John Vincent Barry

Biographies of Australian judges are rare. Philip Ayres’s notable biography of Sir Owen Dixon appropriately acknowledged his unrivalled standing as a jurist from his appointment to the High Court in 1929 to his retirement in 1964 after twelve years as Chief Justice. Professor Mark Finnane’s biography of Sir John Barry is a welcome extraction from this underworked lode. Barry was appointed on January 14, 1947, to a place on Victoria’s Supreme Court created for him by the Cain Labor government. Knighted in 1960, he died in office aged only sixty-six in November 1969.

Barry was a much-published author and an indefatigable correspondent. Relying on interviews and more than 10,000 of Barry’s letters, Finnane has produced a workmanlike biography which deserves to be read widely, whatever this reviewer’s reservations. The quotations in this article are Finnane’s unless otherwise indicated.

John Vincent (Jack) Barry was born in Albury on June 13, 1903, the eldest of four children of William Edward Barry, a house painter of Irish parentage, and of Sara Lena Jeanette Keene. Jack’s mother Nettie, of Protestant origins and the more dominant parent, predeceased him by only three years. Jack, like his siblings, was raised as a Roman Catholic but his mother was agnostic by temperament, despite that church having hallowed her marriage and, in accordance with Jack’s wishes, her burial. Jack was an agnostic by conviction from early manhood.

While boarding at St Patrick’s College, Goulburn, on a scholarship, Barry developed a powerful intellect, became a voracious reader and corresponded with his mother in precocious terms. Much as the Christian Brothers’ teaching was to his benefit, their discipline left him with a lasting abhorrence of corporal punishment. The execution of Colin Ross in 1922 and Barry’s experience as a law clerk in preparing the defence of Angus Murray—hanged for murder in April 1924—confirmed him as an opponent of capital punishment.

The Barry family’s straitened circumstances denied him a full-time university education. He completed the articled clerk’s course in Melbourne’s Faculty of Law and was called to the Bar on May 3, 1926. He graduated as Bachelor of Laws only in 1963.

Eugene (Pat) Gorman, Angus Murray’s counsel, accepted Barry as a pupil. A legendary figure both as advocate and racehorse owner, Gorman became a King’s Counsel in 1929 and was knighted in 1966, the year Barry became Senior Puisne Justice. Gorman claimed that their roles were reversed—the pupil “at once undertook my education and despite occasional pessimism, he never entirely abandoned his efforts”.

In 1928 Barry was Gorman’s junior in Ernest Kleinert’s trial for murder. Kleinert was acquitted after the jury disagreed at the first trial. Barry became renowned for his masterly cross-examination of Professor William Young of the University of Melbourne and Charles Taylor, the government analyst. His interest in the overlapping areas of science and law was widened on becoming foundation secretary of Australia’s first Medico-Legal Society.

Until 1937 Barry had successfully defended as junior or sole counsel seventeen charges of murder. Only then did he first hear a client, Rupert Davies, being sentenced to death. Barry’s appeal to the High Court on his behalf was allowed, and the prosecution was abandoned after two subsequent trials resulted in hung juries.

Barry became a King’s Counsel in 1942, at thirty-nine the youngest then practising at the Victorian Bar. His marriage in 1930 produced a daughter and a son. Widowed in 1943, he remarried in 1951 and fathered a daughter.

Barry joined the ALP in 1939 and was a member of its Victorian State Executive from 1945 until his appointment as a judge. In 1946 the Chifley government considered him for a High Court appointment opened by its ultimate decision to raise its numbers to seven from the six at which it had been fixed since 1930. Sir William Webb, the Chief Justice of Queensland, was chosen. Some of Barry’s cases before this professional setback are worth noting.

Jack Galbally, “one of the most frequent sources of Barry’s briefs”, briefed him in 1939 to appear before a Royal Commission for Thomas Tunnecliffe, Speaker of the Legislative Assembly since 1937. John Wren, a millionaire entrepreneur and “alleged Labor Party fixer”, met Tunnecliffe’s legal expenses. A minister in three minority Labor administrations (two more than Finnane acknowledged), Tunnecliffe led the Victorian Parliamentary Labor Party from 1932 until 1937 when John Cain Snr succeeded him. A photograph of Barry wigged and robed purports to depict him as he appeared before that Royal Commission, when the dress code would have been suit and tie.

