In this Issue the lead article – “Get Out There!” – is penned by Gareth Beacham KC, Chair of the Bar Association’s Bar Care committee. Identifying the periodic stress inherent in practice at the Bar – with its consequent effect upon health and wellbeing, particularly with the passage of the years – Gareth encourages barristers to strive to pursue interests outside practice in an endeavour to manage that stress. He presents a succinct but persuasive expose on this important issue.
“10 minutes with …” sees me in conversation with the newly appointed Chair of the Queensland Law Reform Commission, Fleur Kingham. Ms Kingham shares with readers her passage from student activist to high judicial office, and recent ascent to her critical role in the QLRC. She also shares with readers her interests outside the law and provides tips to the young practitioner.
Dr Cale Davis – raised on the Gold Coast but now a lecturer in international criminal law at the Hague University of Applied Sciences in the Netherlands – affords his detailed insight of the operational mechanics of the International Criminal Court. He does so against the background of the May application by the ICC prosecutor for the issue of warrants for the arrest of the leaders of the protagonists of the events of 7 October 2023 and the conflict which subsequently ensued in Gaza.
The Honourable Justice Martin Burns writes explaining the recent Practice Direction issued in the Supreme Court apropos of expert evidence adduced in criminal trials. This takes effect 15 July 2024. His Honour chairs the court’s Forensic Evidence Working Group, which produced such Practice Direction.
The Regional Bar section in this issue is contributed by the Magistracy. It presents, among other things, a colourful expose of some of the more than 100 regional courthouses located outside the state’s south-east corner. All are serviced by permanent or visiting Magistrates, providing justice services to the Queensland community.
A raft of other important articles and case reviews on topics of close interest to practising barristers, judges and other lawyers may be found in this Issue. The Reviews and the Arts section – edited by Stephen Kiem SC – contains the usual high quality cross-section of book and song reviews.
Since the last Issue there has been some change in the editorial ranks of Hearsay. We were sad to farewell Megan Brooks, who served ably with John Meredith, Stephen Kiem SC and me to produce Hearsay in the last two and a half years. I thank Megan for her significant contribution. The editorial team has been augmented by Philip O’Higgins KC, Carolyn Conway and Seraphina Noble. I am indebted to these members of our bar for accepting my invitation to assist – we are all volunteers – in our (religious) production of the four quarterly Issues of Hearsay.
I wish you “Good Reading” for this Issue.
Richard Douglas KC Editor
I do request your contributions to the deputy editor, editorial team or me (T: 3218 0620; M: 0417 788 713; E: douglas@callinanchambers.com).
The deputy editor is John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com). The sub-editor is Stephen Kiem SC (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who edits the book and podcast reviews.
From the President – Hearsay Issue 47: February 2011
Any exhortation from me that member barristers ought extend courtesy to a judge or witness would be characterised, ordinarily and fairly, as gratuitous if not impertinent. My message here, however, is not so much a reminder of adherence to courtesy but rather a warning not to overdo it!
Common courtesy, transcending court appearance, often entails the practice of salutation eg, “Good morning Mr Smith”.
Most counsel have engaged in or received such salutation in court, and without objection, in any exchange with the judge, magistrate or tribunal member conducting the case, or occasionally in engagement of a witness. As to the latter, the taking of evidence by telephone is a good example where salutations often punctuate the early exchange.
I recall a Bar Association CPD seminar on applications’ court practice, conducted by Justice Byrne SJA several years ago, in which his Honour deprecated the practice of salutation by counsel in that jurisdiction. His Honour, as I recall, characterised it as pointless or irrelevant in disposition of the chamber business at hand.
The practice, surprisingly, was recently the subject of curial address. By reason of that I pen this note.
In Wilson v Department of Human Services — Re Anna[2010] NSWSC 1489, Palmer J, in the equity jurisdiction of the Supreme Court of New South Wales, dealt with an application under the parens patriae jurisdiction engaged in an attempt by a Ms Wilson to reverse a decision of the Children’s Court whereby her child was ordered placed in foster care.
