Asche, Austin --- "Opinion" [2001] AltLawJl 43; (2001) 26(3) Alternative Law Journal 110

• OPINION
• 'There've been some changes made'

OPINION

'There've been some changes made'

An anniversary crept up on me. I realise, with something of a shock, that this year marks the fiftieth year since my admission as a barrister and solicitor of the Supreme Court of Victoria.

No, I am not going to bore you with reminiscences of what Kipling calls 'those two imposters', triumph and disaster. A barrister gets a share of both and sometimes deserves the accompanying praise or blame but more frequently doesn't. Better to reflect on some then and now situations. I don't pretend to be inclusive. Random shots.

Some changes now appear so obvious that one wonders what all the fuss was about. When I came to the Bar there were no women jurors and there were many eminent practitioners (male) who hotly opposed their inclusion.

Except that juries as a whole are probably more sophisticated than 50 years ago I cannot see that any drastic change in verdicts has been brought about by the inclusion of women on juries and they have proved just as capable of understanding and applying the concept of reasonable doubt-despite A.P. Herbert's claim in one of his well-known 'Misleading Cases' that there was no such thing as a reasonable woman.

There were a few women practitioners and their cause was irresistibly advanced by the superb Roma Mitchell whose competence and legal learning so far exceeded most of her male contemporaries that no accusation of tokenism could possibly be levelled against her when in due course she became a QC and, later, a Supreme Court judge (and, still later, Governor).

The appointment of women judges and magistrates is a natural progression that has neither raised nor lowered standards. As with males so with females there is the usual variation from excellent to not so excellent.

The middle class remains generally excluded from serious litigation, which can only be indulged in by the very rich or the very poor; the former because they can afford it, the latter because they can't. It is good that there is more legal aid but nothing has changed for the middle class. A Supreme Court action can still mean ruin or a great deal of financial hardship.

There is still a perception of delay, although I use the word 'perception' to acknowledge that much has been done in the last decade by case management. Unfortunately the gains achieved have often been negated by the increasing length of trials. So there is still a public perception of delay. This seems to have always been with us. Hamlet reflected that 'the law's delays' made suicide an attractive prospect and Dickens wrote Bleak House as a savage attack on the in­ tolerable ponderosity of the Chancery Courts. Perhaps we have made up some ground. No judge these days could get away with Lord Eldon's famous remark- 'Having had doubts upon this Will for twenty years there can be no use in taking more time to consider it'.

Some things have improved. Relentless cross-examination of female complainants in sexual assault cases used to be permitted on the theory that any woman who could be shown to have consented in earlier and different circumstances must necessarily be immoral and untrustworthy. There is now much greater judicial control of this sort of approach and less tendency of juries to draw adverse conclusions from it. Similarly children are not forced to give evidence in the forbidding atmosphere of the courtroom.

Divorce was often a degrading process for the parties. Because it was based on 'fault' one party had to be 'guilty' of a matrimonial 'fault' (desertion, adultery) and the other party had to be innocent. If both had erred neither got the divorce. Playing the game of goodies and baddies was important because, mostly, spoils went to victor.

What has alarmingly increased is the length of trials. Certainly we had the odd blockbuster some decades ago, but they were rare. Now there seems to be no novelty if a case (criminal or civil) goes for a month or more. Apart from the obvious evils of expense, undue complexity and obfuscation, there is a hidden and especially worrying aspect of long criminal trials. They cause such a serious disruption in the employment and home life of the citizen who serves on a jury. Alternatives may be suggested which may very well constitute a threat to the whole jury system.

Appeal Courts must bear some responsibility here. May one respectfully whisper that some appellate judges are the tiniest bit overly analytical? To escape the kiss of death ('with respect, we find it surprising that the learned trial judge neglected to consider ...') the trial judge strives to cover every possible contingency. So do counsel who, in a far more critical age, are understandably concerned lest their clients reproach them (or worse) for sins of omission.

Of course one should not go to the other extreme. It is related of Lord Hewart LCJ (a very robust judge) that, before going into the Court of Criminal Appeal, one of his brother judges said to him, 'Please don't dismiss the appeal before I have had time to sit down'.

There will always be problems and changes in the law. I have mentioned just a few. Lawyers will survive and remain honourable and efficient, serving their clients well. There will always be a tiny minority of rascals. But they are no more in proportion than when I commenced at the Bar.

The practice of the law is clearly more complicated and specialised than 50 years ago. But it remains fascinating, intellectually stimulating, often exciting and always demanding. If you don't find it so, depart.

Austin Asche

The Hon. Austin Asche AC QC is a former Administrator of the NT, a former Supreme Court and Family Court judge, a former Chief Justice of the NT and is currently President of the NT Law Reform Committee.