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Judges
18 March, 2010  
Henry Cosgrove

Obituary … Peter Lyons fondly remembers one of Tasmania’s greats … Henry Edward Cosgrove … War vet, son of a premier, barrister and judge … He found a place to belong


imageA great Australian legal personality died a week or so ago, but his passing was barely mentioned in the press.

Henry Cosgrove was for a long time a lion of the legal profession in his state.

Tasmania is a fascinating place where the lawyers are relatively few and so varied in ability that the prominent ones often assume a certain exoticism or allure.

Cosgrove was of medium height, powerfully built and often struck fear into the hearts of counsel.

He had a magnificent speaking voice, a common sense approach to the law and the ability rapidly to identify and grasp the main point in a case.

He fought in the Second World War. At the time his father was Premier. Sir Robert Cosgrove, as he later became, headed the government for 18 years – Tasmania’s longest serving Premier.

Henry was in private practice in Hobart for many years before becoming Crown Advocate, Chairman of the Board of Legal Education and the Law Reform Commissioner.

He was also a Judge of the Supreme Court for 11-years.

In court, he wasted no time. He was firm and decisive and fair but one got the feeling he missed the arena.

He had been a superb advocate although things did not always go to plan.

One day he appeared for a nervous, middle-aged woman. He began her examination-in-chief by calmly asking her name and address. She blurted all her evidence out without stopping and then said to her mortified counsel, “Did I get all that right Mr Cosgrove?”

Cosgrove delivered a stirring paper to the Tasmanian Bar Association on cross-examination. He threw in terrific cricketing metaphors and likened the experience to a stomping warhorse with the smell of cordite in its nostrils.

Cosgrove let everyone know where he (and they) stood, but he could be funny.

He once wrote to me:

“Either I failed to make myself clear, or you misconstrued my last letter. The former being inconceivable, the latter must be true.”

On another occasion, the present Solicitor General, Leigh Sealy, sought to persuade Mr Justice Cosgrove that the law of occupier’s liability had changed after the decision of the High Court in Safeway v Zaluzna.

The judge did not agree.

Sealy persisted.

“Have you finished speaking, Mr Sealy?

Not quite, your Honour.

You’re entitled to keep speaking, but I’ve stopped listening.”

He once tried a brutal case of two men jointly charged with murder called Bowden and Unsworth.

Unsworth’s father-in-law had suffered 29 blows from an axe. The judge formed an early view that Unsworth was far more culpable than Bowden. Henry Cosgrove told the jury:

“Now it will become obvious to you that what I am about to say is not mere repetition of counsel’s arguments but represents my own reasoning and to some extent my own opinion.

Also it does tend to favour Bowden against Unsworth.

Now it is very important therefore that I repeat – even if it bores you – that you are the judges not me.

My words carry no more weight than counsel’s. The fact that I sit up here in special robes; that everyone stands-up when I come into court, everyone stands-up when I go, does not make me eminently wise and intelligent.

People show respect for my office, not for my intellectual prowess. I am no different from counsel. It is not many years ago when I was sitting down there saying, ‘If it please your Honour’ and so forth.

I am just a man and what I say is just a man’s comment. So you listen to me, but listen critically, and apply your intelligence to what I’m about to say.”

Unsworth was convicted of murder and Bowden acquitted. The jury found Bowden guilty of being an accessory after the fact.

The Court of Criminal Appeal upheld the verdicts and Cosgrove’s directions.

Many years later, Unsworth was released from prison and murdered again.

Henry Cosgrove had a shy and modest side. Although he barracked loudly at the football and played golf with gusto, he avoided public functions.

I persuaded him to speak at our admission to the bar, but the judge was reluctant at first. He summoned me to his chambers. His was a forbidding presence.

“Why have you asked me and not another judge?” he said.

I replied that there would be lots of mums and dads, girlfriends and boyfriends there and he would speak in a way that everyone would understand.

“Are you saying I’m common?” he snapped.

Eventually, he made a witty speech referring to those who had been admitted as “it”.

“It,” he said, “will now be the most conceited member of your family. It will tell you about its triumphs. It will cross-examine you in bed. It will become insufferable.”

The speech went down a storm but Cozzy fled soon after making it.

To the profession he loved Henry Cosgrove brought the no-nonsense realism of an ex-serviceman; great legal ability and industry; a wonderfully economical way with words; humour, passion and no small measure of colour.

Some years ago, he wrote to me about his career:

“I found what I wanted in the law – a purpose which engrossed me to such an extent that the myriad other activities to which I was drawn became subservient – not gone but much declined in importance.

And I was not engrossed simply to make money (although it is foolish to deny the necessity of that) but because it gave me intellectual satisfaction, comradeship and a sense of serving the community. I was lucky!

I think we all need to belong to an order of persons pursuing the same object – like monks, soldiers and so on, where we find that order depends on personality, circumstances and all sorts of things. Some find it on the stage, some in politics, some in a monastery and some in pursuit of the Holy Grail. The important thing is to find it.”

He had many private words of kindness and encouragement for young practitioners. They will never forget him.

He retired from the bench at 65. It was too early. As he said goodbye to his profession, he quoted Chesterton.

“For there is good news yet to hear and fine things to be seen,
Before we go to Paradise by way of Kensal Green.”


Peter Lyons