Palmer J, in additional remarks, recorded his views, and apparently those of the Supreme Court of the New South Wales judiciary, deprecating the practice of salutation from bar to bench:
[106] The second matter calling for comment occurred in the conduct of the case in this Court but it is not peculiar to this case — it has been observed by a number of Judges in the Supreme Court and it is currently the subject of discussion between this Court, the Bar Association and the Law Society. I refer to the practice of advocates, which seems to have developed over recent years, of announcing their appearances to the Bench or beginning the examination of witnesses with the salutation “Good morning, your Honour” or “Good afternoon, Mr Smith”. I am informed that this is a practice which has developed in the Magistrates’ Courts. The Supreme Court is of the view that it is a practice which should be abandoned in contentious litigation.
[107] Lest it be thought that this view is the relic of a stilted and now-outdated judicial self-esteem, let me illustrate, by reference to what occurred in this case, how the practice can cause substantial misperceptions prejudicial to the conduct of a fair trial.
[108] Mr Chapman, who is obviously a highly experienced and capable solicitor frequently conducting cases in the Children’s Court, routinely greeted me with the salutation of “Good morning, your Honour” or “Good afternoon, your Honour” each time he announced his appearance at directions hearings and on each day of the trial. In accordance with the usual etiquette of this Court, Mr Moore of Counsel did not. Mr Chapman’s apparent familiarity with the Judge could have caused a misapprehension in the mind of Ms Wilson, already distrustful of the judicial system, that Mr Chapman enjoyed a relationship with the Judge which was something more than merely professional. Such a suspicion should never be allowed to arise. A Judge should not feel compelled to allay such a suspicion by rebuking an advocate for misplaced courtesy.
His Honour went on to eschew like salutation, by a cross-examining counsel of the witness, on resumption after any routine adjournment:
[112] … [A] witness should never be placed in the position of having to greet politely a cross examiner who is an avowed opponent. An advocate should never use this technique to score against a witness. It is far better to avoid the perception that this technique of discrediting a witness is being used unfairly.
[113] For these reasons, the practice of salutations by advocates should be completely abandoned in all Courts in all contentious litigation.
It is noteworthy that the posited foundations of the above critique are those of apparent bias and procedural fairness respectively. Thus, by parity of reasoning, the bench ought be like constrained. The judge ought refrain from any salutation vis-a-vis any or both counsel (the latter lest he or she be observed looking at one side of the bar table), or a witness whose credit is in issue.
It does seem surprising that counsel fall to be criticised for courtesy on account of the advantage it may, or importantly may be seen to garner for his or her client. Overt, even if mild discourtesy to judge or witness surely is more deserving of censure.
Perhaps like most things in life a barrister need maintain a sensible balance in demeanour. That is often difficult in occasional heat of adversarial litigation.
I have written to all heads of jurisdiction to raise the matter for their consideration and elicit a response. I will revert to members when I have heard back.
Most barristers were raised on, and many practise the proverb “All doors open to courtesy”. Suffice it to say, echoing the sentiment of Palmer J in Wilson, the door thus opened may not always lead to a place of easy repose.
As readers may appreciate from previous reviews, the writer is an aficionado of the music of the 70s and 80s. ‘Layla’ – written by Eric Clapton and Jim Gordon, and recorded in 1971 by their band ‘Derek and The Dominos’– is among my top 5 picks of the music of such period.
According to Wikipedia, the song was inspired by a Persian love story of the seventh century, being the tale of a young man who fell so hopelessly in love with a beautiful young girl he went crazy so he could not marry her. In turn it was inspired by Clapton’s secret love for Pattie Boyd, who was married to his friend and fellow musician George Harrison (of Beatles’ fame). Clapton and Boyd eventually married.
The song is unusual because of its approximate 7 minute length, with latter half comprising a non-vocal second movement with quite distinct piano and progressively guitar piece. This was composed by Gordon. In truth it makes the song. This second movement is commonly referred to as a ‘piano exit’.
The song was re-recorded by Clapton in 1992 in an acoustic ‘Unplugged’ performance, albeit without the second movement and thereby about 3 minutes shorter in duration.
The ‘Unplugged’ version won the 1993 Grammy award for ‘Best Rock Song’. In 2004, the original version was listed as number 27 of Rolling Stone Magazine’s ‘500 Greatest Songs of All Time’.
The writer greatly prefers the original version over the acoustic version, but for comparison the YouTube version of each is below. Clapton performs lead guitar and lead vocals in each.
