Justice Denied 9781489211071, 1489211071

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JUSTICE DENIED BILL HOSKING QC WITH JOHN SUTER LINTON

Foreword by His Honour Judge Stephen Norrish QC

www.harlequinbooks.com.au

ABOUT THE AUTHORS

Born in Broken Hill, William ‘Bill’ Hosking became a clerk in the Petty Sessions branch of the Department of the Attorney-General and of Justice in 1954, serving in courthouses all over New South Wales. In June 1961, at the age of twenty-three, Bill embarked on a different career path when Jack Mannix, the Labor member for Liverpool and Minister of Justice, appointed him as his acting private secretary. In 1965, the new Minister of Justice, John Maddison, retained Bill on his personal staff. Soon, he became assistant private secretary to Sir Robert Askin, the Premier of New South Wales. Within months, Wal Fife, Assistant Minister for Education and soon-to-be Minister of Mines, selected Bill as his private secretary. In 1970, Bill commenced practice at the private bar in Chalfont Chambers, which Jack Mannix had once occupied. Mr Mannix had loaned Bill his wig and gown to wear when he was called to the Bar in 1968, and gave them to him when he joined Chalfont Chambers. In 1973, he became a public defender and in 1980 he was appointed Queen’s Counsel and Deputy Senior Public Defender. As a leading QC appearing in a large number of notable trials, and as a District Court judge from 1987 to 2000, Bill has garnered some fascinating stories which bring to life the drama of the courtroom and lively exchanges of the participants. In 2014 Bill was appointed as a reserve judge of the County Court of Victoria, continuing his love of the law and justice. John Suter Linton has worked extensively in radio, television and print media, and as a writer, journalist, researcher and producer. He wrote for the TV shows Sons and Daughters and Neighbours and developed the pilot for Australia’s Most Wanted. John has also written five true-crime books, including Murder at Anna Bay, An Almost Perfect Murder and Blood Ties. John’s interest in crime came from his father, a printer on the Sydney Morning Herald in the sixties and seventies, who would recount details of gruesome crimes of the times to friends not knowing his young son was listening.

To the late Judith Pamela Armitage, my dear wife for fifty years.

FOREWORD

There are very few people in the New South Wales legal community who have better experience and insight into the criminal justice system and the ability to comment on examples of where justice has been denied than William ‘Bill’ Delbridge Hosking QC. From his early professional life working within the court system and his role as a ministerial advisor to becoming a barrister and then a judge in the busiest sentencing and trial court in the Commonwealth of Australia, Bill has acquired unique opportunities to participate in, contribute to and observe the criminal justice system over decades of enormous change and thus to understand, and in some cases correct, the wrongs and excesses that any imperfect system can produce. During the inquiry into convictions of the Ananda Marga Three, as senior counsel representing one of the young men wrongly convicted of serious crimes for which they each spent almost seven years in gaol, Bill observed in submissions that ‘the well of justice had been poisoned at its source’. Hyperbole was not unknown to him in his advocacy, but as it turned out, there was no hyperbole in that observation. Bill was first and foremost a master jury advocate and tactician, a rare skill among all lawyers. But he was not one to grandstand and was certainly not one for self-promotion. He worked assiduously to protect the interests of his individual clients, with the strength and courage to speak up when it was required and the keen and innate instinct to identify the prospect of a miscarriage of justice and, in many cases, to identify the means to avoid the consequences of that. However, despite the best efforts of lawyers, miscarriages of justice still occur. When Bill commenced practice at the Bar, common practices of the period in police investigations were ‘the verbal’—the unsigned record of interview; flawed processes of out-of-court identification; reliance upon unreliable and later discredited science and scientific investigation; and the use of prison informers. These practices were well known not just to police and prosecutors, but also to judicial officers, many of whom did little or nothing to prevent miscarriages of justice occurring. The battle for the integrity of the justice system was largely fought by skilled and courageous lawyers such as Bill Hosking, representing accused persons and fighting the systemic unfairness on a case-by-case basis. It was not until the mid-1990s when Justice Wood conducted his Royal Commission into the New South Wales Police Service that the conduct of corrupt and dishonest police officers was exposed. The direct and indirect consequences of that royal commission were revolutionary. The commission did not just lead to the reform of legislation to almost eliminate the practices in investigation that had led to many injustices in the past, but also to the public and official recognition of those practices by a legal system that previously had been either illequipped or uninterested in addressing. This could not be said of the judges of the High Court of Australia who, since the 1977 decision in Driscoll v The Queen—about which Bill writes—provided leadership and direction over the next two decades in relation to matters such as the admission of confessional evidence, appropriate judicial identification warning and the proper approach to the admission of forensic evidence, where legislatures were too timid to act. Yet these decisions of the High Court were only desultorily followed by many trial courts and intermediate special courts. It took eight years after the decision in Driscoll for the unsigned record of interview to be cut down by the unanimous decision of the High Court in Stephens v The Queen, another decision emanating from New South Wales. The protections now available under the Commonwealth and state laws have their origins not only in the leadership of the High Court, the impact of the Wood Royal Commission and to some extent the findings of the earlier Fitzgerald Inquiry in Queensland, but also in the work of the people who can be properly regarded as ‘knights of justice’ practising law across Australia, lawyers such as Bill Hosking and the other trial advocates throughout Australia who exposed to juries on a case-by-case basis the many deficiencies of the legal system: a system where rules for the protection of the person bearing the presumption of innocence were either not clearly defined or were unilaterally made by participants in the system who had a primary interest in securing convictions. Before he undertook his revolutionary royal commission, Justice Wood had presided over the Ananda Marga inquiry. If the conduct of the investigators and others in the investigation of those men had ‘poisoned the well of justice’ at its source, the work of Bill Hosking and other lawyers in that inquiry must have contributed to the open-minded approach that Justice Wood took to his work in the royal commission a decade later. The task Bill has undertaken in his examination of past injustices is one that has a contemporary resonance because, while on many occasions people in the community will complain about the inadequacy of sentences and the inappropriateness of acquittals, the capacity of the justice system to cause injustice to the person who wears the presumption of innocence is far greater. The measure of any justice system is its capacity to provide justice to the worst of the worst, not just to the most worthy. In this book, Bill also exposes where this test of our justice system has not been passed and explains why that was so. This book demonstrates the need for everybody who participates in the justice system and the community to exercise the enduring vigilance needed to prevent mistakes of the past occurring in the future, even for those accused of involvement in unspeakable crimes that seize the public imagination and cause revulsion in reasonable minds. His Honour Judge Stephen Norrish QC

CONTENTS

About the Authors Introduction 1. Jimmy Driscoll—The Death of the Police Verbal 2. The Trial of Lady Chatterley’s Lover 3. Mrs Dawson Makes the News 4. Hoodwinked—The Blind Prison Escapee 5. Who Shot Harold Price? 6. Michelle Lawford—The Tragic Mum 7. Maddison v Goldrick—The Case that Changed the Law 8. Peter Schneidas—A Wasted Life 9. Mad or Bad? 10. Mallard and Veen—The Sleep of Reason 11. Tim Anderson—Conspiracies and Bombings 12. Angelo Maric—Guilt by Hearsay 13. Anita Cobby—An Unfailing Test of Civilisation 14. A Cautionary Tale … 15. Never a Dull Moment … Acknowledgements Index

INTRODUCTION

Public defenders are briefed in the most serious criminal cases, particularly when clients can no longer afford to retain the Bar’s elite. My clientele was wide and varied. The notorious, the oppressed, the young and the old. The wise and the foolish. My clients included solicitors, police, schoolteachers, doctors and nurses, underworld heavies and prostitutes. These memoirs recall some of the many notable cases in which I appeared as a barrister. They provide a rare insight into the emotion and complexity of a defence barrister’s role. I have appeared in cases at all levels, the Local Court, District Court, Supreme Court, Court of Criminal Appeal, and six times before the High Court of Australia as leading counsel—only once successfully—and once for the Crown as junior counsel to the Solicitor-General, Harold Snelling QC. These are narratives of my clients’ misfortunes. It is rare and more interesting to read a barrister’s frank admission of his own mistakes and errors of judgement, rather than accounts only of courtroom triumphs. There are both in this book. The emphasis is categorically, and unsubtly, from the defence viewpoint. Human frailty and its dark side underline the criminal trial process. These are not impartial narratives, but my memoirs. There are none drawn from my years as a judge. Enough has been written about that period by the Court of Appeal and the Court of Criminal Appeal. Justice is an elusive end, and not always achieved. Hence the title Justice Denied.

