’t tell you how many there were – but they were not infrequent, were they?
Witness: No.
In other words you became accustomed to seeing him there almost continuously. Sometimes once a day, occasionally at night time?
Witness: That is correct.
And now, you’ll help us all very much if you can remember the last occasion? Do you remember the day you saw his horse coming up to the house on its own and without a rider?
To my delight she said: ‘Yes’
I had sense enough to ask her no more questions. Needless to says my cross-examination impressed Bendigo solicitors, and helped me a lot as a barrister.
I was now convinced that this form of cross-examination by exaggeration could be most effective. Several judges loved it. McArthur had himself been a suave cross-examiner and he took a technical interest in the performance of counsel; and this easy style of cross-examination, with no violence or bullying appealed to him On the other hand, Billy Williams, whenever he saw me making progress by this method, would interrupt promptly and steer me off course. His demands on counsel in the County Court to desist from this type of examination were very peremptory.
A lady of considerable means had been adopted – shall we say – by a youthful executive holding office in one of the big pastoral companies. He had been most attentive and for very good reason, for the lady was old and quite rich. After her death he produced her will of which he was the sole executor and beneficiary. One of her relatives decided to contest the will, and through a Geelong solicitor I was briefed. The most vigorous research unfortunately failed to discover any material for my cross-examination. I did not have one witness to call nor any material to offer the court. The young executive was without vice and highly regarded; his Christian names and surname represented all the chivalry of Scotland and he insisted that he had drawn up the will simply instructions of the old lady. I cross-examined the propounder of the will during the first day without making any progress. There was one ground for hope. The will drawn up in Geelong contained a phrase or sentence which was not employed by professional will-makers. On the second day I made a little progress and apparently caused the presiding judge to feel that there was than more behind this will than presently appeared. Pressing the matter I elicited from the witness that he was the executor of many other wills. I persuaded the Judge to order the production of these wills, not for an examination of their general contents but with one object in view. The wills were eventually produced, and in each of them was found the extraordinary sentence, suggesting that he had a larger part than he had admitted in drawing up the will.
I was unable to do more than base my fragile argument on this extraordinary sentence but suddenly I saw the witness quivering. I pressed home with my cross-examination and eventually he turned green-yellow. As the afternoon drew to its close I was able to appeal with dramatic suddenness for someone to help him as he collapsed in the box. I have been to many countries, seen many glorious mountains and lovely rivers, but I know no sight which pleased me quite so much as seeing him tumble from the witness box.
I was quite agreeable to an adjournment of the case – previously I had tried in vain to make a settlement. A settlement was later arrived at under which the interests of my client were protected.
Many years later I was waited upon by a firm of solicitors and asked if I would accept a brief in which the same gentleman was again a party. Again he had flattered an old lady by his intentions until she executed an agreement giving him an option to purchase her property at a figure very much below its commercial value. This option was exercised and he then treated the lady with considerable disregard. An action was brought against him, and once again he defended his conduct with confidence. When it was announced that I was appearing against this monument of Scottish chivalry, offers of settlement were suddenly made by his advisers. The old lady was now to receive £12,000, but our difficulties were not yet at an end. She was in her eighties and entirely without means but insisted that she would sanction no settlement which did not give her back her property. This was obviously impossible, so I spent an afternoon with other counsel and their solicitors vainly trying to persuade her that she must accept the £12,000. Eventually I said, ‘Well madam I will open the case for you’; and I proceeded to do so. ‘Here, if your Honor pleases, is a lady of some considerable years, but for her the snows above have not yet damped the fire below. I must inform your Honour that she was of course tremendously infatuated with the young gentleman’. At this stage the old lady interjected, protesting fiercely. I explained that I had not yet launched the opening. This went on for some time before, needless to say, she confided that she was quite willing to take the £12,000 as settlement. I had marked the brief ‘Fee declined’, but I am not sure that I even received a note of thanks.
The Earnshaw case at Bendigo and the Geelong will case were perhaps the only two occasions during my legal career when I really felt that I had performed well as a cross-examiner. A barrister’s triumphs in that role are very limited, and the text books are correct in warning ambitious barristers to be careful when handling the dangerous weapon of cross-examination. If a witness is really telling the truth, innumerable questions by opposing counsel will merely help to confirm his veracity which is, after all, what should happen.