Wikipedia quotes Clapton from 2011:
‘Layla’ is a difficult one, because it’s a difficult song to perform live. You have to have a good complement of musicians to get all the ingredients going, but when you’ve got that … its difficult to do as a quartet, for instance, because there are some parts you have to play and sing completely opposing lines, which is almost impossible to do. If you’ve got a big band, which I will have on tour, then it will be easy to do something like ‘Layla’ – and I’m very proud of it. I love to hear it. It’s almost like it’s not me. It’s like I’m listening to someone that I really like. Derek and The Dominos was a band I really liked – and it’s almost like I wasn’t in that band. It’s just a band that I’m a fan of. Sometimes, my own music can be like that. When it’s served its purpose to being good music, I don’t associate myself with it any more. It’s like someone else. It’s easy to do songs then.
Boyd is also quoted as reflecting:
I think he was amazingly raw at the time … he’s such an incredible musician that he is able to put his emotions into music in such a way that the audience can feel it instinctively. It goes right through you.
Original
Acoustic (Unplugged)
The following is adapted from a Bar Association CPD presentation by the authors on 19 March 2024.
Relevant ethical rules:
The following are the relevant provisions in the Barristers Rule 2011 (Qld) which bear upon the conduct of counsel in conducting witness conferences, both at the conference and as a result of anything said in court about the matters canvassed in conference:
A barrister must not engage in conduct which is:
a. dishonest or otherwise discreditable to a barrister;
b. prejudicial to the administration of justice; or
c. likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.
…
A barrister has an overriding duty to the Court to act with independence in the interests of the administration of justice.
…
A barrister must not:
a. advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or
b. coach a witness by advising what answers the witness should give to questions which might be asked.
A barrister will not have breached Rule 68 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true.
…
A barrister must not take any step to prevent or discourage prospective witnesses from conferring with an opponent or being interviewed by or on behalf of any other person involved in the proceedings.
A barrister will not have breached Rule 73 simply by telling a prospective witness or a witness that he or she need not agree to confer or to be interviewed or by advising about relevant obligations of confidentiality.
…
A barrister who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:
a. has lied in a material particular to the court or has procured another person to lie to the court; or
b. has falsified or procured another person to falsify in any way a document which has been tendered; or
c. has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;
must refuse to take any further part in the case unless the client authorises the barrister to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the barrister to do so but otherwise may not inform the court of the lie, falsification or suppression.
Text treatment:
Scarce is the commentary in texts as to the approach, and methodology, which ought be adopted by counsel in conferring with witnesses prior to trial.
In “Advocacy in Practice” (5th Edition, 2011, LexisNexis) J L Glissan KC wrote ( pages 17-18):
… [T]he [case] narrative should be explored by question and answer. How this is done will depend on the individual witnesses – some witnesses may need to be searchingly cross-examined, especially where they appear to be hedging or embellishing, or to prepare them for anticipated attacks. From this you should build your own proof of evidence … [It is]useful to explain to witnesses, experienced or not, how to give evidence – not what they should say, but the mechanics of giving evidence. This advice will include where to sit, where to look, how to address the court, appropriate clothes to wear and so on … [W]here the witness is likely to come under strong attack, it is best to recognise this in advance. You should safeguard the case the witness is being called to support, and where possible, anticipate and shield him or her from unpleasant shocks and surprises.
Proper approach:
In our opinion the following 10 matters encapsulate the proper approach and methodology.
First, the overarching point of a witness conference is to prepare the witness to give evidence at trial necessary to prove your client’s case theory, and to that end make it as easy as possible for the judge to accept that witness’s evidence.
Second, the conference enables you, as counsel, to finalise the proof of evidence of that witness, enabling the opening of that evidence, adducing that evidence in evidence-in-chief and addressing issues which will be raised in cross-examination.
Third, the conference also enables the identification of documents needed to be tendered through that witness, or otherwise proved, to enable acceptance by the judge of the evidence of that witness, and other witnesses.
Fourth, the conference enables you to reassure the witness about the process and their evidence – in particular if unsophisticated in giving court evidence, or if emotional or subjective – such that they are reasonably calm by the time it comes to give evidence at trial. Have them taken to court in advance to see the layout.
Fifth, and critically, the conference ought identify to the witness the propositions and documents with which they will be challenged in cross-examination, so that they can be ready to address such matters calmly, intelligently and comprehensively.
