Damien Carrick: Thank you Ben. Welcome everyone to the wonderful Queen’s Hall Reading Room here at the State Library of Victoria. We’re here on the eve of Redmond Barry’s 200th birthday to discuss both his achievements as well as his flaws. And perhaps come to a view about whether or not the scales ultimately tip in his favour or not.
Now fittingly we’re holding this discussion in this fantastic space, the Queen’s Hall Reading Room. This space was completed in 1864. It’s 73 metres long, it’s nine metres high and it’s dominated as you can see by these 38 beautiful fluted Ionic columns along both sides of the gallery. Now the central part of this room back behind us was the first to be built; the room was built in stages and it was the original Public Library’s space. And the day before the official opening of the library way back on the 11th of February, 1856, Barry worked late into the night to help shelve the first collection of almost 4000 books.
The ship carrying Barry’s order from Britain had arrived late, but characteristically he wasn’t going to push back the opening date. This guy had energy and he had vision. Redmond Barry’s contribution to the development of many of Melbourne’s institutions is nothing short of extraordinary. He was instrumental in the founding and the development of the University of Melbourne. He also founded the Supreme Court of Victoria in 1853.
He looms large here at the Library; there’s a large bronze sculpture of Barry outside in the forecourt and his coat of arms’ motto ‘motto bute enavon’ which translates as ‘thrust forward’ is emblazoned on the portico. Now on one level, he was the quintessential progressive 19th century forward thinker. However in his private life he could also be described as a regency lad and he was caricatured in Melbourne Punch in 1866 as the ‘naughty boy’.
Now by profession he was a lawyer and he was one of the first appointments to the Victorian Supreme Court. He’s often disparagingly remembered as a hanging judge and the man who sentenced Ned Kelly to the gallows. Now this evening we’re going to revisit the Kelly trial and discuss another very interesting murder trial that he presided over, which is so called Steven Street murder trial. Now to ponder the complexities of this extraordinary man, Redmond Barry, I’m joined by three terrific guests.
We’ve got Robyn Annear, she’s a writer and historian and she’s the author of many books about the history of Melbourne and Victoria, including the critically acclaimed Fly a rebel flag: the Eureka stockade. And she also wrote Bearbrass: imagining early Melbourne which won the 1995 Victorian Premier’s Literary Award. Now in 2006, Robyn was a guest curator here at the Library and her exhibition Naked democracy: governing Victoria 1856–2006 marked the 150thanniversary of responsible government in Victoria and provided a window into how our democracy evolved.
We’re also joined by Judge John Smallwood. As a barrister John appeared in many armed robbery trials, he took part in his first murder trial in 1991 and over the next decade developed an almost exclusive homicide practice. In August 2001 he was appointed a judge at the County Court of Victoria, where he has presided predominately over criminal trials. And he’s also currently the judge in charge of the County Koori Court, that’s a specialist court which hears matters involving Indigenous accused.
And we’re also joined tonight by barrister Ken Oldis. Now Ken has a fascination with Australian and in particular Victorian history, which was first triggered as a boy when he was hearing his mum’s tale or his grandma’s tales of olden days. As well as a degree in law, he also has an arts degree majoring in history. And since being admitted as a lawyer, Ken has practised almost exclusively in the criminal jurisdiction. Now a few years ago he managed to combine his twin passions by writing a book entitled The Chinawoman. It’s a forensic examination of the trial of two Chinese men accused of the murder of a Caucasian sex worker in 1850s Melbourne.
Now I want to open our conversation tonight by asking each of our panellists for an anecdote, a story or a myth about Redmond Barry.
Robyn, I’d like you to start. What’s your favourite myth/story about Redmond Barry?
Robyn Annear: Damien, my favourite story about Redmond Barry concerns the State Library or the Melbourne Public Library as it was. Two things he could not abide in his library. One was popular fiction. He certainly chose very little of it and discouraged its choice by other people for the collection. The other thing he couldn’t abide was pilfering of books from his library. However a story that was doing the rounds still, about 60 years after Barry’s death, was that on at least one occasion he was happy to condone theft from the Library and it went like this. He was showing a visitor through the Library one day when the visitor asked, ‘Do you have much in your collection in the way of novels?’ To which Barry replied, and I’m quoting here the story, he replied loftily ‘Very few indeed. I am thankful to say that those few are being rapidly appropriated by a few unscrupulous persons and will not be replaced.’
John Smallwood: I don’t know whether it’s described as a favourite story but it’s because of there not being any recording of those times or there are not being transcripts kept of trials; there’s very little kept of his actual advocacy and this relates to a libel trial where a Mr St John who was the commissioner for lands had been associated with the police before that, had been accused by John Pascoe Fawkner of taking bribes. He issued proceedings against Fawkner. Now when Barry had first come to Melbourne, Fawkner had assisted him with his practice; he’d drawn his will for him and paid him money for this and that, and he’d done some work for him so he should have been relatively grateful. But Barry took the brief to prosecute the libel against John Pascoe Fawkner, who of course was one of the founders of Melbourne. Now this is verbatim, this is a book from one of the old masters of the Supreme Court. The charge that had been levelled against his client was one of bribery. This is how he started his address to the jury in this libel trial: ‘I confidently assert that fertile as this province is, in libel and prostitution of talent, there never was a case yet tried entitled to larger damages. There could be no greater crimes than those with which the defendant has charged the plaintiff. They are detestable in their character and have been abhorred by upright men in all ages. Gibbets were erected and dungeons had yearned for the punishment of these execrable crimes with which the plaintiff is charged. People shrink instinctively from the perjurer and view with horror the man who seals a lie by kissing the book of life.’ Now unfortunately it was bribery was the allegation.
Now bear in mind he’s talking about a man who’d succoured him, in terms of his practice when he first arrived. He then proceeded to tell the jury, there’s more in there I’m leaving out obviously, ‘Look at the relative positions in life of the libeler and the libel. The plaintiff has a large family without a profession and entirely dependent upon his position in society. The support if deprived of them by the fowl slanders of the defendant who’ll be irretrievably ruined. The defendant on the other hand is childless and possessed of great wealth, a good deal of which is his hope will be taken from him by the verdict of the jury.’ So in any event he went on and asked for the greatest reward of damages that had ever been made or anything along those line and it turned out in the end that the jury were hung.