The government of Mr A.A. (later Sir Albert) Dunstan appointed Mr Justice (later Sir Charles) Gavan Duffy as Royal Commissioner to inquire “into the allegations that interests associated with money lending or the milk industry had offered bribes for parliamentary favours”. Finnane revealed his unfamiliarity with Victorian politics by claiming that Dunstan led a “conservative” government in 1939 and a UAP government in 1941. Dunstan led the Country Party in governing alone from 1935 until 1942, supported by Labor from the corner benches. Dunstan as a Country Party minister had served in a coalition with the UAP which Sir Stanley Argyle formed in 1932 after defeating Labor in a landslide. In the 1935 election both parties campaigned as a coalition against Labor, but Tunnecliffe subsequently outmanoeuvred the UAP by offering to support the Country Party in office. Its subsequent withdrawal from Argyle’s coalition obliged him to form a minority UAP administration and, when Country Party and Labor members voted to displace it, the UAP was consigned to the Opposition benches.

Finnane claimed that Dunstan in 1939 had been under “some pressure” in appointing this Royal Commission. He omitted to mention, however, that the allegations of bribery, first advanced in general terms in Truth, were aired more specifically before a Select Committee of the Legislative Council as involving Labor members in addition to Tunnecliffe—W.P. (William) Barry, Thomas Hayes and Pat Kennelly.

Kate White, in her biography of John Cain, noted that the Commission, while dismissing any suggestion of impropriety over the Money Lenders Bill, revealed that:

the Melbourne and Metropolitan Dairyman’s Association Limited had set up a parliamentary Defence Committee … to oppose the [Milk Board] bill. Despite evidence that these men [whom she named] had planned to collect £1000 for the fund, that they had approached the Speaker [Tunnecliffe] and perhaps Labor Members Kennelly, Hayes and Barry, the report concluded that no bribe was offered to, or accepted by, any Member of Parliament. However, the Report did add, ‘that [they] entered into an agreement to bribe Members of Parliament’.

However gratified Jack Barry must have been that Tunnecliffe was let off the hook, it is doubtful whether his advocacy and laborious preparation produced this outcome, although John Wren effusively claimed this in a letter quoted by Finnane.

Barry was appointed Counsel Assisting the Royal Commission appointed by the Curtin government to inquire into the Japanese bombing of Darwin. The Royal Commissioner was Mr Justice (later Sir Charles) Lowe. Herewith an edited version of Finnane’s summary:

Wartime conditions meant that the reports were not made public until 1945 … Privately Barry was not entirely happy with the report—he would have been even more critical of the local administration … [He] had a dim view of the Territory’s administrator Charles Abbott; he thought that Lowe had wrongly rejected an allegation that the Administrator had removed government property on the day of the raid, an allegation supported by police and a Darwin judge. Aggrieved by the Commission’s refusal to allow him legal representation, Abbott thought no better of Barry, condemning the counsel assisting the Royal Commissioner for having acted more like a Prosecutor.

Counsel assisting Royal Commissions often see themselves, however inappropriately, as prosecutors.

In 1943 Lowe again sat as a Royal Commissioner, with Barry appearing this time for Eddie Ward, member for East Sydney. This inquiry arose from Ward’s statements as Minister for Labour and National Service regarding Australian defence plans in the event of a Japanese invasion. Ward charged that the previous non-Labor administration had “considered a defence plan under which northern and western Australia, in a line drawn from north of Brisbane to the head of St Vincent Gulf, would be surrendered to Japanese forces if they invaded the country”. This charge was conclusively disproved.

Only in February 1942—some months after Labor assumed office—was anything remotely like this plan considered at the highest level. The Advisory War Council, representing government and opposition, then unanimously rejected a plan geared to a concentration of defence forces in locations between Brisbane and Melbourne. But “there was no ‘Brisbane Line’ and no map”. The Opposition parties were handicapped in being unable for security reasons fully to disclose this in responding to Ward’s charges—charges which Curtin did nothing to discourage and which other ministers openly supported. Curtin, however, could not contradict his predecessor but one, Robert Menzies, who declared in the House: “Every record of the Department of the Army and every relative record of the Advisory War Council have been searched, and there is no such plan before February 1942. That is a fact.”

While conceding this, Ward then made the claim, on which he later wobbled, that he had been “most reliably informed that one important report is now missing from the official files”. Lowe was required to test its reliability.

