Australian Dictionary of Biography

John Vincent William Barry (1903-1969), by unknown photographer

National Library of Australia, nla.pic-an22986320

Sir John Vincent William Barry (1903-1969), judge and criminologist, was born on 13 June 1903 at Albury, New South Wales, eldest child of Australian-born parents William Edward Barry, a house-painter of Irish descent, and his wife Sarah Lena Jeanette, née Keene. Educated at a local convent school, at St Patrick's College, Goulburn, and at the University of Melbourne, in 1921 John was articled to Luke Murphy and two years later qualified as a lawyer through the articled clerks' course. In this period he was involved in a murder trial which resulted in the accused being hanged. Barry became and remained an opponent of capital punishment.

Admitted to the Victorian Bar on 3 May 1926, he read with (Sir) Eugene Gorman who claimed to have learned more from Barry, with his 'high intelligence and precocious maturity', than Barry, twelve years younger, learned from him. Handsome and imposing, Barry progressed rapidly as a barrister. He proved himself versatile, initially developing an extensive jury practice, and later an appellate and High Court practice.

On 16 August 1930 at the district registrar's office, Mosman, Sydney, he married Ethel May Pryor (d.1943). He was a foundation vice-president (1935) of the Australian Council for Civil Liberties (president 1946) and foundation secretary of the Medico-Legal Society of Victoria (president 1948-49). While a member of the governing body of the Victorian Bar, he spearheaded measures aimed at curbing the discourtesy of Justice (Sir) James Macfarlan. Barry joined the Australian Labor Party in 1939, stood unsuccessfully for the Federal seat of Balaclava in 1943 and was a member of the Victorian central executive in 1945-47. A member of the Australian Journalists' Association from 1943, he was elected chairman of its ethics committee. He was, as well, a member of the Overseas Telecommunications Commission in 1946-47.

At the Bar, Barry's progress was not diminished either by his willingness to represent unpopular causes, or by his political activism. Appointed K.C. in 1942, he was counsel assisting (Sir) Charles Lowe in the commission of inquiry into the Japanese air-raid (19 February) on Darwin. Next year he represented the Federal Labor politician Eddie Ward before the royal commission into the 'Brisbane Line'; in 1944 he was appointed commissioner to investigate the suspension of civil government in Papua. Arthur Calwell pressed hard in Federal cabinet to have Barry appointed to a vacancy on the High Court in 1946, but the attorney-general Dr H. V. Evatt preferred to woo the Catholic vote by appointing Sir William Webb from Queensland.

On 14 January 1947 Barry was appointed to the Supreme Court of Victoria. Next year, he presided over R. v. Jenkins, ex parte Morison, which was to become famous as the 'Whose Baby' case, a bitterly-contested custody fight over a child who had been accidentally swapped in hospital. To Barry's displeasure, his decision to direct that the child be returned to its natural parents was reversed on appeal, with the ultimate outcome resting on the decision of Webb. On 28 July 1951 at the office of the government statist, Melbourne, Barry married 34-year-old Nancy Lorraine Hudson, a dress designer.

In his early years on the court Justice Barry was the one progressive element on an extremely conservative bench, but he soon showed that he was able to handle with ease any type of case. Many of his decisions broke new ground, particularly in the field of criminal law. During his later years on the court he sat almost exclusively in the matrimonial jurisdiction where he paved the way for no-fault divorce. It was said that he could find adultery proved on the evidence of an amorous glance. While it was unusual for a man of such distinguished intellect to choose to specialize in divorce, it suited the chief justice to have a judge who volunteered to do the work and who could do it so expeditiously. It also suited Barry to have more time for his interest in criminology. He continued to participate in appellate work.

After his appointment as a judge, Barry gave up most of his political activities, but he took on a great deal of extra-judicial work, concentrating on his writing and on the field of criminology where he was a crusader. Foundation chairman of the board of studies in the department of criminology at the University of Melbourne from 1951, and of the Victorian Parole Board from 1957, he remained deeply involved in the work of both until his death. He had advocated the introduction of the parole system as a means of conditioning the public to accept an alternative to imprisonment, and the lead that he set in parole was substantially copied elsewhere in Australia. He had a greater influence on Australian penological theory and practice than any contemporary.

In 1955 and 1960 Barry led two Australian delegations to United Nations congresses on the prevention of crime and on the treatment of offenders, the first at Geneva and the second in London. In 1960 he was appointed chairman of the section of the United Nations Congress that examined short-term imprisonment. So valued were his contributions to criminology in the Victorian and Australian contexts that Barry's memory would be perpetuated by having a lecture (University of Melbourne) and a library (Institute of Criminology, Canberra) named after him.

A prolific writer, he claimed that he did not find writing easy. His book, Alexander Maconochie of Norfolk Island (1958), was an outstanding contribution in the spheres of criminology and Australian history. It substantially corrected previous misapprehensions as to the significance of Maconochie and led the University of Melbourne to confer a doctorate of laws (1969) upon Barry. His study (1964) of John Price, the inspector-general of penal establishments in Victoria who was murdered by convicts in 1857, has a special value in its analysis of cruelty and the abuse of power.

Barry was the co-author of texts on Australian criminal law and on the ethics of advocacy; he also contributed to the Australian Dictionary of Biography. He wrote journal articles on many subjects, although aspects of crime and punishment remained the primary focus of most. The first of his substantial articles in the Australian Law Journal had appeared in 1931. Lectures which he was unable to deliver in 1968 were published posthumously as The Courts and Criminal Punishments (1969). He admitted that many problems confounded him: he was baffled that some people acted criminally and others did not, concerned that some people might have been born with less capacity than others for pity or honesty, and determined that ignorance of such matters should be lessened. His writings evidenced his strong conviction that hanging, flogging and like punishments brutalized society, and were ineffective.

If the volume of Barry's learned writing was enormous, the number of letters that he wrote was prodigious. He corresponded regularly with the British reformer, Baroness Wootton of Abinger, who wrote: 'As everyone who knows him must agree, he is one of the most learned, stimulating, vital and kindly men that anyone could ever wish to meet. That he should also be a judge is a constant delight and astonishment to those whose judicial stereotypes are derived from the United Kingdom'.

Although he was a highly intelligent and industrious man, ready to be innovative and to adopt a more scientific approach to the law, Barry was also a person of great complexity, exemplified by many apparent contradictions, the most notable being his handling of his fellow men and women. He was a willing and courteous helper to many, whether judges seeking a second opinion, or academics with thorny curriculum or departmental problems, or prisoners wanting to be paroled. But 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 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.

He was a perceptive critic, but his capacity for probing and sceptical analysis was not always appreciated. His disposition to stimulate others to action by persistently irritating them was also resented. Another of his annoying idiosyncrasies was his perfectionist attitude to his writing, which made him bristle at editors' suggestions of the slightest change.

Critical of others who accepted knighthoods, Barry was able to rationalize his own acceptance of the honour in 1961 as being the necessary consequence of 'having followed precedent'. 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.

Late in life Sir John graduated from the University of Melbourne (LL.B., 1963). In 1966-69 he was the senior puisne judge of the Supreme Court. Barry died of cancer on 8 November 1969 at Armadale, Melbourne. A rationalist and sceptic for most of his life, he was cremated without a religious service. His wife and their daughter survived him, as did the son and daughter of his first marriage.

Chief Justice Sir Henry Winneke said of Barry in his tribute delivered in court on 11 November 1969: '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'.