* * * Whenever I drive past a gaol I feel a sense of sadness and fear. Going inside the forbidding walls and hearing the inevitable clanging of gates is worse. The Victorian-era East Maitland Gaol, Parramatta Gaol, Goulburn Gaol and the sprawling Long Bay complex are the worst. Thankfully, the first two are now closed. Imagine entering the prison, handcuffed, from the back of a stuffy, windowless prison van. Being stripped naked, washing in the communal shower, and then being handed the drab prison green garb. Each stage of the ‘welcoming’ is designed to destroy your self-respect. This is the start of days, months and years of personal danger and torment. This is the fate of some of the worst villains who falsely claim membership of the human race. As this book tells, it is also, sadly, the fate of too many innocent people. How many is too many? One is too many. From time to time, innocent people are convicted. That is the flaw in our system of justice. There can be no greater injustice than a person being convicted of a crime they did not commit. Justice is not infallible and sometimes it is denied. When it is denied, we are all somehow diminished. Traditionally, the mythical goddess Justice is depicted blindfolded, which is said to portray even-handedness and impartiality. The great English advocate Sir Edward Marshall Hall KC told juries the blindfold was to shield her look of infinite pity from public gaze. When an innocent person is sent to gaol, justice truly is denied, and there have been far too many instances of that in Australia. On 29 October 1982, a pregnant Mrs Alice Lynne Chamberlain received the mandatory life sentence for the murder of her baby, Azaria, and was sent to gaol. Her appeal to the Federal Court of Australia was dismissed. By majority, her appeal to the High Court of Australia was also dismissed. Years later, she was exonerated by a royal commission and paid some money and released. Scientific evidence had proved she was innocent. No crime had been committed by anyone. The system had well and truly failed her. Mrs Chamberlain is not a lone figure. On 27 May 2008, in an Australian first, the Victorian government pardoned Mr Colin Campbell Ross. Scientific evidence proved he also was innocent of murder. It was too late to pay any money to Mr Ross. In a brief but solemn ceremony, he had been hanged by the neck until dead at Melbourne Gaol in 1922. He was thirty years of age when his life was ended. The system had well and truly failed him. For a murder committed in 1936, in central western New South Wales, a trial was held at Bathurst eleven years later. The death sentence was passed upon Mr Frederick Lincoln McDermott. The Court of Criminal Appeal dismissed his appeal and so did the High Court of Australia. Fortunately, the death sentence was not carried out. In 1952, after a royal commission, Mr McDermott was cleared. He was given the princely sum, in today’s money, of $1000 as compensation after serving more than five years in prison. He died a broken man in 1977. In 2013, DNA evidence confirmed Mr McDermott’s innocence. The Court of Criminal Appeal not only quashed the murder conviction but, even though McDermott was dead, found him not guilty. This is the only time in Australian history this has ever happened. Sadly, in Mr McDermott’s lifetime, the system had failed him. All three of these trials took place in the twentieth century. Two resulted in the death sentence. In all three cases, the jury verdicts were later proved to be wrong. The appellate courts, all the way up to and including the High Court, also got it wrong. In each case, years later, the government sought, in vain, to make amends with a pittance. Two other monumental jury miscarriages of justice involved Alexander McLeod-Lindsay in 1964 and Ziggy Pohl in 1973. Mr McLeod-Lindsay was convicted for the attempted murder of his wife, even though she tried to exculpate him at his trial. Likewise, Mr Pohl, a humble and gentle migrant, had been the victim of circumstantial evidence, and convicted of the murder of his wife. He too had served more than a decade in gaol. Unscientific scientific evidence was the forensic rock on which Mr Alexander McLeod-Lindsay perished. That happened at his trial, on appeal, and at a specially set up judicial inquiry in 1969. It was the so-called expert, but wrong, explanation of his wife’s bloodstains on his clothes that convicted him. The police, court and jury all disbelieved his wife when she claimed it wasn’t her husband who had bashed her and their four-year-old son. Mr McLeod-Lindsay was cleared, but not before he had served his entire long sentence. He never gave up. It took a second judicial inquiry in 1991 to eventually clear him. But it was not until 26 July 1994 that the Court of Criminal Appeal finally quashed the conviction. Mr McLeod-Lindsay passed away in 2009. The denial of justice to Mr Pohl, which was not finally recognised by the Court of Criminal Appeal until 17 December 1993, was almost as complete as Mr Ross’s tragic and wrongful death by hanging. At all times Mr Pohl had protested his innocence, but in vain. He received a life sentence. His case was simply closed until, years later, the actual killer came forward, confessed and was sentenced. Otherwise, the injustice would have remained unrecognised to this day.

* * *

Miscarriages of justice do not recognise national or state boundaries. On 22 August 2014, a full bench of the Australian Capital Territory Supreme Court quashed the murder conviction and life sentence of David Eastman. At that stage, Mr Eastman had served nineteen long years of his life sentence. The decision followed a top-level judicial inquiry, which found there had not been a fair trial and the conviction was a miscarriage of justice. It must be said, any blemish in the Eastman trial was not through any shortage of talent at the bar table. For the Crown was Michael Adams QC, soon after to be a Justice, and for Mr Eastman, the future leader of the New South Wales criminal bar, Winston ‘The Hat’ Terracini SC. The Crown did not hoist the white flag of surrender. Instead, it exercised its right to require Mr Eastman, after all those years, to stand trial again. Not surprisingly, Mr Eastman and a procession of lawyers provided for him by legal aid resisted this decision. A distinguished and experienced trial judge from New South Wales was objected to and eventually stood aside. Senior counsel for Mr Eastman were dismissed. One silk became seriously ill. At the time of writing this book, the prolonged, unresolved, unhappy Eastman saga continues to occupy the Supreme Court of the nation’s capital. Justice again denied and heavily delayed. Mr Eastman was not a once-in-a-generation aberration. On 22 December 2014, the South Australian Court of Criminal Appeal quashed the murder conviction and life sentence of Henry Keogh, who had served, like Mr Eastman, a shade less than twenty years in gaol. The Crown elected to put Mr Keogh on trial for a third time. Bravely, Mr Keogh elected to set aside a jury trial and be tried by a judge. The Crown rejected this challenge and discontinued the prosecution in November 2015. Keogh’s defence was an unusual but not an unprecedented one. He argued there had never even been a murder, as the deceased had died of natural causes. Roseanne Beckett, formerly Catt, was convicted by a jury in the Supreme Court in 1991 for attempting to kill her husband. She was sentenced to twelve years gaol with a non-parole period of ten years and three months. Her appeal was dismissed. Ten years after going to gaol, she was released on bail when evidence came to light that she had been framed. It was a hollow victory. Her non-parole period was weeks away from expiry and, thus, she was due for release anyway. A new trial was ordered, but this time the DPP hoisted the white flag. Roseanne Beckett sued the government for malicious prosecution. She won. In 2015, the Supreme Court awarded her $2.3 million plus costs, which will exceed $1 million. Over $3 million for all those wrongful years in gaol. Adequate compensation? No. Ten times that amount and more would not be enough for what she suffered. As Justice Harrison so succinctly and eloquently put it, there is no way of knowing what Ms Beckett’s life would have been had she not been charged. That applies to all those unfortunates to whom justice has been denied, with Colin Campbell Ross the ultimate, tragic victim. It was the famous jurist Sir William Blackstone who wrote in the eighteenth century: ‘It is better that ten guilty escape than one innocent suffer.’ It must be remembered that this presumption in favour of the innocent is never absolute.