Barry was briefed by a Melbourne solicitor, Frank Brennan, Attorney-General in the Scullin Labor Government (1929–31). Barry’s remit was to rise “to the challenge of developing a strategy to limit the damage to the stood-down minister”. Barry submitted that absolute privilege protected Ward’s statements in parliament and elaborated on a catalogue of cases dating back to the Bill of Rights of 1689 to establish this to Lowe’s satisfaction. Finnane claimed that defects in this Royal Commission’s mode of appointment enabled Barry to advise Ward not to testify. He continued:

It was advice that relieved Ward of defending his statements outside the Parliament—and a submission that Lowe accepted. Lowe did not accept however that there was no matter to inquire into—since a final term of reference asked him to inquire into whether an official file relating to the ‘Brisbane Line’ was missing. On this matter Barry again suggested that the Commission might be concluded summarily since Ward had previously accepted that there was no missing document. Here he was less successful since Lowe considered that there was an area of inquiry regarding the facts alleged to be at the origin of Ward’s statement that affected people outside Parliament. Lowe’s inquiries, mostly in camera, concluded that no officer in the armed forces knew of a plan related to a ‘Brisbane Line’ …

“To the extent that his arguments helped Ward to avoid interrogation at the Royal Commission, Barry’s aid was vital. The timing was also critical. Ward had launched what was intended to be a fatal strike on the integrity of the alternative government, and on the eve of the federal election. Simultaneously Barry was nominated for the seat of Balaclava.

Barry was consoled, even relieved, at failing to win Balaclava in 1943 by his impressive result. The majority gained in 1940 of more than 19,000 by the UAP sitting member, T.W. (later Sir Thomas) White, was reduced to 2341 in 1943. Barry feared that winning the seat might have delayed a judicial appointment.

The federal cabinet’s decision in 1946 to appoint Sir William Webb to the High Court could have been influenced by Evatt’s desire to reward him for accepting appointment as President of the International Military Tribunal for the Far East. Was Barry better served in being appointed to the Victorian Supreme Court? Professor Geoffrey Sawer thought not and continued to hope for a High Court appointment. Finnane quoted from his letter of congratulations: “[It] badly needs someone who can talk with Dixon & Co on equal analytical terms, with the further aid of social philosophy somewhat more recent than Herbert Spencer.”

Webb found himself unequal to the High Court’s burdens. Dixon, while well disposed to him personally, questioned his competence and, according to Ayres, Webb himself in essence conceded this to one of Dixon’s associates. Dixon in writing to congratulate Barry mentioned that his Supreme Court appointment offered a “much greater variety of work”: he could have added that he would be more familiar with it. One may speculate on Barry’s approach on the High Court to constitutional cases but most of the other work in its original jurisdiction might well have irked him. Placed as he was, he could pursue wider interests of an extra-curial character.

Barry’s work as a Supreme Court judge fell into two phases, the first ending in 1957 when he assumed sole responsibility for that court’s divorce jurisdiction. One of his earlier cases attracted headlines and international interest—The King v Jenkins ex parte Morrison, better known as the Whose Baby Case. This litigation arose when one Gwen Morrison claimed that her daughter had been switched with the daughter of one Jessie Jenkins shortly after they had been born within ten minutes of each other on June 22, 1945, in the same labour ward at the Kyneton hospital. In a long judgment delivered on November 25, 1948, Barry determined that the real parents of Nola Jenkins were indeed Gwen and Bill Morrison, who should have custody of the child. Barry’s decision received much praise and also a great deal of criticism, much of it intemperate. He received a congratulatory letter from the rising star of the Sydney Bar, Mr G.E. (later Sir Garfield) Barwick KC.

The Jenkins successfully appealed to the Full Court. The Morrisons then unsuccessfully appealed to the High Court. Sir Owen Dixon gave the leading judgment upholding the Full Court’s unanimous decision.

The Chief Justice, Sir John Latham, “joined only by an ineffectual argument from [Edward] McTiernan”, dissented while “affirming strongly the substance of Barry’s original decision”. Barwick led for the Morrisons in their application to the Privy Council for special leave to appeal, which was declined on July 3, 1950, after argument lasting for only twenty minutes.

Finnane commented as follows:

Personally, Barry took the Privy Council’s rebuff as an undermining of his own rationale for being in the law, or at least on the bench. Importantly the judgment of the Law Lords narrowed the possibilities of his own judicial reasoning. To demonstrate this narrowing irrefutably would require a very detailed analysis of his judgments. But we do not have to go very far to know how it shaped his own conscious approach to his work. In November 1951 he told his friend Mark Perlman of a case he was about to hear involving the Income Tax Commissioner’s power to recover tax on a prostitute’s earnings. Such a case was one likely to involve Barry’s broadest considerations of social policy, law and justice issues—not to mention issues of sexuality and contemporary social norms and behaviour. But he had to confess that already he was chastened by the narrowness of legal reasoning. ‘If I were now as brash as when I first undertook this job, I’d spread myself on it”, he said. “As it is, I shall, because of past experience, confine myself to the purely legal aspects’.