Sixth, in conference your mindset as counsel ought be to intellectually change sides, putting yourself in the position of opposing counsel cross-examining the witness. That ought include detection of witness character traits (eg irritability, arrogance) which might provide cross-examination pathways to impugn their credit – including with expert witnesses.
Seventh, in cases involving sharp issues of credit, or involving any witness of concern, inquire whether they have prior criminal or regulatory convictions, and whether they have recently – or at all – posted on social media concerning the case issues. Independently, check their SM postings.
Eighth, the purpose of witness conferences, collectively, is to detect your client’s strong and weak witnesses, and potential case theory weaknesses and evidentiary gaps, which in turn can inform inexorable settlement negotiations which will transpire before trial.
Ninth, address formal matters which will assist the witness, such as appropriate dress for court, whether they wish to take an oath or affirmation, the title of the judge if engaged in an exchange (“Your Honour”), the title of your opponent and you (“Madam”, “Sir”, “Ms Smith”), electronic hearing assistance available in the court by T-coil if required, date and time when they will be called, and court hours.
Tenth, for any witness, the ultimate issues for you as counsel are: “Will the testimony of this witness assist or detract from my client’s case theory?,” “Will the court repose confidence in the credibility, or reliability, of this witness?” and “Should – or need (eg adverse inference drawn, possibly, if not)- I call this witness?”
The mantra:
In our view counsel ought rehearse a mantra to each witness. Not only does it comprise a check-list, but it constitutes a course of practice about which evidence can be given in the event of a complaint about counsel’s conduct, and if called upon to recollect – ordinarily well after the event – how they managed the conference with a witness.
Our mantra is something along these lines:
“The purpose of me conferring with you is to discuss the detail of the matters about which you will be asked in court, in Evidence in Chief and Cross Examination. You must answer all questions.
Ethically, it would be quite wrong of me to tell you – and I will not tell you – what to say in answer to any question. I will be struck off as a barrister if I do that. But it is apt for me to discuss with you your manner of general expression in giving your necessarily truthful answers to any question asked of you by me, opposing counsel or the judge.
Truthful answers may consist of a ‘yes’, ‘no’, ‘I do not recall’, ‘I don’t know as I was not present during that discussion’, and sometimes giving a more expansive explanatory answer – in particular to an open question by me in evidence in chief or a ‘no’ answer in cross-examination.
Be succinct, not wordy, in answering. Remain calm as possible and do not anticipate questions – wait for the direct question and answer it directly. You are fully entitled for question to be repeated, or re-phased so you know what is being asked (but you are not entitled to know why a question is asked) .
If the truthful answer to a question asked of you is one you consider embarrassing for you or unhelpful to our case, answer it without hesitation. Evasion thereof will be obvious to the judge and all lawyers and others present, and you will be required to answer anyway.”
A means of underscoring same is to request the briefing solicitor pre-conference to write to the witness to the above effect. Alternatively it could be inscribed by you on a sheet and given to the witness at the outset, and spoken to.
The lessons:
The following are the overarching matters which will assist in staying within the bounds of the above rules.
First, study – and periodically re-study – the Barristers Rules. You are obliged to be familiar with and abide same. Otherwise, take up another career outside the law.
Second, make it clear at the outset of a conference with any witness that their obligation is to tell the truth to the court, irrespective of their view as to whether that makes them look foolish or is unhelpful to the client’s cause. That stated, prepare them by canvassing directly with them the matters with which they need give succinct evidence and will be challenged respectively. All that may lead to you not calling them.
Third, as counsel you are responsible for what happens in conference and court with your witnesses. Do not be dictated to by an instructing solicitor who might prefer a more expedient course to ingratiate themselves with – by “coaching” – a witness as to what they ought testify at trial.
Fourth, avoid the otherwise expedient course of keeping non-client witnesses away from conference with your opponent. Often, as counsel, you will advise that a conference with you ought be pursued with the opponent’s non-client witness. If such witness refuses to speak to you but speaks to the opponent raise that in cross-examination of them , and include a submission at close challenging their objectivity.
