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History to unearth court's untold stories

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Cite as: March 2015 89 (3) LIJ, p.20

As the Victorian Supreme Court approaches its 175th anniversary next year lawyers are asked to contribute to documenting its history.

Do you recognise the men in this photograph below? The gentleman in the apron and bowler hat who is measuring a skull found in bushland in the 1920s is Dr Crawford Henry Mollison, then government pathologist, but the rest are unknown and legal historian Dr Simon Smith wants to know who they are.

The author is seeking details and stories about the Supreme Court of Victoria for the history he is editing to coincide with the Court’s 175th anniversary in 2016.

An adjunct senior research fellow with the Monash University Faculty of Law, Dr Smith said there is a wealth of untold stories about the Court, some of which may have been handed down through families, and he is asking members of the legal profession to help unearth them.

“I am looking for stories of litigants, lawyers, barristers and solicitors who have been significant to the Court,” Dr Smith said.

The Supreme Court history’s 15 chapters, being individually written by experts in the field, cover the judiciary, the Court buildings – there have been three, the first a hut on King Street – divorce law, barristers’ clerks, the Court and the media, key decisions, changing jurisdictions, legal education, the Court and the bush, capital crimes and death, science and justice – this last focusing on forensics as they illustrate the Court’s history.

The Court has had a central role in supervising the processes of death – “murder, who inherits, all the things that flow from death” – going back more than a century, according to Dr Smith. The forensics chapter, which is co-authored by the Victorian Institute of Forensic Medicine head of international programs Stephen Cordner and features the skull photograph, investigates when fingerprint evidence became accepted by the Court and when the use of DNA evidence began.

That is perhaps one of the juicier chapters planned. But the history, although intended to be accessible to the lay reader rather than an academic tome, is a serious attempt to document the Court’s history in a social, thematic way, rather than as a traditional chronology.

“We are trying to be a little bit quirky,” said Dr Smith whose previous books have explored colonial lawyers who were struck off (Barristers Solicitors Pettifoggers: Profiles in Australian Colonial Legal History) and vexatious litigants (Maverick Litigants). He plans to ensure some of the more flamboyant characters associated with the Court find a place in the history.

Dr Smith is writing the chapter on court supervision and control of lawyers who, in the Court’s early days, were not eligible for admission if they had been in trade.

“The other thing I am interested in is the Court going on circuit to the bush. With the gold rush there was a need for justice in the bush. It was like royalty coming to town.” Royal Historical Society of Victoria (RHSV) president Dr Don Garden is writing that chapter.

Original documents will also be reproduced in the Supreme Court history. One is the Women’s Disability Removal Act 1903. It gave women the chance to become lawyers, with a woman named Flos Greig subsequently becoming the state’s first female law student and the first woman to practise law.

Dr Smith said he hoped the history project would prompt more study about Victoria’s legal history.

“One of the things I am hoping is that this project will stimulate more historic study,” said Dr Smith, former vice-president of the RHSV which has been engaged by Chief Justice Marilyn Warren to produce the publication.

“A lot of New South Wales legal history has been written but not so much in Victoria. They had a 50 year start.”

The first lawyers to arrive in Australia were convicts – and they landed in NSW, of course – and the first Supreme Court was established in NSW in 1825. In January 1841, a Victorian Supreme Court was vested with the jurisdiction to hear indictable offences and in March of that year, Justice John Walpole Willis, became the state’s first Supreme Court judge, sitting in the humble hut on the corner of King and Bourke Streets pictured here.

As the Supreme Court approaches its 175th anniversary next year, members of the legal profession are asked to contact Dr Smith with any stories or information of interest. (Email simon.smith2@ monash.edu).


SUE GREEN

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