After carefully reading all the judgments, the Privy Council’s ruling excepted, I must question whether Barry’s statement, made to Perlman one year and four months after the Privy Council ruled and almost five years after he became a judge, was a specific reference to the Whose Baby Case. Might not Barry have been induced to such caution by other influences or by some other reversal on appeal? Sir Owen Dixon in opening his judgment made the following pertinent statement, to which Finnane admittedly alluded:

In my opinion this appeal involves no question of law and is concerned only with a very special set of facts raising a problem of judicial discretion. The judicial discretion is committed to the Supreme Court but this Court has jurisdiction upon an appeal by special leave to review the decision of that Court if we think the discretion has not been soundly exercised … [The] question is simply whether we should be satisfied of the unsoundness of the conclusion of the Full Court of the Supreme Court. [emphasis supplied]

Much as Barry regretted the outcome, he could not plausibly complain that it constituted a personal rebuff. Judicial statements unacknowledged by Finnane made this clear. Both Herring and Fullagar in the Full Court pointedly repudiated submissions by counsel of impropriety. Herring claimed that Barry “at no stage departed from an attitude of strict impartiality” and expressed on the Court’s behalf “appreciation of the very thorough and careful way in which he dealt with the case” and acknowledged “the very greatest assistance” received “from his comprehensive judgment”. Fullagar also acknowledged the court’s great indebtedness to Barry’s “very clear statement of the reasoning which led him to his conclusion”.

On the appeal of Jean Lee and her two male companions, following their conviction for the murder of a 73-year old SP bookmaker [William Kent] in Carlton, Barry and his judicial contemporary Thomas Weetman Smith (appointed in 1950) joined in ordering a retrial in view of the trial judge’s failure to exercise a discretion to exclude confessional statements made to the police … [Barry] took the occasion to reject the polarity in judicial thought on the treatment of prisoners’ statements postulated by a New South Wales judge [Colin Davidson] as “sentimentalist” versus “realist”; and went on to cite at some length the opinion of United States Supreme Court Justice Felix Frankfurter on the characteristics of fair trials in accusatorial systems. For good measure he also cited an observation of Dixon (who was close to Frankfurter) on the “wisdom and justice of the traditional English principle” against self-incrimination. Smith’s judgment analysed the nature of the discretion to be exercised in such cases and the two judges endorsed each other’s reasons and comments. The Crown appealed the reversal and Lee, [Robert] Clayton and [Norman] Andrews were not so fortunate in the High Court, which was unanimous, though sitting without Dixon [who was on leave acting as UN mediator in the Kashmir dispute]. Barry’s judgment seemed to suggest his determination to expound from the bench his more general views of the courts and the criminal law—and to question judicial complacency.

The wretched trio were hanged on February 19, 1951. As Barry recorded in a letter to Mark Perlman:

A woman & two men were hanged here yesterday & in common with the more sensitive members of the community I am recovering from the sick horror that such barbarisms evoke. The real objection to capital punishment is that it debases the community & at a time when people are perilously close to a rabble such debasement is too dangerous. The executed were worthless people from Sydney, with no friends, not even a parliamentary representative, as they were not on the Victorian electoral rolls, & none of the protest bodies could find any political significance in their fate.

The dissenting judgment of Mr Justice (later Sir Norman) O’Bryan, who presided over the Full Court, ran to fifteen and a half pages of the Victorian Law Reports, and opened with a very detailed statement of the facts. The majority decision, as Finnane noted, turned on the question of discretion to exclude confessional statements made to the police. O’Bryan contended, however, that the evidence as he had outlined it “was abundantly sufficient to warrant the verdict of ‘guilty of murder’ against each of the accused” even with such statements excluded. His further consideration of the grounds for appeal opened with a masterly survey of the relevant statute and case law.

The judgments of O’Bryan J and of the High Court persuaded me that the three accused had been properly and justly convicted. Their ultimate fate posed a different order of question. Barry regarded capital punishment as indefensible, however heinous the crime, and applied this dictum even to Adolf Eichmann.