CHAPTER

1 Jimmy Driscoll—The Death of the Police Verbal

In the early 1970s a gang known as the Toecutters became active in the Sydney underworld, torturing fellow criminals for information as to the whereabouts of stolen loot. The method was simple and effective: amputate fingers and then toes to force disclosure of the treasure’s hiding place; when the information is revealed, stop amputating. The loss of blood usually resulted in death. The bodies, it is believed, were then weighted and taken out past Sydney Heads and fed to the sharks, never to be seen again. A few, however, did wash up along Sydney’s shoreline and panic set in. A lot of gangsters on both sides decided it was better to hide than risk becoming a victim. One alleged member of the Toecutters was John Patrick ‘Jake’ Maloney. He was forty-four years old, and was holed up in a safe house in Revesby, a southwestern suburb of Sydney on 24 November 1972. Shortly before midnight, Jake Maloney was alone in the house, his lover having just left. While the house was securely locked, a window was partially open. He went to the bathroom before going to bed and was shot dead. Death was instantaneous from two bullet wounds to the back of his head. The murder weapon was a .22 machine gun pistol. There was no sign of a struggle and the murder had all the hallmarks of the work of a professional hitman. Two of New South Wales’ top detectives, Detective Sergeant Noel Charles Morey and Detective Roger Caleb Rogerson, were assigned to investigate the Jake Maloney murder and related crimes. The Morey–Rogerson pairing was not by chance. They had worked together for over six years. In the seventies, that duo bestrode the Sydney law enforcement world like a colossus. Modesty and diffidence were not hallmarks of their style, but efficiency and success were. Roger Rogerson had not yet reached forty, but he was so admired there was talk of him as a possible future commissioner of police. In his heyday, Rogerson was the perfect, unshakeable witness. The judges liked him and his style and it showed. His image was that of a dependable pillar of truth, duty and authority. Accordingly, he was able to stretch the rules to the limit. Not yet fifty, Morey was destined to rise to the very top as chief superintendent in charge of the CIB. Initially, suspicion for Maloney’s death fell on two men: Linus Patrick Driscoll, known as Jimmy the Pom, or just Jimmy to his friends, and Richard Kaczmarek. There was no suggestion the two men were acting together. In fact, they were enemies. But both, police believed, had their reasons to want to see Jake Maloney dead. On the morning of 19 October 1972, Jimmy Driscoll had found a bomb made with ten sticks of gelignite fitted with a remote-controlled detonator hidden under the back seat of his car at his Oatley residence in the southwest of Sydney, just over ten kilometres from Revesby as the crow flies. Driscoll immediately called the police, and Sergeant Ross Nixon from the New South Wales Police ballistic unit and an army disposal expert, Major Morrison, attended the scene. Detective Sergeant Brazel and Detective Senior Constable McMillan from the consorting squad also responded. Brazel and McMillan alleged Driscoll told them, ‘I’ll handle it in my own way,’ and made mention of the Maloney brothers, Jake and Billy. He had a motive to kill them, no doubt. A month earlier Richard Kaczmarek’s Paddington residence, in Sydney’s east, had been peppered with a fusillade of shotgun blasts, blowing out windows. Again, police believed Kaczmarek blamed Maloney for the attempt on his and his family’s lives. After Maloney’s murder, Morey and Rogerson pulled Kaczmarek and his brother Kazimierz—‘Kaz’—in for questioning. After some initial unwillingness, they sided with police and claimed that about a week before Maloney’s death, Driscoll had said he intended to shoot Maloney. He may have been a polite and well-mannered expat Englishman, but Driscoll had a scary side. And there was more, albeit circumstantial, evidence against him. Driscoll owned two machine pistols that fired bursts of .22 bullets and he had a reputation for brandishing the modified pistols at people he didn’t like. He called his little pistol machine guns the Silent Ones because each was fitted with a silencer and could send out a lethal spray of bullets without making much noise. His associates later claimed they had seen Driscoll test fire the Silent Ones in the backyard; while neighbours hosed their gardens, ‘Jimmy hosed his plants with lead’. No need for weed killer. Less than a month after the murder, by sheer chance, an abalone diver found the murder weapon and the silencer. The machine pistol was wedged in a rock crevice under the sea off Sydney’s iconic Bondi Beach. Bondi, it just happened, was where Driscoll had been working as an assistant manager at the Astra Hotel around the time of Maloney’s murder. If Driscoll did kill Maloney, the only question was why? Driscoll and Maloney were friends. What would have caused them to fall out and for Driscoll to believe Maloney had planted a bomb in his car? And then execute Maloney a month later? Friendships in the underworld are tenuous at the best of times and can change in a minute over the slightest disagreement. Police learned Driscoll’s soon-to-be sister-in-law, Gaye Dauroff, was having an affair with Maloney. Other than the killer(s), Gaye was the last person to see Maloney alive. Had the affair been known to Driscoll, police ascertained, it would not have endeared Maloney to him and, therefore, given Driscoll yet another motive. In reality, Driscoll couldn’t have cared less about the affair. After Maloney’s death, Driscoll immediately went into hiding. This, Morey and Rogerson believed, was an admission of guilt. To them, innocent men don’t hide from the police. The police certainly didn’t entertain the idea Driscoll may have fled out of fear. The bombing attempt on his car had proved not only he but also his family were in danger. And if he hadn’t killed his friend, was Driscoll fearing he’d be next, or that an attempt would be made to frame him for the murder? Another reason to run. Against that, if Maloney’s death was Driscoll’s version of vengeance upon the would-be bomber, then the source of danger had been extinguished by Maloney’s death, and there would not have been any need for him to run away. The Maloney murder was a murky underworld case with more than one suspect but the police seemed determined to get Jimmy Driscoll. Morey and Rogerson had no witnesses and the case was built around one criminal’s word against another, a possible motive or two, and a bit of suspicion, but no proof. None at all. But Morey and Rogerson were patient men; they knew their day would come and it did. Using an alias, Jimmy Driscoll lived in Melbourne for a little over eighteen months until an informer alerted police. At 6.45 pm on 5 July 1974, a cold, wintery Friday night, Driscoll was arrested by Victorian police without incident in

the heart of the Melbourne CBD. The police then notified Sydney. A search was conducted of Driscoll’s residence and certain property seized, including one .22 machine pistol. As it was bagged, Driscoll pleaded with the Victorian police officer, Detective Senior Sergeant Lalor, to take particular care and note of the gun, and Lalor did. Driscoll didn’t trust NSW Police not to interfere with it and try to link it to Maloney’s murder. At this time, perhaps, Driscoll was unaware of the discovery of a .22 machine pistol at Bondi, which police had established was the murder weapon. Driscoll was taken to the Russell Street police headquarters. When notified of Driscoll’s arrest, Detective Sergeant Morey dropped everything and prepared to fly to Melbourne. He had been waiting a long time to interview Driscoll and, presumably, held a faint hope he would make some admissions and they could extradite him to New South Wales. On that same night, solicitor Colin Heazlewood was halfway through dinner when he received an urgent phone call. It was from his senior partner, David Baker, with the news that Jimmy Driscoll had been arrested and telling him to ‘get to the airport and get to Melbourne fast’. The firm Baker and Heazlewood was a two-man practice operating from a shopfront in Liverpool Street opposite Central Court. Baker, when he rang Heazlewood, was too far away at his Kurrajong property at the foot of the Blue Mountains. David Baker was a rotund character. His love of prime beef steaks and vintage red wine, not necessarily in that order, was legendary. His burliness masked a shrewd criminal law brain and a fierce dedication to his clients’ interests. Money was never Baker’s motivation—he was an idealist. Justice for Jim Driscoll remained his crusade long after the money ran out. Heazlewood was the opposite of Baker in personality. He was an urbane, rugby-playing young man who was a foil to the ebullient Baker. He was later called to the Bar and built a highly successful common law practice. On arrival at the Ansett Airlines domestic terminal, Heazlewood recognised the famous Detective Sergeant Morey immediately. The reverse was almost certainly not the case. With the ink barely dry on his practising certificate, Heazlewood solved that problem by plucking up the courage to introduce himself. Morey was with Detective John O’Hagan. Detective Roger Rogerson had not been able to make it. Had he been there, Rogerson, a renowned tactician, may have counselled caution to his boss. As it was, Morey’s vanity probably prevented him from acknowledging Heazlewood’s unwelcome arrival on the scene as important. ‘I suppose you are going to Melbourne to speak to Driscoll?’ Heazlewood nervously asked. Morey replied, ‘I am going to Melbourne to make inquiries about him.’ ‘He was arrested today.’ Sergeant Morey acted surprised. ‘Was he? I didn’t know that.’ That was untrue. Morey did know. Sergeant Morey’s professed ignorance of Driscoll’s arrest was a downright lie designed to mislead Heazlewood. Colin Heazlewood was very much the new kid on the block. His experience, if any, of this tense sort of situation would have been a tiny fraction of Mr Morey’s, who obviously underestimated Heazlewood’s resolve. Detective Sergeant Morey was a strong character, the embodiment of power and authority. No one in his presence dared doubt it. He was not one to be trifled with. Heazlewood, however, was obliged to put duty before self-interest and summoned the courage not to confront Mr Morey but to challenge him. ‘If he is to be interviewed I would like to be present.’ ‘No way,’ Sergeant Morey quickly responded. Heazlewood refused to back down. ‘I am asking you formally if I can be present when he is interviewed?’ ‘No.’ Morey was adamant. ‘I suppose I will see you at Russell Street, but hopefully not tonight … in the morning?’ ‘No, not tonight,’ Morey agreed. There was no ambiguity in that reply. Anyone would have accepted Morey meant he would hold off conducting any interview until a reasonable time the next day and, if Driscoll so wanted, Heazlewood would be invited to sit in. It is the client’s right, not the solicitor’s, to request legal representation at a police interview. Before boarding the plane, Morey decided to dictate his version of the brief exchange with Heazlewood for O’Hagan to record in his notebook. At the time, the police notebook was considered sacrosanct in giving accurate accounts of events. Police were taught to write down all conversations with the date and time and, if possible, to have all parties sign the book before ruling it off. The credibility of the information in the notebook comes from the recording of events prior and after, showing them in true chronological order. Recording a conversation at the time it is happening, or very soon after, gives credibility to the accuracy of that recording. If the account is false then the credibility is obtained by deception. Perhaps the usually astute Morey had realised the importance of that meeting at the time. Heazlewood’s swift arrival at the airport had seriously compromised Morey’s plans and was a major setback to the police cause. A year’s work was in jeopardy. Morey knew permitting Heazlewood to be present at any interview would allow Driscoll to be reminded of his right to remain silent, not that Driscoll wouldn’t have known it for himself. Time was the enemy and that was what forced Morey’s hand. Morey did, at least, keep his word he wouldn’t interview Driscoll ‘tonight’—Friday, 5 July.