Fifth, remember that it is your professional reputation – with the court, and the Legal Services Commission – which is at risk should you be in any way involved in advising or condoning the illicit preparation or “coaching” of a witness, or the adducing of tainted or perjured evidence. Do not go even close to the line. Develop an “invariable conference practice” mantra, so if ever challenged much later as to your conduct, you can give admissible evidence of them.
Welcome to the March Quarterly Issue of Hearsay.
In the last Issue the most significant response – in terms of hits – was to the article by Judge Morzone KC concerning “Court Etiquette: 50 tips on how to behave in and for the courtroom”. For those counsel – in particular junior counsel – who have not had an opportunity to peruse this, it does well repay reading.
In this Issue the lead article concerns Generative AI, with particular focus on use – or, more aptly, future use – by the Bar. Included in this piece is a raft of recent articles across various publications, followed by a comprehensive discussion by Adrian Duffy KC as to where the GenAI path is leading in the short and medium term.
In the “10 Minutes with …” section – I interview not a person, but rather an online platform, namely ChatGPT. Perhaps unsurprisingly, in this space, there was elicited a series of “hallucinations” by way of false case references.
Tony Morris KC has written a detailed, but illuminating article concerning the UK’s Post-Office Scandal. This involved wrongful prosecutions and gaoling of a number of innocent retail post-office operators – and suicide by some of them – by reason of the illicit product of software data.
Mal Varitimos KC writes a colourful article – in more than text – concerning Queensland barristers practising in Papua New Guinea. Charles Matthews reviews the recent inter-state and intra-state victories of the Bar Cricket team. The “Reviews and the Arts” section, edited by Stephen Kiem SC – affords a rich vein of material concerning literature, poetry, film and song.
The Advocacy and Professional Conduct and Practice sections are replete with items of practical interest to barristers, and lawyers, generally.
And there is so much more besides.
Enjoy!
Richard Douglas KC Editor
I do request your contributions to the deputy editors and sub-editors, or me (T: 3218 0620; M: 0417 788713; E: douglas@callinanchambers.com).
The sub-editor is Stephen Kiem S.C. (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book and podcast reviews.
Much of this film is set in the conduct of a trial for spousal murder in the French inquisitorial (cf common law adversarial) trial procedural mode. In truth, however, it is a film about relationships and their imperfection.
The deceased husband, Samuel Maleski, is a teacher and struggling aspiring author. The accused wife, Sandra Voyter, is a successful author. An argument which ensued the day prior to the fall from their home balcony which killed Samuel – such argument illicitly taped by him – is adduced in evidence at trial and retro-viewed in the film. So much is a pivotal part of the screenplay.
Sitting as the proverbial fly on the wall, the viewer can well appreciate the merits of each side of such spousal argument, going to their perception respectively of the life they lead as a family with all its travails. In effect, they conduct their own trial of the cause that is their marriage, but with the viewer as judge and jury.
Commenting upon such exchange in her evidence at trial, Sandra muses:
Sometimes a couple is a kind of chaos and everybody is lost. Sometimes we fight together and sometimes we fight alone, and sometimes we fight against each other; that happens.
In consequence of this exchange, Sandra’s attorney, Vincent Renzi, submits to the court – more harshly – apropos of Samuel:
In his final days, this man isn’t facing a war in his marriage. He’s facing his own failures. Sandra Voyter is only guilty of succeeding where her husband failed.
Further, although the trial procedure is very different to that to which Australian criminal lawyers would be accustomed, the sentiment expressed by Sandra – as to her success or failure at her trial – resonates:
It’s just, you know, when you lose, you lose. It’s the worst thing that can happen. And if you win, you…kind of expect some reward…but there isn’t any. It’s just…It’s just over. Maybe sometimes, we expect too much…
The viewer is left in real doubt as to Sandra’s guilt or innocence.
This is an outstanding film. It’s abiding quality is its authenticity: a film set in picturesque Grenoble in alpine Western France, but bereft of beautiful country or city scenes, flash cars, beautiful people, fashionable dress, romance, sexual intimacy or sumptuous food.
To the contrary, the characters and extras are plain looking people in casual dress (even in court), going about the drudgery of their drab lives, including eating what the rest of us would whether at home or out (Chinese food, no less, in one prominent restaurant scene). Even the family home is in a state of chaotic renovation. The media coverage of the trial is shallow and lurid.