Only a few weeks after the Supreme Court had allowed that ultimately doomed trio’s appeal, Barry presided at the second of the three highly publicised trials of John Bryan Kerr, a former radio announcer then aged twenty-four who, after the first two juries had disagreed, was convicted at his third trial of murdering Elizabeth Williams at Albert Park. Norman O’Bryan presided at the first trial and the death sentence passed on Kerr’s conviction by Sir Charles Lowe was commuted to life imprisonment. The second trial was notable for the clash between Kerr’s senior counsel and Barry after the jury had retired but before they admitted their inability to agree. Mr R.V. (later Sir Robert) Monahan KC, who was called to the Bar three years before Barry and who was Kerr’s senior counsel at all three trials, joined Barry on the Supreme Court in 1955. In Finnane’s words:

In an extraordinary attack Monahan criticised Barry’s summing up during which, he said, the judge had read out Kerr’s evidence in a monotone to an overtired jury that was discomforted [sic] by having to sit through a three-hour address. At one point Barry ordered Monahan to resume his seat, before allowing him to continue—and then recalled the jury to put to them some of the matters raised in the defence. In the memory of Monahan’s assisting junior counsel, Kevin Anderson, Barry had made it ‘evident that he thought the accused guilty and he conducted himself—and the trial—accordingly’.

While Barry’s appointment to the Bench required him to sever all links with the Labor Party, he continued to hold out the hope, never to be realised in his lifetime, that the Tories, as he termed federal Labor’s opponents, would be defeated in due course. In corresponding with Perlman, he discussed the Menzies government’s proposed banning of the Communist Party in 1950. While deploring the legislation he reserved his position on Menzies—“politically able if vain and shallow”. As he put it, “Your judgment of Menzies is sound; he is a first class lawyer and in his personal beliefs the same type of small ‘l’ liberal that I am”.

Barry was never wholly uncritical of the ALP; nor did the party much appreciate him when he was involved in it. He recalled his discomfort when rising to speak in 1942: “I could feel an almost physical wave of resentment”. Finnane saw Evatt’s response in 1954 to the Petrov affair as “especially damaging” and Barry himself questioned the wisdom of Evatt’s appearing before the Petrov Commission for two members of his staff. Finnane quoted Barry as follows:

An advocate involved in the matter in which he appears is in a situation which impairs his judgment & deprives his client of the thing his client needs most—a capacity for critical & detached appraisement. Moreover Evatt’s notion that he is a forensic wizard is ill-informed, & has taken on the aspects of a delusion.

Respecting the Labor Party itself, Finnane recorded Barry’s view that the rot was already well set in even before the Petrovs defected in April:

‘I am daily more appalled by the mean & narrow outlook of Labour politicians, in both State & Federal spheres’, he wrote on 1 March 1954, in the course of the Queen’s visit to Australia. ‘They lack any breadth of vision, & have no knowledge at all of the traditional standards of behaviour which on public & governmental levels must be observed if a community is to cohere’.

Finnane entitled his seventh chapter “Judge or Criminologist?” as if the two roles might be antithetical. It could be argued that Barry successfully drew them together. In Finnane’s words:

Finding judicial work sometimes tedious, often frustrating, but only rarely totally exhausting, Barry’s energy found new outlets from 1950 onward. Above all the favoured arena was intellectual. Through the writing of history and the advancement of the new discipline of criminology Barry built a bridge to an international community of like-minded scholars.

Finnane’s fascinating and thorough survey of these “extra-professional commitments” takes up a significant portion of his text.

Beyond scholarly research, Barry gave his energies to the establishment of the Australian Institute of Criminology, the foundation of the Criminology Department at the University of Melbourne, and to family law reform. In 1957 he played a key role in establishing and administering the Parole Board of Victoria. In 1955 in Geneva and 1960 in London he led Australian delegations to United Nations congresses on the prevention of crime and on the treatment of offenders.

In 1955 Barry on a period of seven months leave visited the United States. While in Washington he was introduced through Felix Frankfurter to all members of the Supreme Court, “and then sat in on a hearing, where counsel for the government was the ‘very impressive’ Warren Burger, a future Chief Justice”. Burger as Chief Justice was to go on record as saying, in words which Barry would have applauded, that an obsessive concern for the rights of accused persons, estimable enough in itself, had tended to obscure the rights and the treatment of convicted criminals once they were imprisoned.

