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J V Barry: a life.

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Monday 10 December 2007

Mark Finnane, ARC professorial fellow, Griffith University


JV Barry: A Life

When Prime Minister Howard launched his Guide to the Teaching of Australian History it was an important signal of the value placed on a country's knowledge of its own history. What the Guide names or leaves out is also a sign of the things we want to remember, or forget.

The Guide finds no place for mentioning a significant Australian achievement, the abolition of the death penalty. That's a pity, because the story of its abolition deserves greater recognition.

Not least because there are always those who would like to see it's return.

Yet the political consensus in Australia seems to be that the death penalty will stay out of the list of punishments available in Australian courts. It was not always so.

One person who long fought the campaign for abolition was a Victorian judge who also had the unenviable task of pronouncing the death sentence on a man appearing before him. This was John Vincent Barry, a judge of the Victorian Supreme Court from 1947 to his death in 1969 a person of remarkable talent and ethical commitment.

In the 1930s Barry was a leading criminal lawyer who played a central role in founding the Australian Council for Civil Liberties. As a judge some time later he did much to develop a more modern approach to divorce. He was the first Chairman of Australia's first Parole Board. He was also a historian of convict Australia, and a pioneering criminologist of international distinction.

In 1965 Justice Barry was the trial judge when a man appeared before him charged with three murders, to which he had confessed, and to which he had pleaded guilty. There was no evidence of insanity.

Unlike Queensland, which had abolished the death penalty as long ago as 1922, Victoria not only had the penalty on its statute books, but had a Premier, Henry Bolte, who was prepared to use it.

Barry had no choice but to pronounce the death sentence. When he did so he omitted the conventional addendum, which contained the words, 'and may God have mercy on your soul''. As he said to his associate 'it is a bloody impertinence to say that to a man''.

Distressed by the experience of condemning a man to death, Barry was ill the next day. But convention required that the Cabinet of the day hear from the judge presiding over a case before confirming the sentence, or commuting it. On this occasion Barry was successful in persuading the government that the prisoner should not hang, but serve a lengthy prison sentence.

There were few issues about which Barry felt as strongly as the death penalty. In the 1920s, while still a law clerk, he had helped prepare the unsuccessful defence of Angus Murray, the last person hanged at the Old Melbourne Gaol. In the 1930s he conspired with his legal mentor Eugene Gorman in a letter writing campaign in Melbourne newspapers to protest the use of the death penalty in the case of an insane serial killer.

In 1945 Barry was a prominent lawyer, considered likely to be appointed to the High Court of Australia. He was also involved in numerous inquiries into the conduct of the war. In the course of one inquiry he learned that the Australian Army was still engaged in the execution of New Guinea villagers accused of collaboration with the Japanese. Barry's advised Canberra of what he had learned. His intervention helped persuade the Australian government to order the cessation of these executions.

Appointed to the Victorian Supreme Court in 1947, Justice Barry avoided as far as possible hearing criminal cases that might present him with the dilemma of pronouncing a death sentence. He became a founding figure of Australian criminology, urging the importance of alternatives to violence and retribution in the state's response to crime.

On stage and behind the scenes Sir John Barry became known as the leading judicial advocate of abolition, lending support to lawyers and other activists and reformers urging an end to the death penalty. His and their advocacy did not save Ronald Ryan from the gallows in 1967. But they did help to ensure that this would be the last hanging in an Australian jurisdiction.

That was a signal achievement and deserves to be included on any list of Australian milestones.


Mark Finnane  

ARC Australian Professorial Fellow  

Griffith University.