Although I had a reputation for treating my briefs casually, this was largely affectation. If a case involved cross-examination I went to a lot of trouble, even creating a brief for myself. In other words, I wrote down, ‘If the witness answers ‘No’. the next question is so and so. If the witness answers ‘Yes’, the next question is so and so’. And so I mentally went down the line so as to provide for the contingency that might arise. This preparation gave the impression in court that the witnesses answer was the one which I had actually expected. It’s a burdensome-method, it takes a long time, and it has its limitations; but it stood me in good stead.
Cross-examination often appears to be spontaneous but, like any other public appearance, should be rehearsed. You know the craving of some societies for someone to address them for half an hour after lunch or even an hour after dinner. I was addicted to accepting these invitations during many years and I suppose acquired a certain fluency. At any rate the invitations did not become fewer, until I finally put my foot down and now speak only on the rarest occasions. The point I want to make is simple. No matter how easy the speaker may appear to be, no matter how fluent, no matter how appropriate his impromptu jokes and witticisms, he has undertaken an immensity of work. I can truthfully say that acceptance of these invitations spoiled the day before my performance and all the day of the performance; and I was only at rest when I had completed my task. Even then I was extremely dissatisfied if, as sometime happened, I felt I had failed to live up to the best I could do. It’s amusing that people should assume that, because somebody speaks with fluency, the task of speaking is easy.
Though he makes it appear that his wit, knowledge or humour is flowing from an inexhaustible fountain, the fountain is really a pump worked by hand.
Cross-examination has been the subject of interminable discussion and advice. I doubt very much whether the average practitioner is capable of benefitting from certain kinds of detailed advice but everyone could benefit from the principles enunciated in England in 1935 by Viscount Sankey, L.C., in the case Mechanical and General Inventions Company and Lehwell v. Austin and the Austin Motor Co. Sankey quoted approvingly the remarks made by the learned Master of the Rolls: ‘Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness’. To these remarks Snaky added his own:
’A protracted and irrelevant cross-examination not only adds to the cost of litigation, but is a waste of public time. Such a cross-examination becomes indefensible when it is conducted, as it was in this case, without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law. It is not sufficient for the due administration of justice to have a learned, patient and impartial judge. Equally with him, the solicitors who prepare the case and the counsel who present it to the Court are taking part in the great task of doing justice between man and man’.
How different the recorded history of the world would be were it possible to cross-examine the historians. What a devastating attack would be made on the alleged facts that they have perpetuated. How inconclusive would many historical documents prove to be. The fact that the documents were in existence and recorded contemporary history has been accepted as a verification of their contents. What might not a cynical cross-examiner show about the ignorance of the writer, his bias and his reliance on inconclusive hearsay. Not only ancient history would be proved unreliable but the same test would reduce many contemporary records to absurdity.
We are told of the world’s many needs, but if anything like truth is to be determined the world needs a school of skilled cross-examiners. Malcolm Muggeridge, in his book ‘Tread Softly For You Tread On My Jokes’, indirectly points the same moral. He complains that the records of our times are superabundant but confused, contradictory, and tainted with conscious and unconscious deception, prejudice and self justification. While certain trusted writers, he claims, deceived themselves, some journalists were paid to deceive, and others slanted their stories in accordance with the policy of their newspapers. One is reminded of the ‘News Chronicle’s’ report of the execution of the Nuremberg criminals and the vivid account of Goering’s execution, his demeanour and his last words. In fact Goering took his own life. What a magnificent opportunity for even a neophyte cross-examiner. It is understandable that Pilate did not wait for an answer when he asked his famous question ‘What is truth?’. He too had doubtless been studying eye-witness reports, including that of Judas Iscariot. In some litigation which lasts for days, even the legal participants are doubtful as to where the truth really lies.
It is customary, in discussions on truth and evidence, to applaud the Police as men of unquestionable integrity. Normally we concede the point that one or two bad policemen might be found just as a tainted clergyman or an unworthy scoutmaster is occasionally found. I accept that the bulk of police evidence is as truly given as human frailty permits, but too frequently the point is reached where the police giving evidence have to stand up and be counted. A member of the force who fails to corroborate the statement that “it was the accused who led with his left”, necessitating the detective to counter with his right, is looked upon as a disloyal team mate.