* * * The new day, 6 July 1974, was all of ten minutes old when Morey and O’Hagan began their typed record of interview with Driscoll. The next few hours would prove decisive. Morey had consciously excluded Heazlewood from the process and concealed the solicitor’s presence and availability in Melbourne from Driscoll. Denying the young solicitor any access to his client was a grave step. Not only was it an unfair one, it was also against the law. The five-page script would take about two hours to produce. According to Driscoll, who was in the room, Morey dictated it to O’Hagan from start to finish, Morey composing both the questions and the answers, which were attributed to Driscoll. The end result was a quite tentative narrative without a direct admission of guilt. What Morey had created was like an amateur stage play with Detective Sergeant Morey as the protagonist and Driscoll a reluctant costar. It starts with Driscoll refusing any legal representation and, instead, putting his trust in Morey. It ends with Driscoll thanking Morey for his fairness. A neutral onlooker would have given longer odds of Driscoll putting his life in the hands of Morey over his solicitor than of the Yarra River freezing over, even though it was winter. The claim that police will be untruthful and break the law to secure the conviction of guilty criminals is not a heresy promoted by civil libertarian extremists. Bending the rules was widely recognised at the time and sought to be justified on the basis it prevented serious offenders escaping punishment for serious crimes. The justification is always that the police know the criminal is guilty but lack enough real evidence to put him away. That artifice does not attract community condemnation—far from it. It is recognised by many citizens as ‘old-fashioned policing’ which protects the community from evil. But countenancing the gaoling of someone who the police genuinely believe to be guilty by

illegal means is simply not on in a civilised society. If it were, we would have trial by jury substituted with trial by police. Driscoll feared becoming another victim of precisely that philosophy. Justice had been denied at Sydney Airport that night from the moment Mr Morey denied knowledge of Driscoll’s arrest. It was a lie and it proved two things: a determination to get Driscoll at any cost and a preparedness to lie to do it. Driscoll, however, kept his nerve. There was one vital part of Morey’s game which Driscoll still controlled and refused to play: he would not sign the fabricated confession. Driscoll was adamant—he had made no contribution to that document. After dawn on the morning of 6 July, both Roger Rogerson and David Baker arrived in Melbourne. Driscoll’s lawyers were well and truly on the job, but they didn’t know anything about the record of interview. They didn’t know of its existence because Driscoll had not been given a copy. Nor was it disclosed to the Victorian magistrate during the extradition hearing. Back in Sydney, with both Baker and Heazlewood available, the police claimed Driscoll elected to go it alone and make another damaging record of interview. Again, Driscoll was not given a copy. And again, he concluded by thanking Mr Morey for his fairness. A less grateful prisoner might have described it more as arrogance than fairness. There must be something about the witching hour. Jake Maloney’s murder occurred around midnight. The five-page Melbourne interview was created just after midnight. The Sydney interview allegedly commenced at 11.30 pm. In the Sydney record of interview, Roger Rogerson resumed his role of typist for Detective Sergeant Morey. Driscoll’s style of expression was completely different in the brief second interview: he was portrayed as far more remorseful and resigned to his fate. And this time the record was a full confession with an acknowledgement by Driscoll that the evidence was ‘strong’ against him. Morey says: ‘I said “I want you clearly to understand that what I have shown you and what you are saying is being fully recorded on the typewriter, and it will be produced in evidence. I want you to understand this, that you do not have to say anything, as anything you do say will be given in evidence.” ‘[Driscoll] said, “Yes, Mr Morey, but I expect to get the full sentence for killing Jake. I didn’t expect that you would believe everything I said because Jake was a dreadful man who turned against his brother. As a result of that he became opposed to me. The evidence I know is most strong, particularly in regard to what you told me about the Kaczmareks, but I can only say this, that I do not expect them to stand up and relate their evidence when I am present in court, because they know that if they do they are finished for all time.”’ Concluding the Sydney interview, Morey gave this evidence: ‘I said, “Having shown you these exhibits have you anything to say.” He said, “Not really, Mr Morey, thank you very much for your fairness. I would like you to give me the opportunity to thank you for your fairness at court today.”’ Apparently Mr Morey forgot to take him up on the offer when Driscoll appeared at a preliminary hearing. Driscoll thanking Morey certainly never happened. If it had, a public expression of gratitude in open court would have surely put to rest forever the fabrication allegation and been a prelude to a plea of guilty. The Melbourne document was very incriminating but subtly so—there was no direct admission of guilt. Was the late arrival on the scene next day of Roger Rogerson the event that prompted the second Sydney record of interview to make certain a confession? Did the Sydney interview bear the professional imprint of Roger Rogerson with his legendary eye for detail? We will never know. The commonsense approach, or ‘pub test’, to identify a disputed verbal is simple: Does the unsigned confession contain any information not already known to the police and/or which could be fabricated with ease if they were so inclined? Perhaps the answer was given when, yet again, no copy of the Sydney record of interview was given to Driscoll. That was in defiance of the instructions of the commissioner of police. It was also deliberate and arrogant. No one is above the law, but obviously Morey thought he was. He denied Driscoll his right to see his solicitor. He denied Driscoll his right to copies of the interviews. The high rank held by Mr Morey granted him no exemption from obedience to the commissioner’s instructions in that respect. Did he bend the rules in pursuance of a crusade to keep the streets ‘safe’ for ‘decent folk’? If so, that was misguided and unlawful. Police have no monopoly on virtue. In the Morey–Rogerson era both a commissioner of police in Queensland and a deputy commissioner of police in New South Wales were gaoled for dishonesty. So were a judge and a chief magistrate. Human frailty is not the exclusive preserve of the baddies. Unknown to Driscoll, a carbon copy of the Sydney interview was put in his personal property but he did not actually receive it ‘for a long time afterwards’—three months to be exact. Having been refused bail, his property was stored at the gaol with him having no access to it. Again, was this the handiwork of Rogerson? If pressed, Rogerson could claim he had given Driscoll a copy of the record, and it was Driscoll’s fault for placing it in his belongings, which were then confiscated. So much for the commissioner’s instructions. Those instructions were precisely that, instructions: unambiguous and binding. A person interviewed must immediately be provided with a copy of the interview. Driscoll remained adamant he ‘did not answer any questions’ and Detective Morey ‘manufactured every answer’.

