“QUOTEWORTHY” 1986

1. “A submission with the obvious effect of kindling speculation in the minds of jurors, is not deprived of its thrust by a formal incantation imploring them not to speculate. Our system of criminal justice depends to a very great degree on counsel performing properly their highly important functions. If justice is not to miscarry the rulings of the trial Judge must be respected and complied with, in substance as well as form. It is just not open to counsel to circumvent such rulings by colourable devices.” per McGarvie J in R v Ahlstrom [1985] VicSC 580, Full Sup Ct, Vic, 15 November 1985.

2. “It is my opinion that new trials should now be ordered. The previous trial took 18 days. It has recently been estimated that a typical trial in this Court costs in the order of $7,200 a day without including the cost of providing buildings and equipment (Shorter Trials Committee, Report on Criminal Trials [1985] p7). On that basis the trial together with the plea of the sentence for manslaughter and this appeal would have cost some $150,000. If there are new trials this sum has been wasted: witnesses and the accused will again have to endure the trauma of a trial. The law’s reputation for efficient, reliable operation will have been diminished. Eighteen days of a limited resource, the trial time of the Court, will also have been wasted if there are new trials. In my opinion, in the interests of the efficient and effective operation of the system of criminal trials, there is a pressing need for the law of self-defence to be returned to a simple form. In some areas the excuse for the law becoming complex is that the activities it regulates have become complex. There is not that excuse in the area of self-defence. The way that people kill, wound and assault each other has not changed much nor have the means of self-defence.” per McGarvie J in R v Lawson and Forsythe [1986] VicRp 53; [1986] VR 515; (1985) 18 A Crim R 360, Vic Sup Ct, 18 December 1985.

3. “The balance of convenience is in my opinion strongly in the plaintiff’s favour. If the defendants continue with their picketing, in the form in which they have chosen to conduct it, they may well succeed in forcing the plaintiff family company out of business. This indeed would seem to be their object, although I find it extremely difficult to rationalise such apparently stupid and nihilistic acts.” per Murphy J, in Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia and Others [1985] VicSC 633, 12 December 1985, Vic Sup Ct.

4. “The long tradition of Prosecutors is that they should perform their task as ministers of justice rather than as advocates seeking a particular result. It is, of course, clearly their task to present the Crown case fairly and fearlessly but to present it in a detached way and not to appear to urge a conviction. Moreover, experience suggests that the fairer the Prosecutor the more devastating so far as the defence is concerned. Juries have been known before now to react against over-zealous Prosecutors.” per Young CJ, in R v Bazley [1986] VicSC 258, (1986) 21 A Crim R 19, Vic Sup Ct, 16 June 1986.

5. “The applicant has chosen to lead a life outside the pale of human behaviour, as understood in this community. He has to serve a long sentence. He has gambled for high stakes and the gage is now forfeit.” per Starke J, in R v Kelcey [1985] VicSC 156, Vic Sup Ct, 22 April 1985 in refusing an application for leave to appeal against a sentence of 25 years’ imprisonment with a minimum of 20 years for several counts of armed robbery and aggravated rape.

6. “Indeed, if the view propounded on behalf of the Director-General in the present matter, namely, that an appeal lies as of right from every intermediate decision of a question of law in the course of the hearing by the Tribunal of an application to review, be accepted, the result would be that the individual subject who challenged a decision of the Executive before the Tribunal would not only have no assurance of an orderly and reasonably prompt resolution of his or her case by the Tribunal but that, in confronting the Executive, even if only to claim a widow’s mite, he or she would be stepping into a maze in which the financial ruin of a myriad of possible appeals awaited at the whim of those who fund their enthusiasm for the fray, not from their own purses but from the long purse of Government.” per Deane J, in Dir-Gen. of Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571; (1980) 47 FLR 80; (1980) 3 ALD 161 at p181.

7. “Once again this case raises the problem of the proper construction and effect of ten infamously obscure words – “Warranted free …. from the consequences of hostilities or warlike operations”. It is to me, personally, a melancholy reflection that during my last ten years at the Bar I was compelled, as advocate or arbitrator, to spend more time on the consideration of the effect of these ten words than on any other problem. They come back now to me as crambe repetita, and the cabbage is of the stalest.” per MacKinnon LJ, in Yorkshire Dale Steamship Company v Minister of War Transport [1942] AC 691; [1942] 2 All ER 6; [1942] 1 KB 35 at p43.

8. “All these are cases where the judges have decided, avowedly or not, according to what is best for the public good. I know that over 300 years ago Hobart CJ said the ‘Public policy is an unruly horse.’ It has often been repeated since. So unruly is the horse, it is said [per Burrough J in Richardson v Mellish [1824] EngR 715; (1824) 2 Bing 229 at 252; 130 ER 294], that no judge should ever try to mount it lest it run away with him. I disagree. With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles. It can leap the fences put up by fictions and come down on the side of justice, as indeed was done in Nagle v Feilden [1966] 1 All ER 689; [1966] 2 WLR 1027; [1966] 2 QB 633. It can hold a rule to be invalid even though it is contained in a contract.” per Lord Denning MR, in Enderby Town Football Club Ltd v Football Association Limited [1971] Ch 591; [1971] 1 All ER 215; (1970) 3 WLR 1021, 1026.

9. “What then is to be done? I think we should not follow The Mandarin Star. It was decided per incuriam. It is easier for me to say this than it was for the judge or for my brethren here. But even if it was not per incuriam, I am going to risk the disfavour of the House of Lords and say under my breath that we are not bound by our previous wrong decisions, reminding myself of what Galileo said when he was likewise condemned for heresy: ‘E pur si muove’, ‘And yet it does move’.” per Lord Denning in Shell International v Gibbs (1982) 1 All ER 1057 at 1063-4.