The closing of ranks is common not only in the Force but in any class under attack. Untrue allegations of police assaults are not uncommon, especially; when the accused feels compelled to deny the authenticity of his alleged voluntary confession. Unfortunately in too many episodes has violence been used towards an accused – usually a convicted or well-suspected person – in order to induce him to make the necessary admissions and so allow the boys to go home to supper and bed. Once again the truth can rarely be elicited, even by the most experienced cross-examiner, unless he has some happy windfall. An unfortunate consequence is that sometimes a tribunal, receiving false or exaggerated evidence from a policeman, views with undue suspicion the testimony given by the next member of the force. I know of no remedy. One must be content with the reflection that human justice is a very imperfect thing.
I was never influenced by a wish to succeed socially. I, of course, went to Lord Mayors’ Dinners and Balls and to receptions at Government House, and was occasionally invited to lunch there and found it interesting. I like to know the Establishment on easy terms. Everyone, it seems, has an itch to enter or observe closely some kind of Establishment. Some of the boys who, during their vivid lives, had cut a few corners, seemed to feel that they had reached the summit of respectability, the very towers of the Establishment, when they were called on as jurymen. Frequently their past records were known to the Crown Law officers or policemen in attendance and before they could reach the box they were challenged, but others were lucky and their impressions of jury service were interesting. One of these jurymen – we’ll call him Bill – was narrating his experiences to my friend, John Cullity. ‘You know, Mr Cullity’, he said, ‘they looked somethin’ awful. They were charged with stealin’ a pair of boots and the Police caught them with the boot in a case. The Judge summed up against them pretty hard, yer know, Mr Cullity, but I was awfully sorry for them and I thought, ‘I’ve got to hold out for them whatever the others do, but it’s going to be pretty hard’. There was a fellow on our jury with a felt cap, and I thought, ‘What a bloody nark’; and then we went into the jury’s room and the foreman said, ‘Well gentlemen, this looks a very clear case’. And you know, Mr Cullity, you never can be certain. Do you know what happened. The fellow with the cloth cap says, ‘What do yer mean?’ And the foreman, he says, ‘Oh they’re guilty. They had the boots in their bag, what can anyone say against that?’ And the man with the cloth cap said, I’ve got a hell of a lot to say against it. How did they get the boots into the bag? Of course the Police put them there’. Mr Cullity, I said ‘Hear, hear’ and, you know, we came back to Court in ten minutes. And everyone was very surprised when the fellow there said, ‘How do you find?’, and the foreman said, ‘Not guilty’.
Before we came out I seen the poor devils cowering there in the dock looking even more miserable, but I just gave them a 3LO (a signal that it’s O.K.). You ought to have seen them straighten up their backs- they looked different fellows’.
It must be admitted, as a defect or benefit of the jury system, that though occasionally one of the smart boys reneged on his conventions and the habits of his life and seemed to feel that he was easing himself into permanent respectability by concurring in a verdict of guilty, very often his sympathy as a juryman was strongly associated with the accused, and I am sure that occasionally it influenced a – shall we call it – a merciful verdict.
I learned early not to take too much notice of the observations of jurymen after a criminal case was over. In fact if you accepted what they had to say, you would wonder how on earth a verdict of ‘Guilty’ was ever brought in. After the Murray case – a celebrated murder case of the 1920’s – I happened to meet three of the jurymen as I was making my way despondently home. I mentioned to them, ‘Of course, Murray will hang’. Each expressed his utmost horror at such a suggestion and pointed out that Murray hadn’t carried a gun and hadn’t fired a shot. They appeared to be ready to go back to Court and almost revoke their verdict.
And yet when the newspaper controversy broke out a few days later, one of the jurymen who had spoken to me
had no hesitation in writing to the newspaper and affirming that the jury had realised that their verdict might well mean the execution of the accused.
A jury, of course, is influenced by the personal background of individual members, by their social attitudes, by their attitude to the law, by their interaction in a group, and by their emotions. I have sometimes read of juries in tears but my only personal experience was a case in the north eastern district of Victoria where I was briefed for the defence of a husband and wife.
