Concerning the fact of the barrister and the solicitor for the defendants having been seen drinking in an hotel bar with the jurymen during the progress of a County Court case, the following comments appeared as a leading article in The Australian Law Times of March 20, 1897:—
“A Question of Propriety.
“Ponting v. Huddart, Parker & Company.
“When Ponting, the plaintiff, escaped from his watery grave when the S.S. Alert foundered so suddenly, and was cast upon the back beach at Sorrento, he, no doubt, thought himself a fortunate man. Most solitary survivors from wrecks would so think themselves, and would settle down to a quiet life. Not so Ponting. He started to voyage on a sea hitherto unknown to him—bestrewn with far more wreckage than sweeps to and fro in the cross seas that wash our southern coast. Ponting went to law and sued his owners for damages. Now, law in the Supreme Court is not always without its risks, but law in the County Court and before a jury is never without its perils. We all know the result—verdict for the defendants. Of course, in a case of this kind there was the inevitable new trial application, and that unsuccessful, the still less inevitable (to use the phrase) appeal. And all because the counsel for the defendants was observed, after winking at the jury—in itself a venial offence—to go across to Menzies’ Hotel during an adjournment and have a ‘glass of wine’—that is the euphemism for whisky and soda—with the gentlemen, or some of the gentlemen, of the jury.
PONTING AND “VICTOR HUGO” IN 1899.
“The counsel in question was, undoubtedly, very foolish to do so. Counsel remarked, in arguing the point for the respondents, that he was ‘heedlessly indiscreet’; instead of being, we presume, merely indiscreet, or, at worst, indiscreet with a certain amount of discretion; or, as it might be put, he should have gone to Menzies’, being discreetly thirsty, and have drunk at discretion by himself; i. e., failing the proximity of some fellow-counsel, whom he might have invited to drink with him, or failing such counsel accepting such invitation—two eventualities as uncommon in Melbourne as our old friend Fearne’s ‘Contingent Remainders’ are in the Mallee.
“Instead, therefore, of going ‘hatting,’ or indulging in a ‘Johnny Woodser,’ anglicé drinking by himself, he, heedlessly indiscreet, or heedless and indiscreet—as one with a keen scent for good English would prefer—hobnobs with the jury. He should have known better. That is to say, he knew better and should have acted better—but did not. In the first place, the jury was probably a common jury; or, if a special jury, they were probably still more common, with whom no eminent counsel should foregather; because special juries generally consist of publicans, ex-publicans, or retired gaol-warders, or a proportion of each; worthy citizens, doubtless, good fathers, good husbands, and so forth, who paying so much rates per annum for their ‘bits of property’ are thereby and therefore pre-eminently qualified by law, reason, and common sense to decide in a jiffy all those subtle points of tort or contract in which ordinary bodies, from the Full Court to the Privy Council, find so many difficulties.
“The jury having given in their verdict in favour of the defendants, the majority of the Full Court have decided that this drinking business was a good ground of appeal. Now, although, as a rule, what everybody says must be untrue, we are inclined to agree with the majority in this case, and to disagree with the minority, consisting of A’Beckett, J. That learned Judge said ‘he had the misfortune to differ from his learned brothers as to the course which should be taken with regard to the appeal.... What occurred was done openly, and it was the very last mode of approaching a jury improperly, that any man in his “sober glass of wine” senses would attempt. They might say it did not look well to see counsel treated by jurymen.... Being convinced that the jury were not influenced, and that the fact that counsel and solicitor had accepted a sixpennyworth of hospitality from one of the jurymen would not induce anyone to suppose that they would be influenced, he thought this new trial should not be granted.’
“That is all very well, but Mr. Justice A’Beckett seldom practised on the common-law side of the Court, and, as Ulpian says (we translate):—