In his own personality Barry was a mass of contradictions. Finnane has dealt with his awkward relationships with women. His agnosticism seems to have brought him no inner peace, for he “struck many people as not a happy person”. He never lost his respect or indeed his awe for the Catholic Church. Barry is recorded by Finnane, quoting one of his associates, Jim Edwards, who was a Catholic, as follows:

I think he was sorry that he felt constrained to abandon his religious faith. He told one of his friends, a church-going Baptist and a judge in another jurisdiction, that he wished he had the ‘faith of the Galilean Fisherman’, and he said to me on one occasion, ‘my advice to you, Jim, is if you have any faith stick to it’.

Finnane also recorded Jim Edwards as insisting to Justice Michael Kirby that, “Barry was an agnostic but not a rationalist: ‘He once said to me “Rationalists are the most irrational of people”’.”

Justice Bernard Teague, who wrote Barry’s entry in the ADB, recorded the following:

He rejected dogmatic religion because of his refusal to accept anything he found to be irrational, yet he carried a St Christopher medal. His thousands of letters revealed his reasoned analysis of numerous problems, but little of his deeper feelings. Described by more than one commentator as being a felicitous user of words, he was almost inarticulate on the subject of his own relationships. He had strong ties to his mother and was greatly influenced by her, and was happily married twice, but his perception of the role of women was conservative.

Teague contrasted Barry’s courtesy and willingness to help others when off the Bench with his demeanour in court, citing one instance which Finnane seems to have overlooked and which I have italicised:

[To] others who faced him on the bench, he was discourteous in the extreme, conducting his court in such an interventionist and autocratic way as to create widespread resentment. He could upbraid practitioners with acerbity, particularly for using words inappropriately. A similar approach had to be made to him about his behaviour on the bench to that which he himself had made to [Sir James] Macfarlan. In court he had difficulty in accepting that the high standards which he set for himself could not always reasonably be met by others. In 1959 he wrote of the sad decline since 1945 in the punctilious observance of the rules of court.

Barry had been a heavy smoker since his youth and, it would seem, less than diligent in attending to his own health. Severe illness from September 1968 was to dog him for what remained of his life. On March 29, 1969, with less than eight months to live, Barry received from Sir Robert Menzies as Chancellor of the University of Melbourne the degree of Doctor of Laws. It is to be hoped that those two identities, who in the past had viewed each other ambivalently, by then had found some rapprochement.

In reference to Barry’s occasional address, which could be treated as his personal testament, Finnane dwelt solely, if pertinently, on his musing on the degradation of the environment. I have chosen, however, to quote from his opening paragraphs for, among other things including his felicity of style, they highlight Sir Zelman Cowen’s observation, as quoted by Michael Kirby in his introduction, of Barry’s “taste for panoply and ceremony” and “personal conservatism that took pleasure in established forms of community recognition”:

Tradition was once the only means of preserving and transmitting the wisdom and experience of a people from one generation to the next. Even today, when communities have become extraordinarily complex and deplorably impersonal, it is still the most potent of the forces that operate to produce social cohesion. Traditional wisdom is often conventional and superficial, but frequently it embodies insights that go to the roots of society’s very existence.

“In the affluent and permissive societies which have developed so recently and so rapidly, tradition does not seem to be regarded with the same esteem as it was during the great creative periods of mankind’s history. This is a pity, for healthy tradition is at once the mortar that holds the social structure together, and the source of the spiritual strength of a community.

“If it were not for tradition, this ceremony which we share today could not take place. The medieval garments which transform us males, ordinarily so depressingly drab, into resplendent creatures of polychromatic beauty, are themselves witnesses to the enduring qualities of sound tradition. Reaching back into the centuries, the garb we wear, and the ceremony in which we take part, are the outward signs of fundamental civilized values. They symbolize the virtues without which the good society could not exist, and the good life cannot be lived. They emphasize that no society is even tolerable unless it regards intellectual integrity as pre-eminent among desirable things, and unless it recognizes, too, that what distinguishes a true democracy from a closed society is the preservation of the free, critical, enquiring spirit which insists, always, that the pursuit of truth is mankind’s noblest goal.

On November 11, 1969, the Chief Justice of Victoria, Sir Henry Winneke, in a special session of the Supreme Court to mark Barry’s death, delivered a tribute to him which included the following, as quoted by Justice Teague:

Wide learning, subtlety and alertness of mind, constant industry and great courage he possessed in ample measure. These fine qualities combined with a deep compassion for those in adversity or distress to produce a character which earned him the everlasting affection of his friends and the admiration and respect of his profession.

Professor Mark Finnane has produced a biography which has very successfully highlighted those very qualities and much else.