Justice William Charles Crockett AO - Victorian Bar
Justice William Charles Crockett AO - Victorian Bar Justice William Charles Crockett AO - Victorian Bar
Soon thereafter you also took silk inNSW, 5 South Australia 6 and New Zealand. 7During this time, you appeared regularlybefore the High Court of Australia, onone occasion opposed to Jim MerrallsQC in Brown v West 8 on the limits of thepower of the Executive. You appeared inthe High Court on a matter involving theconstruction of the expression a “proprietarymaritime claim” within the meaningof the Admiralty Act 1988 (Cth) 9 and inthe Constitutional case of Re Tracey: ExParte Ryan, 10 where the Court acceptedyour Honour’s argument that the powerexercised by service tribunals stands outsideChapter III of the Constitution.Your Honour also appeared in immigrationmatters 11 and in matters involving taxationlaw, including Coles Myer FinanceLimited v Federal Commissioner ofTaxation. 12 Such as it was, when theVictorian Court of Appeal was created in1994, you were perfectly placed for theState of Victoria to recognise your specialistadvocacy, and appoint you to theappellate Bench.Upon your appointment, the Bar saidthat it looked “forward to receiving thebenefit of [your] Honour’s clarity and pithinessin previously clouded areas of law”. 13That expectation has been rewarded. Yourcivil law decisions are highly regarded fortheir lucidity and intellectual rigour andhave been approved by the High Court.Most recently, in Stingel v Clark, 14 concernedas it was with limitation periods onproceedings for intentional trespass to theperson, Gleeson CJ, and Callinan, Heydonand Crennan JJ, preferred your dissentingjudgment in the Court of Appeal as “thebetter view”. 15 They went on to permit discretionaryextensions of time by applyingthe earlier decision of Mason v Mason, 16in which you gave the leading judgment.Your Honour’s learned judgment on lettersof credit in Fletcher Constructionv Varnsdorf 17 and on the construction ofthe provisions of the Corporations Act2001 (Cth) designed to avoid constitutionalinconsistency in Tat Sang Loo vDirector of Public Prosecutions 18 areamongst my personal favourites, despitemy being on the wrong side.Your greatest contribution from theBench, however, has been your significantcontribution to Victorian criminallaw, where it has been said that you have“brought order to chaos”. Your decisionsspan the breadth of the criminal law process.Your decision in R v Best 19 is the leadingVictorian authority to date on similarfact evidence and the first comprehensiveCourt of Appeal interpretation of s.398A26of the Crimes Act. Your decision in R vTJB 20 is the standing authority on theseverance of presentments in relation tosexual offences. The process of grantingleave to appeal against convictions wherea plea of guilty has been recorded butwhere the accused could not lawfully beYour associates areunanimous in viewing youas their “professionalideal”. They all recognisedthat you are a deeplycompassionate judgewhose justice was alwaystempered by the plight ofthose who came beforeyou.convicted is guided by your judgment in Rv Tait 21 and you have also provided standardprinciples in relation to jury directionsin R v Kotzman. 22 The manner in whichthe Office of Public Prosecutions draftspresentments has now changed under theguidance of your decision in R v Coffey. 23I understand that within the Court, youhave established a “Red Book” of principalsentencing cases 24 from the Court ofAppeal, which over many years you andyour associates have updated and circulatedto all members of the Court. I amtold that this Book has been so successfulthat it is now in its second edition as theBlue Book.It is clear from all of this that yourHonour has been at the forefront ofVictoria’s developing jurisprudence andhas never shied from this task. Just lastSeptember, your Honour handed downyour decision in TSL v Secretary tothe Department of Justice 25 which wasone of the first decisions to engage withVictoria’s new Charter of Human Rightsand Responsibilities. Your Honour wasrequired to construe the word “likely”in s.11 of the Serious Sex OffendersMonitoring Act 2005 (Vic). Section 11refers to a medical expert’s assessmentof the likelihood of serious sex offendersre-offending. Your Honour, whileacknowledging that the Charter is not yetwholly in force, drew from the recognitionin the Charter that a human rightmay only be subject to such limitationsas can be demonstrably justified in a freeand democratic society, to observe that“the nature of our society is a legitimatefactor to take into account in construing… legislation”. 26 This will no doubt be animportant first step in the judicial considerationof the Charter. While other jurisdictionssuch as the United Kingdom, NewZealand and Canada have well-establishedjurisprudence on human rights laws, thisis a novel area for Victorian courts and weare sad to think that we will not have morejudgments from your Honour to guide usas you have guided us in the past.Your associates are unanimous in viewingyou as their “professional ideal”. Theyall recognised that you are a deeply compassionatejudge whose justice was alwaystempered by the plight of those who camebefore you. Former President Winneke isknown to refer to your “nose for injustice”.There is no doubt, however, that you arenonetheless shrewd in judgment, perhapsbest illustrated in your own words fromR v Bernath where you surmised that“(t)his was not a case of the serpent’sbeguiling or of a trap for the unwary innocentas opposed to a trap for the unwarycriminal”. 27When Albert Monichino finished readingwith your Honour, you gave him a bookof The History of the PeloponnesianWar by Thucydides and inscribed in it:“There is more to life than law.” Now thatyour Honour is retiring you will have moretime to spend on your vast array of interestsoutside the law. Your Honour is widelyread and cultured, and has interests in allthings ancient, classic, linguistic, militaryand travel-related. These interestsare active pursuits. You speak severallanguages fluently and are not averse tocompleting intensive summer courses atuniversities around the world. All evidencesuggests that you will completemany more adventures abroad, returningregularly to bestow upon your many godchildrenfurther gifts of illustrated classicalworks in ancient Greek.Your Honour can retire from the Benchproud in the knowledge that your careerhas been characterized by excellence,dedication, compassion, and generosity,and that you have made significant contributionsto the clarity and substanceof the law of Victoria, most particularlyin criminal law, where all those who willcome before the courts, be they lawyers,jurors, victims or defendants, will have thebenefit of your judgments.On behalf of the State of Victoria, mayI extend to your Honour the warmest offarewells and very best wishes for yourretirement.