Now I don’t know how the paper found out but they must have. The Argus said that the twelve jurors were hung; eight wanted to find for Fawkner and four wanted to find for St John and to award him a farthing. So the end result was that they both run out of money at that point, and couldn’t go on with it so it never went on ahead. But the press who often took a fairly intense dislike to his Honour as he ultimately became, had this to say, this is in regard to him: ‘The practice of using the wig and gown is a licence for abuse is not new to the colony, but is getting to a head. We have the authority of Benjamin Franklin, one of the greatest and soundest thinkers who ever lived for saying that a sound cudgel is a resource which may be both allowable and necessary in very gross cases of this kind.’ In other words, a suggestion that Redmond as he was then be taken outside and belted. So I think that’s a good example of his advocacy in the way the press regarded him.
Damien: So we’ve been hearing about his humour and about his flourish; his ability with words. I’m wondering if Ken Oldis, his actions lived up to that larger than life persona?
Ken Oldis: Well he certainly liked to live up the conventions of his rank and in 1841 Port Phillip in the New South Wales as it then was, he was practising as a barrister and he defended twelve men, twelve Koori men who’d been accused of robbing the hut of a squatter by the name of Peter Snodgrass. Now Barry got one man acquitted but the other eleven were not and sent for transportation to Flinders Island. In fact on the barge going down the Yarra River to take them to Flinders Island, they escaped; two were shot but the others were never seen again.
Now I don’t if there is a connection, noone does, but both men, Snodgrass and Barry, were members of the Melbourne Club at the time. Apparently about six months later Barry wrote a rather disparaging letter referring to Snodgrass, which unfortunately was shown to Snodgrass by another member of the club; he demanded satisfaction. Now the conventions of the time required that Barry take up the gauntlet; he certainly did. And the two met on the beach at Port Melbourne and it’s interesting to remember that this time Barry is a 20-something barrister in Port Phillip and he’s described by the chronicler Garryowen, who had arrived in Port Phillip in1841 himself and so he was probably a witness to these events, as ‘a splendid specimen of masculine organisation’.
Ken: Now the two men met under cloudy skies and no doubt seagulls on a Port Melbourne beach, and Barry certainly attired himself in the appropriate costume for the occasion. He’s described as being ‘done up with as much precision as if attending a vice regal levee’. And indeed he was wearing a bell topper hat, strapped trousers, a swallow tailed coat and white gloves, complete with cravat.
Now if Barry’s intention by styling himself as a deadly duelling dandy was to unsettle Snodgrass, and I think he was intending that, he certainly did. They both measured out their distance, 20 paces. Barry made great moment of placing his topper hat down on the ground, deliberately tugged at his white gloves, removed them, adjusted his waistband over an immaculate shirt and received his pistol from his second. He saluted apparently his wicked looking antagonist with a profound bow, assumed a majestic pose and calmly after aiming, awaited the command to fire.
No doubt at the other end of the playing field Snodgrass of course was looking down the barrel of Barry’s gun. His nerve totally evaporated and his trembling gun prematurely detonated to no effect at all. Barry saw the smoke, he heard the bang, but declined the opportunity to shoot his opponent; indeed he inclined his pistol to the vertical, shot at the clouds because after all honour had been served and observed and he certainly included himself in those that observed the practises of gentlemen and he certainly counted himself within their number.
Damien: A man of honour. A man of strong words, powerful words and a man of extraordinary achievement. Let’s now talk to each of our guests in a little more detail.
Robyn Annear, historian, writer, can you set the scene for us? What was Melbourne like when Redmond Barry arrives and how did he fit into the society in the era?
Robyn: Well when Barry arrived, 1840s Melbourne, it was still a small town, pre-gold rush. He found himself in a very small town where it would be easy to rise to the top and be important. The gold rush has happened not that long, well you know, some time afterwards and the town changed a lot. The town became a city and he’d already established his position as a professional man; he’s been called a cultural evangelist which are two beautiful words to put together. It was a town in need of culture and it was a town I think driven in its top ranks by evangelism of different sorts but I think it’s a great term to describe him.
Damien: And he had this amazing vision for cultural institutions. What was his vision for this library in which we’re sitting tonight?
Robyn: Well obviously he didn’t want this library to have anything in the way of popular fiction which he considered both frivolous and ironically really when one learns about his private life, he considered it to be, to tend its readers towards moral laxity and he did not want that encouraged.
Damien: In others.
Robyn: In others. Well possibly in anyone, but yes okay. So what he did want for this library is he wanted it to be high toned, a place where people, working people, ordinary people could improve themselves and in this he was very much a man of his time. All through country Victoria at the times of the gold rushes, even before, similar men of a smaller scale were driving the establishment of Mechanics Institutes and so on for exactly the same sorts of reasons: to enable working folk to improve themselves and to become more like, but not too much like, their betters. To become their best selves I guess. So he was a man of his time, he was operating on a larger scale; he had a bigger canvas to paint than someone in Kyneton or another pre-gold rush town.
Damien: But what’s interesting is that it was free, it was free to everybody I think over the age of 14 or 16.
Robyn: And it was unusual in that, I mean anywhere else in the world where public libraries were being established 21 adulthood meant you could cross the threshold. Here it was 14 so he was really getting them young. Anyone over 14 you came through the door, took off your hat, and if you see any of the early photos downstairs in our exhibition here commemorating the Library’s early days, you’ll see everybody’s top hat sitting beside them at the tables. You needed clean hands and nobody, Herman Beckler who would shortly after he arrived around 1859 would shortly become the botanist on the Burke and Wills expedition, he wrote home to his brother in Germany that he wrote the word ‘free’, it’s free for anyone to come here, no book is too good for anyone in this place. You were allowed to take the books from the shelves yourself, which again was unheard of elsewhere; it was like giving a licence to an idler to waste his time. So here you take the books off the shelf, you didn’t have to ask the question of anyone to justify yourself. Many said you didn’t even have to sign your name, although things must have changed over time. But you didn’t have to justify yourself, explain yourself. You could take down a book when you finished with it, choose another, nobody asked you a question, you didn’t have to do anything to justify that you were good enough to do it. I can’t emphasise how out of his time he was for insisting on this degree of freedom.
Damien: So he was committed to education for all?
Robyn: Well no Damien.
Damien: Well for men perhaps? Or he was committed for education for all men.
Robyn: For self-improvement and education up to a point for all, that is true because people of any gender or race as well as anyone over 14 were permitted to come into this library. There was a separate ladies room and possibly somebody climbed the ladders for them because those frocks were rather troublesome in a ladder type situation I’d imagine. So education for all up to a point. He was of course instrumental in the establishment of the University of Melbourne and was a hot opponent throughout his life of the admission of women to university.
Damien: We might come back to his relationship with women a little later.
Robyn: I wouldn’t go any closer at this point.
Damien: So he believed in education and improvement for everybody, but he actually didn’t believe in one man, one vote did he? So he’s very progressive on some issues and not progressive on others.
Robyn: That’s true and in that he was like all of us I think, you know, he spent his life justifying himself to himself and sometimes got it right and sometimes got it wrong. Democracy was new, it was new, it was in fact Victoria was called a laboratory for democracy in the 1850s.
Damien: In global terms.
Robyn: Yes, in global terms. This was a laboratory for democracy. Things like, as it was called, universal suffrage. A slight misnomer, it meant a vote for every man. The introduction of the secret ballot and in some parts of the world they still call it the Victorian ballot. Things of that sort, the land laws, and so on, of course, which someone like Barry would have been very interested in. So, he was here in this laboratory for democracy and it really was a work in progress. People were really figuring it out.
I think a really good illustration of this is, think of Peter Lalor, who was the chief of the rebels at the Eureka stockade. There, taking up arms, in fact he lost an arm in fighting against injustice and tyrannous authority. He went into hiding, he was a wanted man, for high treason. Others, of his comrades, were captured, charged and tried for high treason. They were acquitted and he came out of hiding. A year later he was elected by a clamorous public of Ballarat, to parliament, to represent them. And one of his first actions was to oppose a bill for one man, one vote. He opposed it and when asked why, he said ‘I fought against injustice, I didn’t fight for equality.’ Now, for modern people like us it’s hard to split those kinds of hairs but, like I say, democracy was very much a work in progress. It was still possible to be wed to conventions that had been going on for an awful long time and your own position in society.
Damien: And Redmond Barry embodied a lot of those paradoxes.
Robyn: Absolutely, there you go.
Damien: He also embodied many of the attitudes towards women of his time and I’m wondering, we’ve talked about his views towards women in the public sphere, in education, and what have you, what were his lifestyle choices and how did he treat women in his personal life?
Robyn: This is a tricky thing for me to talk about. When you talk about a man who has achieved greatness in the 19th century and a man like Barry in particular, you’re aware that it is someone who wouldn’t have given you a second glance, would never have listened to you in conversation, as a woman. This would certainly have been the case with Barry, he didn’t have much time for women as people, I don’t think, possibly, but as women he had a lot of time for them.
Damien: A great interest.
Robyn: A great interest. A lively interest one could say. He flouted convention always, in his relationships with women. He had a long term relationship and four children with a woman, Louisa Barrow, here in Melbourne. He never lived with her because he preferred to visit his womenfolk. She was one in a line of Mrs’s who he would visit behind their husbands backs. Her husband conveniently died but others of them ... so he enjoyed cuckolding men and I don’t know how much his interest in women was actually driven by that, first and foremost. He never married his mistress and he never owned up to her really, certainly not to his family. He wouldn’t go to the races with her, never lived with her, never gave her his name and never gave her the respectability that would have gone with being associated with a man of his position in this town. Certainly, yes, he had sexual relations with women pretty willy nilly throughout this town and on the voyage out. The ones that were recorded in his day book were often referred to as Mrs B, of whoever, which means they had a husband supporting them and who would give their name to the children, any issue from Barry’s relations with them.
What concerns me is there were also other women, possibly prostitutes and others, and Barry as much as anyone of his time must have known what an unwanted child or a damaged reputation could do to a woman. On one occasion he actually fished a woman out of the Yarra who had thrown herself in, as women did. If you read the 19th century newspapers in Melbourne there were women and their children, more often than not, dead, pulled out of the Yarra, almost daily. We know why this was. It was because they were pregnant; they had unwanted children; they couldn’t keep their children, you couldn’t just go out and get a job and... I mean Barry knew this situation and he put some of those women there, I would suggest. Although he pulled one of them out, who went straight back and threw herself back in, I might add.
Damien: It was a hard time to be a woman. It was also a very hard time to be Indigenous in this country. Judge John Smallwood, from 1841 until 1851, Redmond Barry was, he had a job as what was known as, the standing counsel for Aborigines. What was this role?
John: What happened was, and I think it’s important to understand the circumstances in which Barry took on that role. He came out here, 1838 or 1839 I think, when he got to Melbourne, and he was, in 1941, as far as I could find, the first recorded trial in acting for Aboriginal people, the one that Ken referred to before. Now, he did that one for free; when asked ‘Will you do it without fee?’ he said ‘I’ll do it for humanity’. Now, whether he did it for humanity or to fix up Snodgrass is anybody’s guess. What occurred over the next ten years was that he represented many Aboriginals charged, not only with capital offences, but with other offending.
During that period of time, we’re talking 1840 to 1850 the Gunai/Kurnai massacres in Gippsland, which is in the east of Victoria, were all taking place. That between 1840 and 1850, there’s somewhere between 300 and 1000 of the Gunai/Kurnai were shot by McMillan. That was all occurring in eastern Victoria when he started to do this. In the trial of Jack and Bob, I won’t use Koori names here, their situation was that five of them were charged with the murder of a couple of whalers and Barry took on the job in December 1941. At that point in time he was not the standing counsel but he had been acting for Aboriginal people and he had been receiving, it’s quite clear, a significant amount of abuse and disregard from other people in society and from counsel. In the trial of Jack and Bob there were five Aboriginal people. There were two men and three women. They were heathens and accordingly were not able to give evidence. At that point in time in 1840–
Damien: Because they couldn’t swear an oath?