The lead character Sandra is played by Sandra Hüller, an accomplished German actor. Swann Arlaud plays the defence lawyer Vincent, running a defence case theory of suicide by the husband and constantly hounded by the judge and the prosecutor. Milo Machado Graner plays the couple’s visually impaired 11 year old son, Daniel, who engages on his own investigation of his father’s death and gives evidence (twice) at the trial. Without derogating from the quality of other cast members – the writer’s spouse was particularly impressed by the prosecutor’s performance (played by Antoine Reinartz) – those three lead actors are outstanding in their roles. Even the family dog Snoop is good, and ultimately plays a critical role in the trial outcome.
In an apparent appeal to a non-French audience, the lead performers speak often in English to accommodate Hüller’s character Sandra being a German, with diminished fluency in French, who previously lived in the United Kingdom.
The film’s director is the accomplished Justine Triet. Running time is a lengthy 152 minutes.
The writer gives the film a rating of 4.75 (out of 5).
The film was awarded the Palme d’Or at the 2023 Cannes Film Festival, and subsequently Academy Award nominations in the categories of Best Film, Best Actress in a Leading Role, Best Director, Best Film Editing and Best Original Screenplay. It is rated highest in the last category. This review was written prior to the 11 March Oscars’ Award night.*
*Postscript: The film was awarded the Oscar for Best Original Screenplay.
This song was written and originally recorded by John Lennon in 1971 for his second studio album ‘Imagine’.
Following Lennon’s death in 1980 Roxy Music – a pop group created and led by stylish crooner Bryan Ferry – covered it as a tribute to Lennon.
The cover reached number 1 in the United Kingdom and Australia. Lennon’s original recording was subsequently released as a single, charting in the UK and the United States.
Whilst covered many times (92 in all according to the Wikipedia entry for the song), the Roxy Music version, in the writer’s opinion, trumps the rest, and the original.
Roxy Music was formed in 1971 and first split in 1976, but have reformed and toured repeatedly since. They pioneered musically sophisticated elements of ‘glam rock’, provided a model for many ‘new wave’ acts and innovated elements of electronic composition (see Wikipedia entry for ‘Roxy Music’).
Ferry was the lead vocalist and principal songwriter of Roxy Music. Despite being 78 years of age, he continues to perform live.
Ferry has always harboured a particular sartorial style. Michael Bracewell, in his book Roxy Music and Art-Rock Glamour (Faber & Faber 2012) records that writer Peter York described Ferry as ‘an art object’ who ‘should hang in the Tate [Gallery]’.
In 2011 Ferry was awarded a CBE in the Queen’s birthday honours list for his contribution to the British music industry. In May 2023 he released a cover EP called ‘Love Letters’.
The YouTube recording below is also a well produced video. The music aficionado will enjoy the guitar and saxophone solos, and the lengthy synthesiser and whistle fade-out.
This song by ‘The Beatles’ – from their 1968 double album – was written by George Harrison.
According to the Wikipedia entry for the song, it conveys Harrison’s dismay at the world’s unrealised potential for universal love, which he refers to as ‘the love that’s sleeping’; but also reflected the disharmony within The Beatles after their return from studying transcendental meditation in India in early 1968.
In addition to penning the song, Harrison performed the principal vocals and acoustic guitar. Paul McCartney was harmony vocal. Lead guitar was performed by an additional musician, Eric Clapton, no less.
This song was from the 1970 album ‘Let it Be’. It was written by Paul McCartney and credited to him and John Lennon. It was issued as a single a month after the Beatles broke up and became there twentieth and last number 1 hit on the Billboard Hot 100 Chart in the United States.
The Wikipedia entry for the song records the following:
The main recording of the song took place in January 1969 and featured a sparse musical arrangement of piano, bass, guitar and percussion. When preparing the tapes from these sessions for release in April 1970, producer Phil Spector added orchestral and choral overdubs. Spector’s modifications angered McCartney to the point that when he made his case in the English High Court for the dissolution of the Beatles’ legal partnership, McCartney cited the treatment of the song was one of the six reasons justifying the split. Later versions of the recording with simpler instrumentation were subsequently released by the [former] Beatles.
The writer, with respect, prefers the orchestral version. Different folks, different strokes!
