Book Review: The Australian Book of Great Trials

In The Australian Book of Great Trials, Jeremy Stoljar S.C. sets himself an imposing task: identifying ‘greatness’, no matter the endeavour, is a fraught task. Is it any less so when selecting a dozen trials? By what criteria, after all, can greatness be judged? Stoljar gives us part of his answer in his introduction: “Through these trials,” he says, “we can glimpse Australia itself over the last 200 years.”

And so it turns out. Stoljar does nothing less than tell a story of the development of Australian identity through his twelve trials. They span the duration of white settlement — from the first civil hearing in 1788 to the recent ‘Jihad’ Jack terrorism trials. The cases deal with convict-settler relations, indigenous-white relations, sentencing principles, the role of the state and the limits of its powers. Australia’s migrant story is told, time and again, through the cases selected. The trials feature atheists and litigants of various religious hues. In short, the trials reflect many of the rich and complex features of this nation’s life.

All the trials were high-profile, many because they were divisive when they were heard: the Eureka Stockade hearings, the Ned Kelly trial, the Communist Party case, Lindy Chamberlain’s travails, Mabo. Each is fascinating in its own right, and Stoljar tells the stories exceptionally well. The characters who populate the trials — the parties, witnesses, barristers and judges — are well-drawn. We come to understand their motivations, and how they found themselves as participants in these large events. Partly, this is because Stoljar has the novelist’s eye for the telling detail: that the prison guard shot and killed by Ronald Ryan on Christmas Day 1965 supported St Kilda; that Lionel Murphy’s parents ran the Cricketer’s Arms Hotel in Surry Hills near the SCG; and that Eddie Mabo’s family totems were the shark and the Torres Strait pigeon. The drama of the cases — both that which gave rise to the trials, as well as the courtroom drama — is tightly maintained throughout Stoljar’s tellings. The narratives of these cases are gripping. We remember the cases, or will now.

But the heroes of Stoljar’s book are often neither the parties in the cases, nor the lawyers who conducted the trials. They are the courts, themselves. Amidst feverish media coverage, divided public opinion, or the pressure of political interests (if not interference), it is the courts that objectively and independently assess the evidence before them and apply the law without fear or favour. The outcomes are, for the most part, remarkable. That two convicts might successfully bring a bailment claim against the master of one of the First Fleet ships who lost (or sold) their property of which he (the master) had taken possession before the eight-month crossing from Portsmouth to Sydney Cove. That the white frontier settlers, who murdered over 20 indigenous people at Myall Creek, would be sentenced to death in 1838 and that, in doing so, Justice Burton would, unambiguously, declare that, if a human life had been taken, the law did not distinguish whether the person had white or black skin. That each of the 13 Eureka Stockade defendants might win his trial. That Robert Menzies’ Communist Party Dissolution Act 1950 (Cth) might be struck down so soon after his election victory, and that Mabo might redefine property rights as boldly as it did.

Stoljar does not, however, shy from passing commentary on the outcomes of some of the trials still marked by controversy. He concludes, for example, that, based on the evidence before them, the jury was probably right to have found Kelly guilty and that, while Phillip Opas QC who defended Ronald Ryan was convinced of his innocence, the evidence suggests otherwise.

Stoljar also observes the toll that trials sometimes take on participants, and not only the parties. Opas’ efforts to stave off Ryan’s execution both exhausted him, and risked him being struck off, an interesting sub-plot to the larger story of Ryan’s trial. The Victorian Premier at the time, Henry Bolte, instructed the public solicitor to withdrawn Opas’ brief to appear for Ryan because he was not prepared to publicly fund Ryan’s appeal to the Privy Council. Opas was content to pay his own fare, but needed to find an instructing solicitor. In defiance of a ruling of the Ethics Committee of the Bar Council, that to do so would be to tout for business, Opas went on Melbourne radio and successfully appealed for an instructing solicitor. He was subsequently called to show cause before the Bar Council as to why he should not be struck off. (Echoes might be heard in the more recent consequences for Stephen Keim SC of releasing transcripts in the Mohammad Haneef affair to the media.) Stoljar also recounts how Opas was approached by the Victorian Attorney-General at the bar of the Menzies Hotel soon after Ryan’s execution and told he would never be briefed by the Crown again, and that “As for the Bench — you had better pick one out in Fitzroy Gardens”. A nice, but extremely cruel, line.

However Stoljar also offers something of particular interest to practising lawyers. He illuminates some of the forensic decisions taken by counsel in the course of the trials. That the Eureka Stockade defendants, for example, were charged with high treason in circumstances where the elements could never be made out and that the prosecution continued to run each of the thirteen trials despite a growing acquittal count. That counsel for Ned Kelly, Henry Bindon, may have changed his ‘case theory’ mid-trial. That Sidney Orr, the Professor of Philosophy at the University of Tasmania who was dismissed for having a sexual relationship with one of his students, rejected his counsel’s advice to run his trial as a narrow breach of employment contract case (he had tenure), insisting instead on denying the allegations against him and ultimately exposing himself to a fatal attack on his credit.

This is a book of court stories. It is a book both for anyone interested in how court decisions shape history, and for lawyers who have chosen to practise in a profession that protects liberal democracies. Stoljar’s is a terrific collection of trials, marvelously told.

Footnotes

1. Simon Cleary, Brisbane barrister, is the author of the novel The Comfort of Figs reviewed in Hearsay at http://old.hearsay.lancedev.net/index.php?option=com_content&task=view&id=756&Itemid=4. Simon’s latest novel, Closer to Stone, is expected out in 2012: Editor.
2. Pier 9 is an imprint of Murdoch Books. Murdoch Books is an independent publisher purchased by management buyout from News Limited in 1991. Its website is at: http://www.murdochbooks.com.au/Page/About-Us.