John: Because they couldn’t swear an oath was part of it and just a general attitude. William Wentworth, that famous man, when asked why Aboriginal people couldn’t give evidence in a courtroom or even make an unsworn statement, said that if we’re going to allow that then we may as well allow the gibberish of orangutangs. So that’s what Barry was walking into, representing Aboriginal people.
In that trial he could not call any evidence from any Aboriginals at all, they could not speak on their own behalf and he went to the jury on a simple basis. He firstly told the judge who was presiding on it, which was Willis who was mad as a two bob watch, and he came from NSW, if there’s anyone from NSW listening, that he was at a dreadful disadvantage, he couldn’t represent these people. There are other arguments about all sorts of things that I won’t go into here ‘cause they’re far too complicated, but in any event he said I can’t represent these people properly here because they’re not allowed to give evidence, not even allowed to speak for themselves. If this is going to be fair I want six Aboriginals on the jury because they’re going to be treated as aliens, they’re entitled to a jury of their peers and I want six peers on the jury, that is I want six Aboriginals. That was just flatly refused and the trial went ahead.
Barry, unable to call any evidence, unable to do much at all, went to the jury on the basis, and I can put this in fairly vernacular terms, the case against the two men was based almost entirely on the alleged confessions of the women. So, they were not allowed to speak for themselves, they were not allowed to give evidence in court, they were not allowed to deny that they’d made those confessions even and Barry challenged the confessions but they were convicted on each other’s word. That’s a fairly extraordinary concept. The British justice was very, very adaptable in certain circumstances and that’s what occurred. What Barry did was he was able to lead, from one of the protectors of Aboriginals, that the Aboriginal women were subject to the men and when he addressed the jury he said look, if you’re going to convict these men, at least let the women go. Just don’t convict the women. It was basically let the sheilas go! It was what he did, there was no, their evidence was their own word, it was a dreadful miscarriage, in my view, that was what the law was at the time.
The jury came back and convicted the two men and acquitted the three women. There was then a strong recommendation for mercy which was totally ignored and they were hung. They were Melbourne’s first public hangings. They went horribly wrong and they strangled. They were out here in Swanston Street, I think it was. They board didn’t drop underneath them, they had to kick it away. One of them, I think it was Bob, took about ten minutes to die. Just a dreadful ... with 5000 people who’d turned up yelling shame.
That was the start of it for Barry, well not the start, he’d already done Koori trials before then, what occurred was that about a year before in NSW they had decided to appoint a standing counsel for Aboriginal people, and I always when people say someone was very caring about Aboriginal things, being in charge of the Koori court I’m extremely cynical about those sorts of ascertains and claims but what made it for me so far as Barry was concerned was this. When he was offered the position as standing counsel, because of his reputation at the bar, he said he would become standing counsel for Aboriginal people and the fee was to be three guineas per accused but he said if I take that job, I will only take it on the condition that I am briefed to prosecute any person where the victim is Aboriginal. So he’d only do it if he was also briefed to prosecute the whites where the victim was Aboriginal which I thought was pretty sensational. That’s essentially how he came into that role and for a number of years that’s what he engaged in.
Damien: So, he had this role as counsel for Aboriginal people throughout the 1840s and then in the early 1850s he became a judge of the Supreme Court, one of the first judges of the Supreme Court and, of course, he’s best remembered, well he’s often referred to as a hanging judge. What do you reckon, was that a fair description?
John: Well, they all were!
Damien: A fair description?
John: [laughs] They didn’t mind stringing them up. After those first, there was a Koori called Roger who was the last person hung in public, an Aboriginal fella who Barry had represented. After that there weren’t so many hangings of Aboriginals. There were 29 convicted of murder, only three were executed again after that which was not pretty bad. I couldn’t find out whether he recommended mercy for Aboriginal people who were convicted of murder before him. He certainly didn’t recommend mercy for many others, that’s for absolute certain.
Damien: So he was a tough judge.
Damien: Even by the standards of the time.
John: Well, it’s a bit debatable. He certainly wasn’t into mercy afterwards, after he’d passed the death sentence. Whether he was harsher than other judges is debatable. I suspect not, because obviously if you’re convicted of murder, death was mandatory, but what has been noted is that, on average, if you were someone who’d been transported or a licensee or had a ticket of leave or whatever, you would get twice as much for a particular crime as somebody who wasn’t. If one of the citizens of Melbourne committed a crime they would get X. Anybody who had been transported or came from England or who’d been a convict would get XX. He had this absolute fear from his background in Ireland of there being a lawless rabble.
Damien: And, of course, he’s best remembered as the judge who presided over the trial of Ned Kelly and sentenced him to death.
Damien: We could go on for hours and hours about this trial and we can’t, but what do you reckon, what was Barry’s role in that trial? Briefly.
John: Briefly, alright. I have, in terms of looking at this material, never come across such conflicting reviews and reports and misdescriptions, so it’s almost impossible to work out what happened. I think my favourite part of the trial was, that as everybody’s read, and there’s about 20 versions of this, at the end, when he had that remarkable, infamous almost, discourse with Ned about what was going to happen. Ned said, in one version, ‘I’ll see you when I get there’, right, basically ‘I’ll see you in hell’. In another version he said ‘I’ll haunt you from the grave’. There’s no transcripts so no one can ever work out, but it was something along those lines. Back in 2009 they dug up the mass grave out at Pentridge.
Damien: The old jail in Melbourne’s northern suburbs, in Coburg.
John: The old jail, the second oldest Melbourne jail. They dug up the remains of about, I think it was, 33 unknown people who had been executed. The pathologists here in Victoria spent a few years analysing that and were eventually able, on the 31st August 2011, to say ‘we’ve got Ned’s skeleton. It’s headless, but we’ve got his skeleton’. Sir Redmond Barry spent a lot of his life living in a house he’d built in Carlton. He’d sold that to finance a trip to finance a trip to America to go to an exhibition. When he got back from America, in 1876, he’d bought himself a place in Clarendon Street in East Melbourne. On 31st August they announced that Ned had been taken from his grave, that they had his bones; these bones down at FSL were Ned’s. And that night Barry’s house went up.
Damien: In flames.
John: In flames.So, whether that was a Glenrowan repeat, or what is was, I don’t know but it’s pretty extraordinary.
