Mark Finnane’s biography of Sir John Barry, long term judge of the Victorian Supreme Court, will be of particular interest to lawyers. Although, from time to time, Justices of the High Court are the subject of scholarly attention resulting in large scale biographical works,3 it is more rare for a judge of a State Supreme Court to receive similar attention. Such works provide an historical perspective of aspects of our profession not otherwise readily available.
Sir John’s contribution to the study of criminology is, no doubt, the reason why Professor Finnane was moved to devote several years of his own life to this work. However, Sir John’s experiences, first, as an articled clerk and then as counsel with chambers in Melbourne are fascinating to reflect upon and to compare, in my case, with my own experiences since commencing articles in early 1976.
Jack Barry began his articles on 26 April 1921 with the firm of Brayshaw and Murphy. His master, Luke Murphy, was something of a personality in the world of criminal law practitioners of that era. Professor Finnane is greatly assisted by the fact that Barry, having come to Melbourne from Albury, corresponded, regularly, with his mother, Nettie, with whom his relationship was close. The book is able, through the eyes of the young articled clerk, writing to his mother, able to reconstruct much of the social history of Melbourne in the 1920s. Of particular interest is the police strike which occurred in the lead up to the holding of the Melbourne Cup in 1923. Young Jack ventures out to see the crowds of “mostly the lower & criminal element” boosted by even larger numbers of the “merely curious”. He also notes the vicious way in which the special constables, sworn in to break the strike, moved in to clear the crowds and the indiscriminate violence they used to achieve their object.
Sir John Barry was a life long opponent of capital punishment. As a lawyer who practised mainly in the area of criminal law and, later as a judge, he was involved in cases where capital punishment was a reality. As early as 1922, he observed closely the trial and conviction of Colin Ross for the murder of 12 year old Alma Tirtschke, a case where the guilt of the accused remained controversial after his unsuccessful appeals and execution.
In the following year, Barry’s master was engaged to act for Angus Murray, an associate of Melbourne gangster, Squizzy Taylor, charged with murder as a result of a robbery at Glenferrie Railway Station which went horribly wrong and resulted in the death of bank manager, Thomas Berriman. Barry was involved in taking statements and preparing the briefs for the case. Although Murray had not fired the shot which resulted in Berriman’s death, he was sentenced to death and, after appeals, including to the High Court, were unsuccessful, was hanged at Melbourne Gaol.
Barry’s opposition to capital punishment was expressed through letters to the press in 1936 when serial killer of girls between the ages of six and sixteen, Arnold Sodeman, failed in his defence of insanity despite three medical witnesses testifying that he was insane at the time that he carried out the killings.
Despite being on the bench, Barry leant private support to campaigns, in 1962, to save the life of Robert Tait (this was successful) and in 1964, to save the life of Ronald Ryan. The latter was unsuccessful in saving the life of Ryan but was effective in, ultimately, bringing the use of the death penalty in Australia to an end. Barry’s writings on capital punishment were reproduced and circulated by the Howard League, a body devoted to campaigning against the death penalty. His article, published in the Sydney Law Review in 1958, Hanged by the Neck Until… was extensively quoted in debates on the subject throughout the 1960s. Sir John worked closely in these campaigns with the young Barry Jones.4
Sir John Barry was passed over for appointment to the High Court by the Chifley cabinet in 1946 for Queenslander, Sir William Webb, another example of a Labor government taking the conservative option in judicial appointments. On 14 January 1947, the Victorian Attorney-General appointed Barry as a judge of the Supreme Court of Victoria. He remained a judge of that Court until his death on 8 November 1969.
Sir John Barry is remembered most fondly by criminologists and is regarded as, in many respects, the father of the profession in Australia. His interests in other disciplines informing the study and practice of the law were evident through his active involvement in the early proceedings of the Medico-Legal Society of Victoria during the 1930s. His work in the field of criminology was recognised by his appointment, on a number of occasions, to lead the Australian delegation to the United Nations Congress on Crime Prevention.
Sir John’s reputation in the field of criminology, however, is most associated with his biography of Alexander Maconochie, the pioneering administrator of the penal settlement on Norfolk Island in the early days of the Australian colonies. Australian historians had tended to dismiss Maconochie as an impractical dreamer. Barry’s work, finally published in 1958, Alexander Maconochie of Norfolk Island: a study of the pioneer of penal reform, painstakingly documented Maconochie’s life. Barry managed to place Maconochie’s Norfolk Island work in the broader perspective of the general movement for prison reform. In doing so, Barry managed to retrieve Maconochie’s reputation from the less respected position to which it had been consigned by Australian historians.
Mark Finnane does not restrict his work to the cloistered halls of academia. Some years ago, now, I benefited greatly from his quietly spoken but very wise words when we both served on the management committee of Prisoners’ Legal Service. Nonetheless, Mark’s academic work is of the finest quality. JV Barry: A Life reflects this quality. It is, itself, painstakingly researched but presented in an engaging and accessible way. Its publication continues the fine publishing tradition of UNSW Press. It is certainly excellent value at the publisher’s price of $49.95.
As this reviewer mentioned at the beginning, this book has particular interest for lawyers. Beyond that, because Sir John Barry was himself not far from the social battles of his time, Mark Finnane’s work will hold interest for anyone interested in the social and political history of Australia.
Sir John Barry’s tireless campaigning against capital punishment still has particular relevance for Australians. With members of the Bali 9, including Brisbane’s Scott Rush, facing the prospect of a firing squad in Indonesia, the death penalty is not as far removed from Australia as the lessons from Ronald Ryan’s death in 1964 might have promised. The involvement of Australia’s federal police force in facilitating the arrest of Scott Rush and his colleagues, in circumstances where they were likely to be sentenced to death and despite Australia’s ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights, raises questions about Australia’s commitment to its treaty obligations that would have troubled the mind of Sir John Barry if he were still among us.
There are many good reasons to read JV Barry: A Life.
Stephen Keim SC
Footnotes
- Mark Finnane has achieved the distinction of being an Australian Research Council Professorial Fellow. Professor Finnane is a research professor at the Centre for Public Culture and Ideas at Griffith University.
- Established in 1962, UNSW Press is owned by the University of New South Wales but has its own board of management. It may be located at http://www.unswpress.com.au/ .
- See, for example, Barwick, by David Marr, George Allen & Unwin, first published in 1980.
- Future television quiz star, Minister for Science in the Hawke governments of the 1980s and, later, President of the Australian Labor Party.