Notes1. Trade Practices Commission v GeorgeWeston Foods Ltd (No. 2) (1980) 43 FLR55.2. (1980) 28 ALR 319.3. Coachcraft Ltd v SVP Fruit Co Ltd (1980)28 ALR 319, 327.4. (1985) 60 ALJR 70; 64 ALR 19.5. 1988.6. 1990.7. 1994.8. (1990) 169 CLR 195.9. The Owners of the Ship Shin Kobe Maruv Empire Shipping Company Inc (1994)181 CLR 404.10. (1989) 166 CLR 518.11. For example, Chan v Minister for Immigrationand Ethnic Affairs (1989) 169CLR 379.12. (1993) 176 CLR 640.13. William Gillies, “Justice of Appeal Callaway”(1995) 93 Vic Bar News 37.14. (2006) 228 ALR 229.15. (2006) 228 ALR 229, 238. Warren CJexpressed a dissenting view, similar interms to that of Callaway JA, which alsofound favour with the High Court.16. [1997] 1 VR 325.17. [1998] 3 VR 812.18. [2005] VSCA 161 (Unreported, VictorianCourt of Appeal, Winneke P, Charles JA,Callaway JA, 29 June 2005).19. [1998] 4 VR 603.20. [1998] 4 VR 621.21. [1996] 1 VR 662.22. [1999] 2 VR 123.23. [2003] 6 VR 543.24. Including, for example, R v Bernath [1997]1 VR 271 (used as authority for the propositionthat appeal judges must be carefulnot to exceed their jurisdiction whenassessing what weight sentencing judgesshould put on particular aggravating andmitigating factors); R v VZ [1998] 7 VR693; R v Tran (2002) 4 VR 457.25. [2006] VSCA 199 (Unreported, VictorianCourt of Appeal, Callaway Acting President,Buchanan JA, Coldrey AJA, 29 September2006).26. [2006] VSCA 199, [15].27. [1997] 1 VR 271, 277.27
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Notes1. Trade Practices Commission v GeorgeWeston Foods Ltd (No. 2) (1980) 43 FLR55.2. (1980) 28 ALR 319.3. Coachcraft Ltd v SVP Fruit Co Ltd (1980)28 ALR 319, 327.4. (1985) 60 ALJR 70; 64 ALR 19.5. 1988.6. 1990.7. 1994.8. (1990) 169 CLR 195.9. The Owners of the Ship Shin Kobe Maruv Empire Shipping Company Inc (1994)181 CLR 404.10. (1989) 166 CLR 518.11. For example, Chan v Minister for Immigrationand Ethnic Affairs (1989) 169CLR 379.12. (1993) 176 CLR 640.13. <strong>William</strong> Gillies, “<strong>Justice</strong> of Appeal Callaway”(1995) 93 Vic <strong>Bar</strong> News 37.14. (2006) 228 ALR 229.15. (2006) 228 ALR 229, 238. Warren CJexpressed a dissenting view, similar interms to that of Callaway JA, which alsofound favour with the High Court.16. [1997] 1 VR 325.17. [1998] 3 VR 812.18. [2005] VSCA 161 (Unreported, <strong>Victorian</strong>Court of Appeal, Winneke P, <strong>Charles</strong> JA,Callaway JA, 29 June 2005).19. [1998] 4 VR 603.20. [1998] 4 VR 621.21. [1996] 1 VR 662.22. [1999] 2 VR 123.23. [2003] 6 VR 543.24. Including, for example, R v Bernath [1997]1 VR 271 (used as authority for the propositionthat appeal judges must be carefulnot to exceed their jurisdiction whenassessing what weight sentencing judgesshould put on particular aggravating andmitigating factors); R v VZ [1998] 7 VR693; R v Tran (2002) 4 VR 457.25. [2006] VSCA 199 (Unreported, <strong>Victorian</strong>Court of Appeal, Callaway Acting President,Buchanan JA, Coldrey AJA, 29 September2006).26. [2006] VSCA 199, [15].27. [1997] 1 VR 271, 277.27
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