Damien: And of course the fate of these two men is entwined in death, but also at death, because of course Ned Kelly was hung and then twelve days later Redmond Barry died.
John: Well, he did. He died from complications from an ulcer on his neck, or a cyst on his neck, which I thought in terms of what happened to Ned, was fairly understandable.
Damien: And in a few words, just in a few words, what do you reckon, was he a good judge?
John: I don’t think he wasparticularly special. As I say, the Aboriginal stuff is very important to me, I’m very very impressed by that, but I can’t think of a legal principle that he created. All his arguments about Aboriginals not being subject to the law and all these things that he argued as a barrister didn’t seem to get a mention when he became a judge. Went totally out of the repertoire so it’s pretty hard to judge and I don’t know whether you could, you’d have to go through a lot of material but certainly his reputation, in terms of being an actual judge he loved a homily, loved it, and I think the Bar didn’t like that. The press, certainly, went after him a number of times.
There’s one stage where Melbourne Punch had a cartoon which said wouldn’t it be a dreadful thing in Melbourne if we had a judge who was sentencing people, whose moral standard was lower than those who he sentenced.
John: It’s a long time ago and there’s no one left to talk to about it. I think it’s probably even money whether he was good or not.
Damien: Thanks Judge. Now Ken Oldis, barrister Ken Oldis, you’ve written a book, it’s titled The Chinawoman and it’s about a trial that was presided over by Redmond Barry.
Ken: That’s right.
Damien: And it was a trial of two Chinese men who were charged with the murder of a Caucasian woman, Sophia Lewis. Tell me briefly about that case and the broader social context.
Ken: Well Sophia Lewis came out from London and arrived in Port Phillip in 1855; in fact the same week that the first racist anti-Chinese laws, the landing laws imposing a tax of ten pounds on every Chinaman that arrived in the colony, came into force. And she was found the following year in December with her throat cut by two policemen in the wee hours. What had occurred was that she’d set up shop where the Telstra building is now, on the corner there of Exhibition and Lonsdale streets, was then called Steven Street, as a tobacconist ostensibly but actually as a boudoir specialising in men of all nations, read non British, and mainly Chinese; rich merchants coming up from Little Bourke Street.
So of course her clientele became the immediate suspects and at the time there was campaigns going on, very vigorous anti-Chinese campaigns going on, which saw this case become very infamous at the time and of course for decades past, because it had the element of murder, sex. You’ve got to remember that at that time the population of the colony of Victoria was 400,000 odd, ten per cent of that 40,000 were Chinese and they weren’t just Chinese, they were Chinese adult men. Because you could count on your fingers of one hand the number of Chinese women that the Chinese diggers had brought out to get the gold. So there was those two major anti-Chinese limbs and they were, they’re taking our gold and of course they’re interfering with our women so there was a lot of sexual tension in the air, and this case took it all to the fore.
Now in the end, in the midst of the anti-Chinese campaign, in the midst of the Buckland riots after the police had no idea as to any suspects, specifically all of a sudden arrests were made and two Chinese men were put on trial in front of Redmond Barry.
Damien: And you looked closely at the archives around this trial.
Damien: What’s your sense of Redmond Barry as a judge and his role in this trial?
Ken: Well it’s interesting what John Smallwood said about what Barry’s applications were in his efforts to defend Kooris, because of course if you were Chinese you were also an alien and you were also entitled to a jury of half your linguistic peers at least by right. Now that didn’t come up at all in the trial of these two Chinamen but of course it wasn’t for the judge to interfere, especially at that time and have the barristers make those applications. It is interesting though in the way that he treated the trial in terms of course, they didn’t speak English the defendants, and most of the trial was of course done, or all of the trial was done through interpreters in government service and indeed the entire case really against them came from so called confessions they’d made to some of these Chinese interpreters. Barry dealt pretty speedily with any objections to both these confessions taken through interpreters and also in fact when there was an objection to the fact that these witnesses, the Chinese witnesses against the defendants weren’t swearing on oath, they were blowing out candles, they were breaking plates. Barry ruled, well if it’s binding on a man’s conscience, it’s effective and overall that so the trial was pretty rapid. In fact they were arrested, committed for trial, tried and executed almost within a month.
Damien: Do you think that the two accused got a fair trial? And do you think, what was Barry’s role in ensuring or not ensuring that outcome? It’s a tough question.
Ken: It’s nigh on impossible, looking back in hindsight. You’ve got to remember that the law was very different then but it’s also fair to say that the mistakes that were made at the trial, I don’t think you could really lay those at Barry’s doorstep, the significant mistakes were made by the barrister defending.
Damien: Your book’s really interesting because you look at each of the players, each of the big figures in this trial and a lot of them just left Victoria shortly after because they just followed the gold. They followed the gold to the next gold rush whether it be New Zealand or other parts of Australia. But Barry was invested here, he put down roots. He was different from the others wasn’t he.
Ken: That’s, for me, the most interesting thing about him. Those that held senior civil service posts from the governor down, judges, the prosecutor of this trial, the attorney-general at the time, all of these men, and you’ve got to remember the British Empire was almost a carousel, you moved from Bermuda to Victoria to New Zealand and, whether you are a lawyer, a civil servant or a governor, that was the accepted way to go. You would conclude your career back at home where you would retire.
Barry was very distinctive. He celebrated November 13th every year of his life, bar the one where he was dying after he’d sentenced Ned Kelly, because that was the day that he arrived in Port Philip. What comes through very closely when you read, he was a great diarist, we’ve lost a lot of his day books so you can’t refer to those but he wrote down, almost daily what had happened, right from the time he arrived in Port Philip and certainly afterward. He was making a new life here and considering the way he saw the world, I’ve talked about the way that he observed conventions in his duelling, the rules for him applied to him differently to others. He had special rules.
He was of special status and part of that status, part of the following of the rules, was that there were obligations and that’s why I think that part of his public life – and it does contrast with his private life – but looking at it from his perspective, it does make sense. A man of his status, it was quite accepted that, of course, he would have affairs, take a mistress who was married. It wasn’t proper to have a sexual affair with an unmarried woman. When you think about it, it would interfere with an eventual marriage, which was important to lineage, which was important to the passing of property down through the landed classes, down through the gentry. Whereas once they’re married, by law in Britain, right up until the mid-20thcentury, the issue of a wife, legally, was the issue of her husband. It didn’t matter who the biological father was, that was the law. Of course, Barry never married and a point comes up, his family back in Ireland and as we’ve heard, four or five children to Louisa Barrow, when he had others as well, the property, the entitlements of the Barry’s of Ireland would never pass to illegitimate children.