They were a pleasant couple and the wife had recently given birth to a child. She suffered considerably depression thereafter and was convinced that she had an incurable disease. Her depression extended to her husband and they decided to end the family lives. Their preparations were seemingly thorough. Strong poison was wrapped in pellets of dough so as to be readily swallowed. Both husband and wife, who normally were not drinkers, then imbibed extremely freely, and thus equipped themselves with poison and alcohol for the eternal shadows. They then set out in their car, the baby with them, and driving at some sixty miles an hour around a corner they deliberately overturned the vehicle. Everybody was hurled clear of the car, and neighbours gave prompt assistance. How the question of the poisoning was discovered I do not now remember, but emetics were administered; the surrounding dough had prevented the poison from acting on their systems. In the course of a couple of days the father, mother and baby were all doing well, save for the intervention of the police.
The mother was charged with attempted murder of her husband and baby, the father was charged with the attempted murder of the mother and baby, but no charge was levied against the baby. Bailey was the Attorney General and on receipt of the brief I caused strong representations to be made to him that the pitiful circumstances of the case made it appropriate for the attempted murder charges to be withdrawn. On the other hand, if charges of attempted suicide were substituted, the accused would plead guilty. The proposal was peremptorily refused. I was very, very angry.
At the trial I made capital of the fact that the Attorney General was, in a criminal prosecution according to judicial decision, a party to the case and consequently his conduct could be discussed. My discussion of his conduct was, to say the least, hardly flattering. I emphasised the charges against the parties, begged the jury not to make any mistake about convicting the baby against whom no charges were laid, and as graphically as I could I portrayed the pitiful state of the accused at the time of their action. I had the last word, and at the conclusion of my address the old foreman of the jury was mopping his eyes and several other members of the jury were visibly affected. Without leaving the box the jury immediately acquitted the father, mother and baby.
The press played up the case, and headlined my criticism of the Attorney General. He was extremely indignant and I was highly pleased. I still am.
For many years I contemplated writing the story of George Delaney but never got around to it, mainly because of my own laziness. I was also influenced by the fact that a member of the police force who figured largely in the case was still living; my comments might have involved me in an action for defamation. In essence a bomb was thrown into a club where gambling and gaming took place. The club was in the heart of Melbourne, and I do not know after all these years the detail of the vendetta which resulted in the bomb-throwing.
George Delaney was not a criminal but was a young man mixing with the wrong people and was known by the police to be one of their companions. On the night of the explosion he went to the pictures with his fiancée. He then drove his car home, but the car was searched and a bomb was found. This, to most people, would appear to be almost conclusive; but no barrister then engaged in criminal work, nor members of the underworld who were familiar with the facts, believed that George had any knowledge of the bomb. The placing of it in his car was allegedly instigated by a certain unfavourably-known member of the police force. Of this no proof was ever adduced.
George and some others were convicted and George was sentenced to twelve years imprisonment. He was a well behaved prisoner, but each time representations were made for his release a bomb would explode in a certain locality, and the explosion was then interpreted as the act of George’s sympathisers. As a result George did his time, His fiancée waited for him for these twelve years, and when he was released she married him; and at this date 1970, is still with him. They are devoted to each other. Owing to an operation on the throat for cancer, his voice cannot be interpreted by the average hearer, but she reads his lips and acts for him. George was released from gaol at a time when work was scarce, even for the unskilled labourer. I am happy to say that I made representations to Colonel Harold Cohen, well known solicitor and chairman of the Carlton Brewery, who found a job for him amongst the casks. He worked hard at the brewery in water and slush, and he and his wife lived modestly but happily. At the end of twelve years in the brewery George had slowed down and a new job had to be obtained. He became a cleaner in, of all places, the Parliamentary offices in Spring Street. He was an indefatigable worker; he rose at a very early hour, carried coal and heavy loads and soon endeared himself – the word endeared is no extravagance – to various members of parliament. No one had the least idea of his conviction, and he remained there for many years. Eventually he had to take time off for an operation for cancer of the throat, and his health and voice were affected, but he continued to work at Parliament House for a long time, and his final retirement was regretted by everyone.
He bore no resentment, except against one man, and was not very interested in a public vindication. It is a strange thing to say of a man who served twelve years in gaol but he was one of the most admirable characters I’ve met.