The song is regarded as one of the Beatles’ best. It featured in the 2019 movie “Yesterday” as being the lead character Jack’s song supposedly written in 10 minutes in a competition with Ed Sheeran.
The abovementioned orchestrated version.
The simpler originally recorded version.
The Obligation of the Barrister to Engage in Practice for the Benefit of the Community
In my general reading over the Christmas break I came across, and in turn researched, the not uncommon phrase “noblesse oblige”.
Such language, of course, is of French origin but – of greater interest – it resonates in the conduct of practice as a barrister.
At the French royal court, nobles – by dint of their status and wealth – were expected to attain high standards of probity in the discharge of their duties apropos of the land they controlled and the citizens who worked that land or provided services in relation thereto. By parity of reasoning, in turn, such standards were also expected of lawyers, having regard to their education and cognate ability to enjoy substantial earnings, in the provision of legal services.
The concept harbours an earlier – indeed biblical – pedigree. In Luke 12:48, St Luke wrote:
And to whomsoever much is given, of him shall much be required: and to whom they commit much, of him they will ask the more.
The dictionary definitions thereof are as follows:
Macquarie Dictionary – an expression suggesting that a member of the “nobility” has an obligation to display generous and honourable conduct.
Cambridge Dictionary – the idea that someone with power and influence should use their social position to help other people.
A useful exposition of the obligation owed by a barrister, in this context, was exposed by Professor Peter Gerangelos, in an address to law graduates at the University of Sydney in 2019: (2019) 41 Sydney Law Review 417. He wrote:
… [L]aws cannot be sustained by their own devices, but rather by those lawyers who … see they belong to one of the great foundational, liberal and learned professions whose maintenance in its form as a liberal and learned profession – and not just another trade or business – is essential for the maintenance of ordered liberty in a democratic society and those civil liberties which enable the enjoyment of the fruits of civilised life, for the cultivation of an ethos in society which, without denying individual’s obligations to civil society, maintains that the law and the State exist not for their own sake, but rather to facilitate human flourishing; but no person – no matter how mean or otherwise disreputable – is ever to be regarded as a means to an end, but an end in themselves, a sacred, enviable and treasured end, for which the law and the State exist. It is not to be wondered that the French attributed nobility to the legal profession: noblesse de robe – the nobility of the robe, or the gown – referring to the gowns being worn here today and in the profession. With true nobility, however, comes obligation: noblesse oblige.
(emphasis added)
In New South Wales Bar Association v Livesey [1982] 2 NSWLR 231 at 262-263, Reynolds JA wrote in respect of a barrister who the Bar Association sought be struck off the role for his manner of criminal practice:
This case illustrates the dangers and difficulties that lie in the path of a barrister who ignores the conventions, traditions, safeguards and self- imposed restrictions under which an independent Bar has functioned for centuries. This young man has no concept of the “noblesse of the robe”, the collegiate pride of a learned profession. Despite his disavowal, it seems to me he has, whilst accepting the status of a barrister, chosen to work outside the recognized profession with results which have proved disastrous to him. He has no chambers in the accepted sense, he owns no wig and gown, possesses a minimal library and has distanced himself from his colleagues in the profession. He has allowed himself to become too close to his criminal clients and lost the detachment which is essential to proper practice. He has willingly allowed himself to be placed in a position where he becomes a witness in criminal trials and has sought to intrude himself into situations where persons charged with crime are escorted in custody by police officers. This is not barrister’s work and may explain the erosion of proper standards which this hearing has exposed. He may be a victim of his early experiences at the Bar and it may be that his motivation to do the type of work he has done for little or no money is good but, granting that this is thecase, I am forced to the view that his present unfitness is demonstrated and that the relief which the Bar Association seeks should be granted.
(emphasis added)
The “noblesse of the robe” entails the need for barristers to fully appreciate, and deploy their skills, on the footing that:
They are privileged to enjoy a tertiary legal education and advocacy skills with a consequent obligation to serve and deploy same for the benefit of the public generally, with the prevailing obligation being to the administration of justice (including the court).
Their self-interest should never interfere with the discharge of the above obligation.
Their practice ought be undertaken as a member of a collegiate profession, and strictly in accordance with the professional ethical rules and mores.
In sum, the practice of a barrister, in truth, is a noblesse oblige. It is a privilege not to be squandered or diminished.