* * * At Driscoll’s trial in February 1975, the two unsigned records of interview were the key to the Crown case. Appearing for Driscoll, Mr Tony Bellanto QC objected to the interviews’ admission into evidence. The court then heard, in the absence of the jury, Mr Heazlewood give his recollection of events at Sydney Airport on the night of Driscoll’s arrest and his conversation with Detective Sergeant Morey. Morey rejected Heazlewood’s version, and was backed up by O’Hagan’s notebook entry for that night. Morey denied telling Heazlewood he ‘didn’t know’ Driscoll had been arrested and denied ever blatantly refusing the young solicitor access to his client. He said he told Heazlewood he would inform Driscoll, as is Driscoll’s right, of Heazlewood’s availability and let Driscoll make the decision. Morey also added that he offered Heazlewood a lift into the city when they arrived in Melbourne, but the offer was politely declined. The trial judge, Mr Justice RL Taylor, did not accept Mr Heazlewood’s evidence. He preferred the versions of the police who, not surprisingly, supported each other. Justice Taylor ruled Heazlewood’s evidence as inadmissible, thus the jury never saw or heard it. That was a devastating blow to the defence. By excluding Heazlewood’s evidence, Justice Taylor effectively deprived Driscoll of any real chance of an acquittal. Driscoll’s account of having been verballed was directly contradicted by the police, but without the evidence of Heazlewood, it was Driscoll’s word against three distinguished NSW Police detectives. Each of the two unsigned records of interview were then admitted into evidence as a document. It was read aloud in open court to the jury by the judge’s associate and, as it was an exhibit, was provided to the jury when they retired

to consider their verdict. The transcript of the trial evidence revealing Driscoll’s denial was never given to the jury. The verdict of guilty was reached in just one hour, an amazingly brief retirement for a jury in a murder trial. The mandatory sentence of life imprisonment was imposed by Justice Taylor immediately. The whole procedure was over in less than a minute. Gaol, possibly until he died, was Driscoll’s gloomy reality. There was no formula, as there is today, where subjective and objective factors are weighed, although a gangland figure convicted of a hit would not have many mitigating features available. In the 1970s release could be fifteen, twenty, twenty-five years away or never. Still, being a bad sport, Driscoll didn’t accept the umpire’s verdict and he appealed to the Court of Criminal Appeal. Three judges to zero, the court threw out the appeal. They all agree with the trial judge that Heazlewood’s evidence was inadmissible. It must be said the police verbal flourished at this time because of judicial inaction and, sad to say, sometimes active judicial encouragement. There was one last, however faint, chance for Driscoll: appeal to the High Court of Australia, a court comprised of only seven judges for the whole nation. Not much hope there; the High Court hadn’t been very interested in the blight of unsigned records of interview in the past. The High Court’s home, a palatial edifice on the shores of Lake Burley Griffin in Canberra, was three years away from opening. When Driscoll’s appeal was heard the High Court still sat at Darlinghurst in the same complex at Taylor Square where his trial had taken place. The Darlinghurst High Court room was quite small. In fact, it was the second smallest of the seven courtrooms at Taylor Square. Representing Driscoll was Mr John Foord QC, a prominent barrister of the day who was later elevated to the District Court bench. Before the High Court, Foord now faced not the Senior Crown Prosecutor, but no lesser an opponent than the Solicitor-General for New South Wales, Mr RJ Marr QC. The Solicitor-General is second only to the state’s Attorney-General, the highest law office. Marr’s junior counsel was Crown Prosecutor John Hogan, who later became the first holder of the new office of Solicitor for Public Prosecutions, the Crown law prosecuting authority. Hogan was subsequently appointed a Master of the Supreme Court. That archaic office is today more realistically called Associate Judge of the Supreme Court. The eminence of both of these counsel indicates the importance attached to the case by the Crown law authorities. The five-judge High Court bench was presided over by Sir Garfield Barwick. Also on the bench were two future Chiefs Justice, Sir Harry Gibbs and Sir Anthony Mason. They were joined by Justices Jacobs and Murphy. Sir Kenneth Jacobs had served eight distinguished years on the New South Wales Court of Appeal before his elevation to the High Court. To describe any High Court bench as strong is tautology, but it is difficult to imagine a more learned and distinguished assembly. Justice Murphy, like Sir Garfield, was a former Attorney-General for the Commonwealth. Driscoll was not present. Applicants to the High Court are never brought in from the gaol on the day. Mr John Foord QC argued the first trial had miscarried because the alleged unsigned police record of interview had been allowed into evidence and as a document. There was the further, much stronger, ground of appeal: that Driscoll’s solicitor, Mr Colin Heazlewood, had been wrongly excluded from the police interrogation at Melbourne’s Russell Street police headquarters on the night of Driscoll’s arrest. More importantly, indeed critically, Heazlewood had been prevented from revealing this to the jury. Foord also revived an important legal question relating to the admissibility as documents of unsigned records of interview. Many other lawyers had tried and failed over the years to get the High Court to reconsider cases which relied on unsigned records of interview. It seemed like a long shot, but Foord argued that including a record of interview as an exhibit when there is doubt cast over the document being genuine gives the document, in the eyes of the jury, legitimacy. In short, it prejudices the accused. The High Court considered the arguments and Foord’s determination paid off. The High Court agreed with Foord and handed down a landmark decision, reversing the usual practice of admitting unsigned records of interview as documents. Instead, the court decided, disputed interviews were allowed to be given orally and their evaluation and weight still remained a matter for the jury. It was a small but important step, which seemed to curtail somewhat the police verbal. The High Court decided Colin Heazlewood’s evidence about the meeting with the detectives at the airport should have been heard by the jury. The police had prevented Heazlewood from being present when Jimmy Driscoll was interviewed. The High Court did not make any judgement about whether or not Heazlewood was telling the truth, only that his evidence should have been heard during Driscoll’s trial. The High Court then quashed Driscoll’s original conviction and sentence and ordered a retrial be held. For the first time the tide had turned, but the struggle was far from over. Suddenly the police were on more shaky ground. The exclusion of Heazlewood from the police interview with Driscoll in Melbourne would become the focus of the new trial. The unsigned statement now had an unpleasant aroma. Whenever the famous Driscoll case is cited in court or in parliament, the official, technical reference is always ‘[1977] 137 Commonwealth Law Reports page 517’.

* * * The venue for the retrial, which began on 21 November 1977, was again the impressive main courtroom No. 5 at Darlinghurst, the Central Criminal Court, taking its name from the equivalent court in London at the Old Bailey. Its location at Taylor Square is off Oxford Street, a busy intersection on the edge of the city, walking distance to the Sydney Cricket Ground. The court complex was built for colonial New South Wales in the nineteenth century and features imposing sandstone columns on either side of the public entrance, dominated by a massive iron door. Under the court are the holding cells, where the accused wait to be called. The cells are cold, dark, damp and grim. The accused’s entry to the courtroom is intimidating. Access is by a trapdoor in the floor of the dock, which is duly opened and closed by a uniformed constable as the accused enters and leaves the court, and down narrow, dimly lit steps. The accused is always brought into the courtroom after the judge has been seated on the bench and is removed before the judge stands to retire to their chambers. This is done to avoid what is deemed to be the unseemly spectacle of the judge, in royal scarlet robes, bowing in the direction of the prisoner while returning the courtesy of those at the bar table bowing to the Royal coat of arms above the judge’s head. So, there you have it, it is not the judge we at the bar table are showing respect for when we bow, but the Royal Arms, which embodies the authority of the state the judge represents. If acquitted, the accused person leaves the dock by the gate, which is opened for them by formal order of the judge. The accused is then free to walk outside, embrace their family and pass between the tall sandstone pillars into the sunshine and to freedom. Driscoll’s defence team was the same as it was for his first trial, with one addition—me. David Baker was instructing solicitor and I was briefed as Tony Bellanto’s junior counsel. Bellanto’s passion and commitment remained

priceless assets. Driscoll had long since run out of money, but Baker and Bellanto had accepted the retrial on legal aid, with its excruciatingly modest rates. Tony Bellanto QC was the most powerful jury advocate of his day. Resonant voice rising and falling with real emotion and emphasis was his trademark. So powerful and persuasive was Bellanto, once, in his closing address on behalf of a lady charged with the murder of her husband, he implored the jury, with tears coursing down his cheeks, ‘Unlock the door of the dock and send her home to her little children waiting to receive her.’ As if mesmerised, a young constable guarding the dock commenced to do just that. The presiding judge, Justice ‘Jock’ McClemens, sternly snapped the court back to reality with the admonition, ‘Nobody move! Don’t unlock anything.’ Later that evening the jury, by its verdict, did indeed send her home. Leading the prosecution in Driscoll’s retrial was, again, Richard William ‘Bill’ Job QC, the second most senior prosecutor for all of New South Wales. He was also widely respected, because few acquittals occurred when he held the prosecution brief in a murder trial. Job was obviously destined for judicial office himself and would eventually become a judge. Presiding over the court room was Justice David Yeldham. At the time he was a newly appointed judge and thus his form was unknown. He was fair, a bit impatient, but decisive. That is not a code for saying he was pro defence. Quite the contrary: Justice Yeldham was the epitome of impartiality and, as his reputation grew, was much admired by both sides.

* * * Each morning of the second trial, as it had during the first, Driscoll’s day at court began very early at Long Bay Gaol at Malabar, southeast of Sydney, where he was held on remand during the trial. The drab prison greens were exchanged for his own clothes. Driscoll wore the same suit every day, a conservative dark one, and his family brought him a clean white shirt which he was allowed to change some days. When transported to court he was handcuffed to other prisoners in a large, windowless prison van that drove, almost in a straight line, along Anzac Parade. The twelve-kilometre journey took just under thirty minutes. The van then backed into a laneway from Darlinghurst Road, and Driscoll and others were led to the underground holding cells. The retrial was to be just that, a rerun of the evidence, but with two important differences: a new judge and the evidence of Colin Heazlewood. This time the admission of Heazlewood’s evidence wouldn’t be up to the whim of the trial judge—the High Court had said the jury must hear it. Not that they must believe it, but they must hear it and then decide whether to believe Heazlewood or not. Driscoll had a new player in his team. Not only at the bar table, but in the witness list. During the seventies and, indeed, for at least a decade after, accused persons were allowed to give what is known as a dock statement. This means they can tell their version of events to profess their innocence from the dock, without any cross-examination and without taking an oath. The unsworn dock statement was introduced into courts during the eighteenth century in England, to allow people who couldn’t afford lawyers to represent themselves in court. Of course, it pre-dated legal aid, but the right of an accused to make a statement direct to the jury from the dock was abolished in the name of law reform in 1995. Driscoll, however, did not exercise his right to make an unsworn statement to the jury from the dock. If he had done so, no one could have asked him a single question or commented on his decision not to submit to cross-examination. That option would have relieved him of being fiercely cross-examined by Bill Job QC. Instead, Driscoll unhesitatingly entered the witness box. He had given evidence at the first trial and was again an impressive witness, perhaps because he was telling the truth. Although Driscoll was questioned for several hours, he remained calm and articulate. Tony Bellanto, David Baker and—for what it was worth—I all favoured Driscoll making a statement from the dock to the jury. He was coherent and had no real accent. In his own way he could have told his story and with one big plus: the wide scope of an unsworn statement. There have been numerous acquittals following an accused delivering, in a convincing manner, their dock statement. Driscoll knew what was in store for him but, as was his right, insisted on going into the witness box again. Other than a handful of detectives, I have never met a person, myself included, who did not find giving evidence a daunting experience. I have only ever given evidence twice from the witness box and hated it. Driscoll’s preference for the witness box, which in No. 5 Court is very close to the judge and closer still to the foreman of the jury, may well have been inspired by a confidence consistent with innocence. Driscoll’s life had, to put it delicately, some embarrassing features and he had to admit to previous lies under crossexamination during the first trial. Those lies were in relation to a letter he had posted to friends in England, who then readdressed the letter and posted it to Sydney. This elaborate plan had taken place soon after Driscoll went on the run. It was done to try to convince police he had hightailed it back to old Blighty. Such an act is always highly damaging and particularly so where the witness is the accused. When it came to what was said at that airport meeting, it was very much one person’s word over another. Thankfully, due to the skill of Tony Bellanto, we were able to contrast the cross-examination of Colin Heazlewood with the cross-examination of Detective Inspector Morey, as he had recently become. The jury heard Tony Bellanto directly, and with feeling, accuse Morey of lying about what was said. Whereas, the very senior Crown Prosecutor had not done likewise with Colin Heazlewood—that he was lying was never put directly or indirectly to Heazlewood. This was no oversight by Bill Job QC. It was true blue, legal ethics. Job’s reputation was as one of the top and best of prosecutors, hard and uncompromising, but impeccably honourable. He was conducting the Crown case with vigour and outstanding ability. Heazlewood had no motive to lie. Moreover, this was not the first time Heazlewood had undergone cross-examination on that confrontation. His first grilling was at the previous trial, but in the absence of the jury, when that judge preferred the police version. Now, Heazlewood’s cross-examination was more detailed and more vigorous. Significantly, it was never suggested to Heazlewood he was mistaken either. In a bid to counter this potentially decisive setback, the Crown too added another player: Mrs Helen O’Hagan, Detective O’Hagan’s wife. She’d accompanied her husband to the airport to see him off. Unveiling Mrs O’Hagan as a witness for the first time at the retrial was also indicative of developing concern, indeed nervousness, in the prosecution. It was belated recognition of the importance of the Morey–Heazlewood conversation at the airport. With Heazlewood’s evidence at the first trial excluded there had been no need to call Mrs O’Hagan as a witness. Now, however, her assistance was vital to bolster the Morey version. For Mr Job, failure to call her and not explain her absence would have drawn justifiable criticism from the defence, inferring Mrs O’Hagan could not support her husband’s account. First and foremost, Helen O’Hagan was a policeman’s wife. She was certainly not in the camp of the accused, but became another strand in the fabric of the garment investing Heazlewood with decisive credibility. She set about doing

what some loyal wives would do. She employed the tried and not always true police technique of ‘refreshing her memory’. After all, this was many years after the event, and there would have been no reason for Mrs O’Hagan to have taken any particular notice of the conversation; it was police business. She didn’t say anything to contradict Morey’s version, in fact she admitted to using her husband’s notebook as a source to refresh her memory, but by her presence she corroborated the point a conversation had actually taken place and Heazlewood had requested to see Driscoll and to be present during the interview. Driscoll had another unexpected bonus on his side and, again, it came from the prosecution list of witnesses. When Sergeant Nixon was called he, perhaps unintentionally but certainly unapologetically, torpedoed one of the crude verbals given to Driscoll by the Consorting Squad police way back when the car bomb was found, before the Jake Maloney murder. It was Driscoll’s alleged suggestion that Maloney and his brother were responsible for the bomb, which was claimed by police to be one of his motives in murdering Jake Maloney. Ross Nixon was then a humble sergeant of police in the ballistics section. In retrospect, perhaps, he was not all that humble as he rose to the rank of assistant commissioner. According to the Consorting Squad detectives, Driscoll had rebuffed an offer of police assistance after the car bomb was found, with an ominous assurance he would handle the threat in his own way. Of course, Driscoll denied saying that and, fortunately, Sergeant Nixon directly contradicted the blatant verbal of the Consorting Squad police. He told the court his attendance was a direct result of Driscoll’s own call for police assistance. Sergeant Nixon also introduced the fact Driscoll had sought advice from the legendary Des ‘The Ibis’ Andersen, later to become a QC. For the record, at this time Andersen wasn’t yet known as ‘The Ibis’. The nickname would come years later when journalist Evan Whitton wrote an article described him as being ‘like an ibis rising from a swamp’ when addressing the Street Royal Commission in 1983. It caught on. Being a barrister, Des Andersen could not deal directly with the client. So what did he do? He referred Driscoll to, of all people, his former articled law clerk, Colin Heazlewood, a brand new solicitor. Importantly, it is Sergeant Nixon and not Driscoll who introduces ‘The Ibis’ Andersen into the equation. In fact, Driscoll never mentions him at all. Was it just a coincidence that Nixon would mention Andersen’s name? Of course not. The value of mentioning Andersen, given Heazlewood was once his clerk, is that it makes all the more ridiculous Driscoll’s alleged rejection of Heazlewood’s offer to help in Melbourne. Nixon had enhanced Driscoll’s credibility.

* * * Tony Bellanto had not been well when the trial began. As it progressed, his health did not improve. He was gamely battling on, despite illness, when the second trial nearly came to an abrupt end. For someone who was intended to be a purely formal witness, Sergeant Nixon’s name bobbed up again, but in controversial circumstances. After his evidence, it emerged a juror knew him personally and sent the judge a note admitting so. It was the honourable thing to do and the judge called both silks into his private chambers and showed them the note. Both of us juniors and the respective solicitors waited outside. Sergeant Ross Nixon, the ballistics expert, had a purely neutral role in the trial. Both sides accepted his integrity and expertise. The note was no problem for the Crown but it dismayed us. Police friends and admirers were the last people we wanted on the jury. Not to put too fine a point on it, our whole case was that a number of police had conspired together to commit perjury against our client. Very generously the judge gave us overnight to think about it. As Bellanto was not at all well, the break was doubly welcome. We conferred, talking through the bars to Driscoll in the dingy, underground cells; there were no legal conference facilities. Bellanto asked Driscoll whether or not he wanted us to apply for the juror to be excused and proceed with a jury of eleven? Or ask for the whole jury to be discharged and start all over again? The latter was my preference, and I said so because this trial involved a massive attack on the police. ‘Why run an unnecessary risk?’ was my reasoning. If the judge refused the application that would provide us with an appeal point, just in case. David Baker disagreed with me and Bellanto wavered. Driscoll, in whom lay the ultimate decision whether to seek a discharge of the jury, had a dilemma. He was observing, at first hand, a trial presided over by a fair judge. Justice Yeldham was, at times, impatient, but he was scrupulously down the middle. It was late in November 1977. If the jury were discharged the retrial would not take place until the legal New Year. The advantage to us was Tony Bellanto would hopefully be fit and well again and back to his truculent best. The disadvantage was the judicial roster had already been drawn up for the following year. Suffice to say, the red judge—‘red’ from the royal scarlet robes worn during criminal trials in the Supreme Court— allocated to Darlinghurst in February was not Justice Yeldham. Driscoll elected to press on. He had a fair judge and he felt the juror must be a fair and honest man to have come forward as he did. We all hoped his optimism would be rewarded. Driscoll resumed his place in the witness box. With regards to Richard and Kaz Kaczmarek, Driscoll adamantly denied telling them, or anyone, he wanted to kill Maloney. He swore at his trial, in fact, that he had sold the murder weapon to Richard Kaczmarek for $150—a large amount in those days—the day before Maloney was shot. There was no doubt Kaczmarek had the motive and the means to commit the murder. After all, Jake Maloney was Driscoll’s friend. What of the discovery of the murder weapon, the .22 machine pistol? It was found in the ocean, among rocks just off Bondi Beach, where Driscoll had worked. The diver who found it had told police in a statement it appeared to him ‘it was meant to be found’—the location was and continues to be a popular site for professional and recreational divers. A slightly stronger throw may have seen the gun disappear into deeper waters and lost forever.

* * * The trial was almost over when Tony Bellanto reluctantly decided that he was not well enough to make the final address and asked me to do so. Justice Yeldham was very sympathetic. He had given us a whole day off to prepare the address. Perhaps he felt sorry for a murder trial accused losing the services of his chosen silk on the most important day of his life. Tony Bellanto was irreplaceable. On that last day, against his doctor’s advice, Bellanto left his sick bed to join me at the bar table. Before court, in the robing room, Bellanto and I recalled another murder trial in which I had been his junior. Bellanto was interrogating a policeman in the box when he was interrupted by the judge. His Honour took exception to Bellanto’s suggestion the officer had verballed his client: ‘Mr Bellanto, I do hope you realise you are making the most serious charge against this officer?’ Bellanto’s swift rejoinder was, ‘But not half as serious as the charge he has levelled against my client, Your Honour.’ That judicial discourse revealed the forbidden territory where, to some judges, the mere suggestion any police officer would be untruthful or lie was absurd and resented.

Recalling this anecdote was Bellanto’s and Baker’s way of emphasising to me the enormity and gravity of what Driscoll was alleging against the police and my need to face it and not shrink from forcefully articulating it. There was, of course, an unspoken concern about my suitability for the role. Putting it bluntly, was I up to it? Was I as truly independent as a private barrister would be in such a big case? It was no secret a Public Defender receives not a fee but an annual salary, which is paid by the government of the day. Some clients are fearful this consciously or unconsciously inhibits a Public Defender from attacking the police where it is their clear duty to do so, as was the case here. But there is no conflict of interest. The Public Defender system in New South Wales is unique worldwide. A Public Defender is as independent as a barrister in private practice both in name and in reality. Counsel is never a ‘mouthpiece’, but has a clear duty to put their client’s case. A barrister like me, who was a Public Defender, has all of the privileges but also all of the responsibilities of a barrister in private practice. The level of his or her ability is for others to judge. Driscoll’s life now depended upon my performance in an era when the police force enjoyed a largely favourable image. Pre-court cappuccinos in cardboard cups with plastic lids were obtained from the coffee shop across the road in Oxford Street. I must concede it wasn’t unknown at Darlinghurst for counsel on both sides of the record to fortify themselves occasionally with a stronger libation, usually obtainable in flasks from an establishment, I am told, next door but one to the coffee shop. Though I am sure it didn’t happen that morning. We discussed what lay ahead. If the jury had made up its mind to acquit then it was all over. I must be careful not to change their mind. If they had not, and were divided or tentatively leaning towards conviction, then the challenge was to change their minds by persuasion. At the end of the day, the jury’s decision as to where the truth lay may have been a difficult one, but it was not at all complex. It lay in the answers to these fundamental questions. Why was Heazlewood going to Melbourne that night? The answer is obvious. It was to confer with, advise and try— vainly, as it turned out—to protect Driscoll’s legal rights. Driscoll also topped the agenda as the reason for Detective Sergeant Morey’s trip to Melbourne. Why then did Detective Sergeant Morey lie to Colin Heazlewood about his motive and deny even knowing Driscoll had been arrested? Next question: If the records of interview were, as claimed, genuine documents, why weren’t they signed by Driscoll? That was always the powerful argument to which the Crown had no answer. The confession was unsigned. Without the confession there was no case against Driscoll. That is why it was invented, and that is why he refused to sign it. Next, if he was so resolute in refusing to sign, why was Driscoll so pathetically weak in admitting to the murder in the records of interview? Surely it must have occurred to an elite detective such as Mr Morey to satisfy everyone’s curiosity and ask Driscoll why he would not sign? No one ever did. Next, and extremely importantly, why did Detective Sergeant Morey flagrantly disobey the official instructions of the commissioner of police and fail to provide Driscoll with a copy of his ‘confessions’? Those instructions existed to protect honest police from false allegations and innocent suspects from the same. The simple answer was because they were not genuine documents and that is why their very existence was concealed. Finally, was there even a remote chance that Linus Patrick ‘Jimmy the Pom’ Driscoll was ignorant of the right, which every suspect has, to remain silent? Answer: Absolutely not. Even if he were so ignorant, why then choose to waive it when told, as the law required, he did not have to say a word? Was it to simplify the police task of fitting him up with a life sentence for a murder which he did not commit? Of course not. Justice, not mercy, compelled a verdict of not guilty in this case. The atmosphere in the court, where an underworld character had taken on the Force’s finest, was certainly a tense one. That was the massive elephant in the room blocking an acquittal: Jimmy Driscoll’s profile. He was not the man next door. The man next door does not own machine gun pistols nor is he enmeshed in a violent underworld war. The task of persuading a jury to take seriously an allegation by such a man against top police is always a formidable one and none of us underestimated the task. Time and again the jury was enjoined by me to totally banish prejudice from their deliberations. True, that was asking a great deal of them. Linus Patrick Driscoll was far from being a person without blemish, but on any view, he was certainly not stupid. In my address, my consuming objective was to be respectful and hopefully persuasive in communicating with that impassive twelve-person jury. If one’s personality is abrasive, the impact of the address will be diminished. Likewise with a superior or patronising presentation. The essence is in communication. Driscoll’s defence, I told the jury, ‘was a simple one’. He did not kill Jake Maloney. In fact, the two of them were mates. The centrepiece of his defence was he had made no confession. Not in Melbourne. Not in Sydney. Not anywhere. The unsigned interviews were a work of police fiction with Detective Inspector Noel Morey their author. No, Driscoll wasn’t threatened, bashed or tricked or induced. He was no timid wallflower. None of those threatening avenues would have worked on him anyway. The key which unlocked the case for the jury was a powerful one. It was the fact that, no matter how determined the police, and Mr Morey in particular, were to get him, Driscoll kept his nerve and refused to sign the bogus confession. Verballing a criminal can never be justified. It is no answer to claim the police motivation was well meaning, designed to punish the wicked when there was a lack of enough evidence. A lie is always a lie. Perjury is always perjury. Achieving what police believe to be justice by perjury is not justice. It is justice denied. The detection and punishment of crime is essential in any free and civilised democratic society and without dedicated and successful law enforcers there is mayhem. Police, and detectives in particular, rightly take pride in their achievements and enjoy wide community support and admiration for serving what they believe is the public interest. To state the obvious, the solving of murders enhances a detective’s professional reputation but the question arises, do the means of achieving law and order sometimes fall short of acceptability? Does the end justify the means? If the police place themselves above the law and lie to achieve what they believe to be justice, then the fountain of justice itself is poisoned. I closed, reminding the jury Driscoll is not on trial for having a dubious lifestyle or shady mates. He is on trial for murder. The most serious of all crimes on the criminal calendar. Please do not now write off his life on this shabby, inadequate material. That would be effectively substituting trial by jury for trial by police. When this trial is over we, the participants, can go over the road to the pub, back to our work or simply go home. Your verdict, once given, does not directly affect our future lives. But for Linus Patrick Driscoll it is the absolute reverse. His life is in your hands. There is an ancient legal principle which, through the centuries, continues to grow in acceptance and observance. And it is this. It is far better for ten guilty to go free than one innocent be convicted. Please carry

