Eureka: Democracy on Trial

On the 18th and 19th of March of this year, 160 years to the day, BottledSnail Productions, (in conjunction with the Supreme Court of Victoria) produced a reenactment of the trial of Timothy Hayes. Eureka: Democracy on Trial. A condensed version of the original transcript from the trial itself was performed in the Banco Court by a 16 person cast, largely made up of members of the Victorian Bar.

Mutton chops and live Irish fiddling included, the production retells the story of a man on trial for his life during one of the most controversial periods in our history. The trial, which recounts the incivility of the Ballarat goldfields, the bloody history of the Eureka stockade and the unrelenting protest of diggers against injustice and unfairness, came to life inside the Victorian Supreme Court on 18 and 19 of March.

The reenactment was performed in the incredibly ornate and well-preserved Banco Court; providing the ideal setting for the piece. The production commenced with a rousing Irish fiddler (Chris Fitzgerald of The Corkman) – immediately setting the scene and transporting the audience back in time. The script, skilfully put together, mimicked a modern-day trial, and we watched, as members of the public gallery, as our ‘learned friends’ opened and closed their cases. It was remarkable, given that the script was extracted from the original transcript itself, to observe how much things have (and haven’t) changed since 1855. Perhaps, most poignantly, what it means to be on trial for your life.

Timothy Hayes opens the trial by informing the judge, Justice Redmond Barry, that he will be represented by Mr Cope, a different lawyer than expected. One shudders to think about commencing proceedings with a new lawyer, and yet every year, hundreds of litigants arrive at court hoping the duty lawyer will be able to squeeze them in. Some don’t even seek representation.

Throughout the reenactment, a number of witnesses are called. Many of the witnesses for the prosecution talk of their involvement in what took place the morning of Sunday the 3rd of December, when troopers stormed the stockade. A large portion of the examination centres around who fired first, and whether or not the diggers rallied with an intention to overthrow the authorities, or to simply protest the excessive licence fees.

Although it may be hard for someone to relate to the experience of the miners (although I did just receive my car registration fee the other day, and my word that is expensive), one can’t help but reflect upon the tenacity and vivacity of those who did rally. The actions of the diggers speak volumes about the potential strength of a community when unity and purpose coincide, immediately bringing to mind current issues in the social and political domain.

The transcript is littered with verbose passages (thank goodness for Plain English), and occasional inappropriate comments from Counsel (“I would further remind you, gentlemen, that this charge of high treason has already been rejected by two juries, and I trust that, although you have been passed under the benign smile of the Crown Solicitor, you will not be harsher than others”). Justice Barry surprises counsel with part of his summing up (“My opinion is not to convict the prisoner”), and then before the reenactment ends, Timothy Hayes interrupts proceedings to speak directly to the judge.

Hayes’s interjection is both shocking and humbling at the same time. As the accused begins to talk, you can almost feel the lawyers in the audience begin to cringe. Anxious, desperate and indifferent to the potential consequences of acting out of turn, Hayes requests that his Honour allow the recall of a witness on a particular point. However, formalities and court etiquette aside, Hayes’s last-minute plea is not so surprising. Litigants, even those with representation, often feel voiceless or misunderstood during court proceedings. Whilst such feelings can manifest in the form of a ‘difficult’ client, it is a harrowing reminder that the lens through which the accused views proceedings will inevitably be markedly different to that of the lawyer. In a similar vein, Hayes’s appeal to the judge is equally shocking because one almost forgets that he is there, sitting in the dock, patiently observing. The focus of the trial resting upon the arguments and presentation of facts, it is easy to become absorbed in the ‘legality’ of it all. That is, perhaps most poignantly, the reenactment subtly comments on the humanity of the justice system, and what it means to be on trial for your life.

Jessica Terrill*

Jessica Terrill was the Assistant Director of Eureka: Democracy on Trial and is a law student at Monash University.

BottledSnail Productions has also launched a choir for the legal profession. Habeas Chorus is open to all members of Melbourne’s legal community, including practitioners, support staff and students.  An open rehearsal will be conducted on Monday, 30 March. Find out more and register your interest at: