OdditiesJustice

Arthur Blackburn (pre VC) thrown as articled clerk into odd Adelaide courtroom battle in 1914 over silent magpie

Arthur Blackburn (pre VC) thrown as articled clerk into odd Adelaide courtroom battle in 1914 over silent magpie
Future World War I hero Arthur Blackburn was thrown pre-war, as a young articled legal clerk, into the 1914 Adelaide strange courtroom battle over ownership of a magpie, who refused to say a word. Rundle Street fruiterer "John" Sym Choon (at left with his family) won the case against neighbour and major retailer and exporter of birds John Foglia.

Arthur Blackburn, a lawyer who, in World War I, became the first South Australian to receive the Victoria Cross, was thrown, just before the war, into a novel courtroom battle.

On January 27, 1913, John Foglia and one of his sons went searching for a magpie that had escaped from Foglia’s Rundle Street, Adelaide city, store five days earlier. They heard a distinctive call from the premises of a Rundle Street neighbour: fruiterer “John” Sym Choon. Later, the two Foglias visited Sym Choon and demanded the return of the magpie. Sym Choon refused, saying it was his. In an argument, Sym Choon allegedly threatened to punch John Foglia on the nose.

Foglia took legal action to get back the magpie. Foglia’s shop was a principal business for selling and exporting Australian native birds to influential international collectors such as Baron Rothschild. In Adelaide, the influential clients included a senior legal fraternity member, C. B. Hardy, of solicitors Fenn and Hardy. With a one-acre garden on Payneham Road, Hardy also ran a mini zoo of exotic animals and had open account at Foglia’s shop for birds to add to his aviary.

Fenn and Hardy specialised in trusts and estates and he emphasised keeping people out of court. Determined to get his magpie,Foglia persuaded Hardy to go to court but he assigned the case to his articled clerk: Arthur Blackburn. Blackburn had only graduated in law from Adelaide University in 1913. Hardy saw the slightly-built Blackburn’s fighting qualities when he intervened and chased away two men who’d assaulted Hardy on the street.

Armed only with his client’s Foglia’s unwavering claim to owning the magpie, the 20-year-old Blackburn arrived at Adelaide Local Court to face adversaries very comfortable on that terrain. Sym Choon had arrived from Guangdong province in about 1890 and started hawking fruit and vegetables from a barrow. In 1908, the family moved to live and trade at Rundle Street East premises. Well-known among Adelaide’s small Chinese community, and a respected trader and family man, Sym Choom was familiar with the courts: in civil actions against his landlord and in criminal cases arising from yobbish attacks on his cart and premises.

In the magpie case, Sym Choon had an experienced advocate in Richard Hedley Lathlean, a partner Holland and Lathlean, and known in the courts for his “zeal to win” and that “no barrister has pleaded the cause of his clients more determinedly or earnestly”. The hearing was before remarkable public servant James George Russell: commissioner of taxes, stamps, insolvency and a stipendiary magistrate; also previously a master of the supreme court and registrar of companies.

Russell’s “sombre and consciously gentlemanly demeanour in court” was invaluable in Foglia v Sym Choon. A clearly-emotional Foglia expressed his attachment to the magpie as a pet that wasn't for sale. He’d taught it to say “Wakool”, the name of a one of his trading trips. No other magpie could say that and he said he’d heard it from Sym Choon’s premises on January 27. Lathlean successfully intervened to restrict Foglia’s testimony to the legally permissible.

Sym Choon told the court that this was the first pet magpie he’d owned. His wife, who spoke only Chinese, had taught it to say the Chinese word for mother. Sym Choom produced a receipt for buying the magpie, with a cage, at the market in 1912, for five shillings. Sym Choon's wife, through an interpreter, supported her husband’s account. When the magpie was produced in court, she tried, unsuccessfully, to persuade it to speak.

Russell suggested Foglia should encourage the bird to say “Wakool” in court. A frustrated Foglia declined, saying that only happened in the early morning. The bird maintained “a golden silence”.

Russell deliberated in favour of Sym Choon. Beating a retreat to the office, young Blackburn may have felt, like Hardy, that a day in court was much overrated.

*Information from Michelle Slatter, “Silence in Court: The case of the coveted magpie”. The Bulletin, Law Society of South Australia.

Other related ADELAIDE AZ articles

South Australian Richard Blackburn, who became a judge on the Northen Territory and Australian Captital Territory (chief justice) supreme courts and the Australian federal court, is pictured during a 1984 graduation ceremony at the Australian National University in Canberra where he was appointed chancellor in 1984.
National >
Richard Blackburn, from South Australian army/ academic life, key judge on territories' supreme courts and federal court
READ MORE+
Australian federal court judge Edward Morgan returned in retirement to indulging his enthusiasm for the applied arts. At right: The linocut on paper, Guide lecture (1953) by Eric Thake, donated by Morgan to the Art Gallery of South Australia that named a gallery after him.
Galleries >
Edward Morgan, judge in federal courts, gives his 'guiding taste' for Art Gallery of South Australia collections
READ MORE+
The environment, resources and development court sits in the Sir Samuel Way Building in Victoria Square, Adelaide.
Justice >
Environment court rules on land use, mining, heritage, water and natural resources in South Australia
READ MORE+
Arthur Hardy (left) was appointed crown prosecutor by South Australia's second governor George Gawler in 1839. Image courtesy State Library of South Australia
Settlement >
Arthur Hardy, South Australia's first crown prosecutor, remains 'grand old man' of law profession into his 90s
READ MORE+
John Doyle did his bachelor of civil laws at Oxford’s Magdalen College. Image courtesy Law Society of South Australia.
National >
Hopes dashed for John Doyle, chief justice 1995-2012, to be first South Australian on Australia's high court
READ MORE+
Becker House, honouring the support by South Australian Jack Becker, was the former name of the Australian Academy of Science dome in Canberra.
Oddities >
South Australian Jack Becker's name erased from Canberra dome despite biggest gift to academy of science
READ MORE+