Damien: It’s very interesting because Melbourne would have been a small town and he was relatively open about his family ...
Ken: He was here.
Damien: ... yeah, but he was very anxious that his family back in Ireland did not know about his partnership with Louisa Barrow and his children back here in Melbourne.
Ken: Well, certainly his sisters, who he corresponded with. He corresponded with all of his siblings who were in various points of the empire, but he didn’t disclose, back to Ireland, and that’s part of what I’m talking about in terms of this being a special place for him. This was a special place for him in terms of – he would create society. John’s talked about his homilies when he was sentencing and, if you look at the homilies, he’s telling the same homily, right from the start, right through to the end. In fact the homily that he told in sentencing Kelly was precisely the same homily he told to armed robbers and other convicted murderers back in the ‘50s and it essentially went like this...This is a young society. It is a wild society and it’s very very important in such a society to make sure that you are awestruck by the law. It was important to him as a person, considering his self view of his status, and his role, his obligations to create this new community, that sentencing be harsh, be a deterrent.
Damien: So he wanted everyone to be awestruck by the law but he was also very much committed to creating a civil society with institutions like this library and like this university, which could create a better place for everybody and I think that brings us full circle and I’d like to ask all three of you, at the end of the day, was he a scoundrel or a visionary? We might come to John first, John Smallwood.
John: I’ve got no idea [laughs]. As I say, it’s only been the last few days that I’ve understood what occurred with the Aboriginal people and that sort of impressed me greatly. I think he’s a person who on a public morality basis, and I think Ken’s exactly right in terms of one set of rules apply to him and one applied to others, that you would probably describe him as a scoundrel, but I think, if he hadn’t existed, Melbourne would be a far less, don’t know what the word would be, a sadder place I think.
Damien: Robyn, and you?
Robyn: Well, although I got stuck right into Barry when I was talking earlier, I think I’d come down marginally on the side of visionary, more than marginally, mainly because of my connection with this place, the State Library of Victoria.
Barry was the head of the Board of Trustees for many years and I had the honour to be on the Library Board of Victoria for six years and felt his presence there, as I have in my long association of 30 years and more with this place. Some of the research subjects that I’ve followed through, some 19th century lives, they’re people who’ve brushed against Barry, if not literally, figuratively, and whose lives he improved in large part because of his establishing places like this. He really had a passion for them. I don’t want to give the sense that Barry established places like the university and the Melbourne Public Library just because he was ambitious and wanted to make a mark and be a leading man. He had, in the case of books and libraries, a passion. He said that the sight of a fine library collection made his teeth water.
Robyn: Someone doesn’t say that if they feel just kind of ‘nah’ about books and just want to make a mark. He, personally, had a hand in planting the grounds of the Library. We heard that he personally had a hand in shelving the books and his vision very much shaped and drove this place and improved the lives of many people, including myself, who was free to take any book from the shelf and, as a female, and relatively uneducated one, was able to build knowledge and somewhat a better life even so long after Barry’s death. Reading about him, learning more about him and feeling his presence here in this place makes me see him as a visionary and one whose impact for the good is still being felt today.
If I may just say one more thing, interestingly we were talking before about Kelly’s last words, possible last words, to Barry, something along the lines of, as reported in the Argus, ‘I’ll see you where I’m going’. I think he was talking about here [laughs]. What is the iconic centrepiece of the State Library’s collection today? Ned Kelly’s armour. And who greets us in the forecourt of the Library? The massive bronze, knickerbockered figure of Sir Redmond Barry. I love the irony of that. He must be grinding his bronzed teeth together to know that that armour is here and is revered.
Damien: They were entwined in life, they were entwined in death and they remain entwined here at the Library.
Robyn: Exactly, I love it.
Damien: Ken Oldis, scoundrel or visionary?
Ken: Probably scoundrel but certainly scallywag and, thank goodness, because if he hadn’t got up to his sexual high jinx on the boat coming out and spoilt his chances of staying in Sydney like he’d originally planned, he’d never would have come here.
Damien: He had an affair with a married woman on the boat …
Ken: Mrs Scott.
Damien: ... and that ruined his chances of establishing himself in Sydney because that absolutely mortified Sydney society.
Ken: He was an absolute pariah, yes.
Damien: So you’d say at the end of the day, scoundrel or visionary?
Ken: Well, he was a visionary because he was a scoundrel.
Damien: Now, we’ve just hit seven o’clock and we have about five, ten minutes for questions and we have two people with roaming mics. If you have any questions that you’d like to put to any of our speakers could please put up your hand and somebody will come to you with a mic. I should actually point out that this is being recorded for likely broadcast on Radio National and if you could identify yourself as you pose your question please.
Lawrence White: My name’s Lawrence White. I just wanted to ask something of his early life, which I’m ignorant of, and why he left. Where did he study and why did he leave Ireland?
Ken: Essentially there wasn’t enough work to go around. It was pretty hard to make a quid in Ireland in those times. I think in the Munster circuit there was nearly enough work for 20 when there were 40 going around. I think like a lot of people who leave their countries, most people don’t leave their countries because they’re doing better there than opportunities somewhere else.
John: I think that’s right because also when he came out on the boat, with him, but not up to the same high jinxs, was Stall. There were other young, Irish lawyers on it. Barry had at one stage considered trying to practise in London and made, I can’t remember the exact words that he used now but he was asked about could you practise in London, and he very sarcastically said I wouldn’t have a hope. So there were a group of them that came out on the same boat.
Richard Olive: Richard Olive is my name. If you had to read one book to give you an insight into Redmond Barry, which book would you recommend.
John: Well, if you could only read one, I’d read Ann Galbally's.
Robyn: Or something in Latin [laughs] because that was his love.
Damien: Ann Galbally has written a wonderful biography of him but I don’t actually have the title of it in front of me, but it’s a great book.
Robyn: Redmond Barry: an Anglo-Irish Australian is the title of the book. There’s a terrific collection of essays, too, put together in the form of one of the State Library’s La Trobe Journals a few years ago which gives you many different perspectives on the man. So Ann’s is a thorough going and consistent insight into the man and all his facets, whereas this other one comes at him from all his various institutional standpoints with quite a few different voices and eyes looking at him. So it’s worth a look too.
John: And I think also it talks about his contribution to the exhibition in 1866, which was massive. I wasn’t going to talk about that ‘cause we didn’t have time but that was a massive contribution too which is quite fascinating too, the energy put into that.
Robyn: Well, yes, and he took Victorian culture to the world by those means. By the means of staging those grand exhibitions that people did in the 19th century. Again, there he was again, an evangelist for Victoria and its produce, art and culture. Once again.
Sylvia Whitmore: My name’s Sylvia Whitmore. I hope I’m not asking the obvious question but in relation to Ned Kelly, wouldn’t he have been at a significant disadvantage with Redmond Barry because of the class difference and the fact that they were both Irish. Wouldn’t Redmond Barry have perhaps identified Kelly with the Irish rebels from Ireland.
John: No doubt. Can I just with that ...There’s a story, well, this is true, that Barry’s change from Catholicism to Anglican in 1890 took the Queen’s shilling so they’d get promotion in the Army. But quite a significant group of the Barrys remained Catholic and there’s a story, which may be apocryphal but I’m told it’s not, that a cousin, distant cousin of Barry’s was the Irish priest who baptised Kelly’s father, alright? So, whether [laughs], that’s your starting point with it. Now, I think he saw Kelly as part of the unruly aspects that Kim was talking about before. I think the other disadvantage that Kelly had with Barry was, and I’m not going to go into the ... he sentenced his mother and whether he said ‘I wish your son was here too’, that all may well be apocryphal, that could put out a pamphlet in Orbost in 18- so that all may be ...
Damien: I think he was sentenced, he sentenced her for abetting in ...
John: Attempted murder...
Damien: ... attempted murder of … Constable Fitzpatrick had come to arrest Dan Kelly. Dan and Ned ran away, Ellen was left in the house, she and a number of other people who weren’t really involved, were sentenced I think very harshly by Barry, I think that’s the consensus.
John: ... you go three years and, to the mother, and she had a small child at that stage. The other aspect of it which I’ve always, not always but in more recent times, found fascinating is that I think the major problem with the trial was that Kelly was so badly represented, and there’s reasons for that. They were trying to get an adjournment so they sent the most junior barrister in Victoria to represent him. Because what used to happen was if you were in trouble and jammed as a senior barrister, you send up a junior and no judge would let a murder trial go ahead with someone who’d never done a trial before. Bin had only been a barrister for a year and a half and it took him three years to get his matric!
John: So apparently he had a really high belief in his own capacities, but they got stuck, it backfired and they reckon Barry knew that and knew that if he made Bindon do it, he wouldn’t have to face Ireland or Molesworth or any of the really senior council. And his trial was conducted, I think it’s fair to say, badly and I think that was his major problem and, looking at the trial, if it was me I would have had a go at self-defence but that’s now. Whether self-defence could have got up then, for an Irishman shooting a policeman, it wouldn’t have got up in Melbourne.
Barry, despite what he’d said earlier about ‘matters should be left in the country’ had in fact brought the trial down from Beechworth, so Ned knew none of the jurors and that type of thing. He might have beaten it in Beechworth. But that was his major problem – rather than Barry misbehaving during the trial, and death was the only penalty you could impose, I think Ned’s real problems were the absolute inexperience of his counsel in, and how he conducted it. He had a, the solicitor instructing him was very experienced, a man called Gaunson – I don’t know whether you remember with the, when Power without glory was on TV, remember Ron Wren’s lawyer Davey Garside who ‘refrain from panic Mr Wren’. He was the instructing solicitor so he should’ve known, so there was a bunch of stuff that was a bit strange, but on paper you’d go ‘hey’, but Molesworth never asked Barry to, when he was doing the original stuff, never asked him to disqualify himself. That’s my gut feeling to it but it’s probably wrong, you know.
Damien: Now that previous question raised religion and sectarianism, I think that was one of the subtexts of the question – Louisa Barrow, she was Catholic wasn’t she? That’s my understanding.
Damien: So it’s really interesting, I’m wondering, one, he was prepared to enter into a life partnership with a Catholic, but was one of the reasons that he wouldn’t marry her also because she was Catholic, or were there a whole bunch of other reasons about her education or her general class status independent of her religion?
John: I wouldn’t have thought that Barry would consider Louisa Barrow, let alone perhaps most if not all of the women that he came across in Port Phillip, worthy of a lawful, permanent marriage with someone such as himself.
Damien: Irrespective of religion?
John: I think religion would have been in the queue, but some ways down it.
Robyn: Yeah, I would tend to agree and I think the waters are muddied about her religion anyway. I believe he built her a church out in, what’s now suburban Melbourne, but was the country, where he set her up on a property out at Syndal. It’s an Anglican church.
Damien: Ah, but weren’t the kids baptised by a Catholic priest?
Robyn: Oh, I’m confused and I think he was too [laughs].
Damien: Any other questions?
Audience member: Just a quick comment that he still has some effect because on the anniversary of Ned Kelly’s hanging, the locks on the doors of the Redmond Barry Building in the University of Melbourne were filled with glue.
Damien: When was that? What date was that, what year was that?
Audience member: About 30 years ago but it certainly happened. The other question is Barry, before this library was established, he opened his own private library to members of the public.
Robyn: That’s right. He did. Redmond Barry is said to have had Victoria’s first public library. Of course, John Pascoe Fawkner, Melbourne founder, had a circulating library in the bar of his hotel in the 1830s but that was commercial catnip to a certain kind of drinker, one would imagine. But Barry, in his house, which was built in Bourke Street in 1842, had a room off the kitchen. I don’t know if it was his library or a suitable library which he opened to decent men to select volumes from, and again, with this self-improving impulse. When that building was slated for demolition in 1923 there was a suggestion, obviously it wasn’t taken up, that it should be taken down brick by brick and re-installed in the grounds of the State Library of Victoria, possibly within sight of his statue out the front there. So, just imagine, a little shelter shed to wait for the tram, have a bit of a smoke, out the front there and dip into a few of Redmond’s choice volumes while you were there. But again, it appeared to be a generous and selfless impulse that made him do that.
Damien: Any more questions? We have time for another one or two.
Fran Alcock: Hello, my name’s Fran Alcock, that was all very stimulating thank you and I’m perhaps responding to Robyn’s comments about Barry being present in the building and it might be useful to remind us all that the second great reading room in the State Library is the Redmond Barry Reading Room and you might ask me why, well we know why after tonight. But he especially wanted the people of the colony of Victoria to have available to them the very best publications of the world and the world in Barry’s terms, and probably most other people in the nation at the time, was the Western world and so the first collections indeed were some of the great works of Western literature. And in the Redmond Barry Reading Room we, in calling it so, wanted to respond to the fact that in Australia and everywhere else, we live in a world of learning and as Australians, we take our learning from the world around us, so represented in that collection of publications from the rest of the world and, as Australians, learn and develop and create new works, they’re housed in the second reading room, the La Trobe Reading Room after our other great founder. So a little bit of a circular turn but it’s our place in the world and Redmond Barry’s really responsible in a sense for the very real contribution that he was able to make to the rest of our nation. Thank you.
Damien: Thank you. Any other questions?
Jenny Stewartson: Jenny Stewartson. I was just wondering what Barry’s role was in the establishment of the University of Melbourne and possibly the Melbourne Club.
Robyn: Oh, I don’t know. I haven’t read up on the establishment of the University of Melbourne, except that he was an instigator if not the instigator, so a key role, yep.
John: The Melbourne Club already existed.
Robyn: It did, it sure did [laughs].
John: Very much so. He was a supporter of it, but it was well and truly underway. My understanding is he’d always believed there should be a university and when it started, the first few years there were very very few students, like very few. And he persisted with others. I couldn’t tell you who he was associated with or anything else, but even despite the lack of numbers that were endeavouring to use it, he was very persistent. But that’s about all I know about it.
Damien: My understanding was that, from reading Ann Galbally’s, was that he was also very clear that he wanted it to be a secular institution and I think a lot of universities in those days tended to be tied to one church denomination or another but he was very clear – this was to be an institution which was secular. And I think one very much devoted to the classics, I don’t think he was that interested, in fact I think he was a bit hostile towards the profession, so he wasn’t really interested in law and he wasn’t really interested in medicine or engineering ...
Robyn: Or sciences ...
Damien: ... or the sciences, yeah. He was interested in classical learning. Is that right?
Robyn: Indeed, yes.
Antoni Jach: Antoni Jach. A comment in relation to Redmond Barry’s hatred of pilfering – there’s the magnificent 23 volume description of Egypt in this collection and on the 877 engravings in that 23 volume set, every one of those engravings has a stamp on the image ‘Melbourne Public Library’. Sometimes it’s on the edge of the image, but sometimes it’s in the middle of the image, in the sky, and so maybe that’s, it bears some relationship to his fear of the work being stolen.
Robyn: And I’m sure it wasn’t just his, I’m sure that that’s a fear and a concern born by librarians ongoing and throughout the ages, but you’re right, you can see examples of that in the State Library’s online catalogue, the images, and you curse that bastard who put that stamp there often because it mars what would otherwise be a thing of beauty. But yeah, that’s a library impulse I think.
Damien: Now we have time for just one last question, so I don’t know how to – oh, there’s a hand here. This is I think the only one we can see, so you’re the lucky winner.
Ron Whitmore: Ron Whitmore. We’ve talked a lot about Barry’s attitude to women and his mistreatment of women in our standards, but is it not reasonable to suggest that he brought those attitudes with him from Ireland where the habit of the landed gentry there was to use and abuse their, the wives of their tenants at will. And he would have seen this, given his aspirations to his class, would have seen this as normal behaviour and perhaps is not so detrimental to his reputation.
John: Well I think that’s absolutely right. The error would be to think the conventions that he followed and the personal practises that he followed were those that were general and that’s people always point to ‘and he’s a naughty boy’ and ‘he’s immoral’ and ‘the bishop won’t have intimate social relations with him anymore’, I think that was 1860 or something. Because they’re, it’s the general convention of society that they’re talking about, whereas he didn’t see it that way and I think you’re completely right. He brought his conventions with him and they were the conventions of people of his rank.
Robyn: And it’s a good point to make, I mean it’s easy to look across his life from all sorts of angles and think that he was a scoundrel or, you know, someone who didn’t meet our values and our moral standards but yeah, he was a man of his time and it’s a mistake for us not to see it that way, so it’s a really good point to make.
John: I think that’s right, I think what he did was he took it to a new level.
[Audience laughs and applauds]
John: The part that fascinated me, and this is what I was saying before about how people have just different perceptions – his conduct on the boat, to get to the point where the captain has confined him to his cabin where she then visited him to try and stop him, I just find astonishing. So yeah, I think you’re dead right.
Damien: While he keeps a cricket score of his assignations with the good Mrs Scott.
Robyn: Ten times one day.
John: I didn’t believe that.
Robyn: Nor did I, no [laughs].
Damien: That’s fantastic.
Robyn: And it was in the bush I think, it was in the bush with Mrs Scott, ten times he said. Just so you know.
Damien: A man of his times. I’m afraid that that’s all we have time for this evening. Great way to end it. I can’t help but wonder what Redmond Barry, somewhere up there, would be making about all the fuss around his 200th birthday and a discussion that looks at both his extraordinary achievements and some of his flaws. And I suspect that just maybe he really wouldn’t care what we were talking about him and I suspect that he’d be more likely to be proud of the imaginings, the conversations, the competing histories, the arguments that are embodied here tonight and embodied in this building and are springing more broadly from this city and from this civil society that he helped create. So I think he’d part of him would be pretty chuffed.
And that’s all we have time for this evening and I’d like to acknowledge Suzie Gasper, who is the events coordinator here at the State Library, and also RN technical producer Richard Girvan for their hard work this evening. And of course I’d also very much like to thank our three guests – historian and author Robyn Annear, County Court judge John Smallwood and barrister and author Ken Oldis. I would like you to please help me thank.