crossing and recrossing a state boundary was to avoid road tax by bringing
the journey within the scope of s92 of the Australian Constitution. It stipulated
that trade, commerce and intercourse among the states was to be absolutely
free, and thus potentially exempted the border crossing journey from the tax.
In giving his judgment Fullagar cited the line from a GK
Chesterton poem:
“The night we went to Bannockburn by way of Brighton Pier,” which was also
a circuitous journey.
236
Despite the misgivings of jurist such as Sir Owen Dixon, many judges use
literary allusions or quotations.
237
They are, however, more common
among
English
238
and United States judges
239
than Australian. Sir Harry Gibbs
defended the practice convincingly, arguing that literary quotations and
allusions can be used when “relevant”.
240
They can be relevant, he argued,
when they are “entirely germane to the judgment” because they “assist its
reasoning”.
241
However, the decision to use them is a matter of “taste”.
242
One specific incident is worth recall. At the end of World War II there were
many trials for war crimes. One of the defences offered (and it generally did
not succeed) was superior orders, that the soldier had done what he did
because he was ordered to do so by a lawful superior. Michael A Musmanno,
a United States Navy lawyer, summarised this defence by drawing on
Tennyson’s famous poem, The Charge of the Light Brigade: “Ordinarily, in
war, the proposition of unquestioning obedience involves a set of
circumstances which subjects the subordinate to the possibility of death,
wounding or capture. And it is traditional in such a situation that, in
consonance with the honor of his calling, the soldier does not question or
delay but sets out stoically to face the peril and even self-immolation. Lord
Tennyson immortalised this type of glorious self-sacrifice when he
___________________
236
Gibbs (1993) pp 499-500. The quotation is taken from the poem by
GK Chesterton “The Rolling English Road”, which is cited by Justice
Fullagar in Harris v Wagner (1959) 103 CLR 452, 461.
237
Examples of literary allusions and quotations are Perrin v Morgan
[1943] AC 399, 407; Liversidge v Anderson
[1942] AC 206, 245; and R v
Redgard (1956) St R Qd 1, 6. See Gibbs (1993) p 500.
238
Kirby (1990) p 697. See, for example, Sydall v Castings [1967] 1 QB
302, 321.
239
Kirby (1990) pp 696-697, citing Snyder (1987)
240
Gibbs (1993) p 500
241
Gibbs (1993) p 500
242
Gibbs (1993) p 500
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