that noble principle in your hearts and minds when you retire to consider your verdict, which I respectfully submit to you should be ‘not guilty’. When I sat down, emotionally drained and before Bill Job QC began his address, Driscoll leant forward in the dock and said quietly, ‘Thanks, Bill.’ The thanks before verdict was generous. He knew I had done my best, but would it be good enough? I had addressed the jury for over three hours, imploring them, looking each one in the eye, raising my voice, moving about. Still no feedback, no smiles or quizzical stares or frowns, just twelve people with the best poker faces in town. My job had been to analyse the evidence and seek to convince the jury the police had fabricated Driscoll’s unsigned confessions, or at least raise a reasonable doubt. The conflict between the police and Colin Heazlewood could not be reconciled. The jury would have to decide whom they believed, the cops or the solicitor.

* * * For defence counsel, the closing address of the Crown Prosecutor is the second worst part of any trial. Undoubtedly, the moments just before the verdict is delivered are the worst. Bill Job QC began his address calmly and confidently. He told the jury, correctly, that this was a trial into the guilt or otherwise of Linus Patrick Driscoll. It was not an inquiry into the New South Wales Police Force or, more particularly, the questioning techniques of the detectives. The jury must not be deflected by side issues from their sworn public duty. This was not a complicated or difficult case at all, he said. It was all in the five-page and two-page records of interview with Driscoll, which the Crown emphatically said were unambiguous confessions. Nor did the confessions stand alone. Driscoll had owned the murder weapon and a twin. It was not a kitchen knife or blunt instrument but a rare and wicked weapon. Driscoll had elaborately modified the weapons into machine gun pistols. Mr Job even invited the jury to examine the weapon—unloaded—in the jury room. Driscoll admitted ownership of such weapons and, indeed, even the very murder weapon itself until the eve of the murder. That was on his own admission. Mr Job added Driscoll’s claim to have sold it for the princely sum of $150 the day before the murder was simply unbelievable and, in any event, was denied by the alleged purchaser. ‘What was the murder weapon? Answer: a machine pistol. Where was it found? Answer: Bondi, near where Driscoll had worked. All of that pointed to a guilty man.’ Very damaging stuff and Bill Job made the most of it in a way only the very best can do. Then, not in any sarcastic or unfair way, Job asked the jury to ignore the very prejudicial nature of the bombs and machine guns and concentrate not on speculation, but on the evidence. That was an honourable and proper course by Job, but from our point of view, the less said about that defence Achilles’ heel the better. Driscoll’s dubious friends, weaponry and the violence were not the fault of the police. Bill Job met the conflict between the versions of Detective Morey and the young solicitor, Colin Heazlewood, head on. He firmly and unambiguously asked the jury to prefer the inspector’s account where there was conflict between the two. The Crown relied upon Detective Inspector Morey as a witness of truth and honour. This was a powerful public endorsement of those police, powerfully presented. Bill Job absolutely ridiculed the proposition that Morey, O’Hagan and Rogerson would lie under oath or at all. The enormity of that allegation defied belief. On behalf of the Crown, and the State, Job embraced the unsigned records of interview as authentic, credible confessions given quite freely in Melbourne and Sydney. Driscoll’s attempt to retract them, when he realised what he had done, was understandable but too late. Bill Job QC concluded by asking the jury to fulfil what he said was its clear public duty and return a verdict of guilty. In contrast to me, Job had chosen a calm and analytical approach, relying heavily, as he was fully entitled to do, on the disputed confessions. It was a strong performance and by the time he finished, we felt crushed. In many trials, when the cases for both sides have closed, the likely verdict is a fifty-fifty proposition. The odds were heavily against Driscoll and the atmosphere at Darlinghurst that day in the legal room was gloomy. The trial had taken nine days. We were resigned to defeat. Baker, as was his custom, went down to the cells to be with Driscoll. No veteran court watchers—and all the regulars were there—gave Driscoll a chance of winning. They are seldom wrong. The fact Driscoll was a well-known underworld figure hung over the case and there was no possibility the jury would have any sympathy for him personally. The trial was edging towards a close—all that remained was the judge’s summing up. Judicial style can be far more influential than counsel’s presentation. The impartiality of the judge’s summing up was not something one could confidently take for granted towards the end of the twentieth century. Success as an advocate is one of the essential prerequisites before becoming a judge and many new judges carry too much of the advocate quality with them, and enthusiastically so, to the Bench. Impartiality is desirable, but not mandatory. Judges can, and often do, structure their summing up in a fashion that favours one side. That is permissible, provided the jury are told they are the sole judges of the facts. It is all a matter of balance. This task was new to Justice David Yeldham, but he exhibited a style that he further refined in the years ahead. That observation is based upon my personal experience of conducting trials before him at Darlinghurst and a murder trial at Broken Hill. Human nature being what it is, in a difficult case such as this, I thought the jury might look to the judge for a hint as to his line of thinking. He gave none. His summing up was scrupulously fair and even-handed and, unlike counsels’ addresses, concise. It was now up to the jury of twelve, if they were able, to reach a unanimous verdict. It was mid-afternoon.

* * * There is no tenser moment than when the court is told the jury has reached a verdict. At Driscoll’s first trial the jury took just one hour to reach a guilty verdict. This time, only sixty-five minutes had elapsed. It was not a good sign. Spectators crowded inside the public gallery, the official court reporters sat beside the judge’s associate in front of the judge, and the counsel and solicitors were all seated at the bar table. There were police everywhere, surrounding the dock, sitting and standing. Clearly, this was a big day for the New South Wales and Victorian police. There was a knock on the green felt–covered door leading to the bench from the judge’s chambers. The officer of the court, the tipstaff, appeared in a black frock coat carrying a white staff tipped with a gold crown, the ensign of the office and authority of a judge of the Supreme Court. Then, Justice Yeldham entered the court in his scarlet robes. The judge nodded towards the dock and Jimmy Driscoll was quickly escorted up the stairs from the dimly lit cells into the dock, where he remained standing. Driscoll was dressed in his conservative dark suit, white shirt and dark tie. Despite the intense glares of everyone in the court and the prospect of life behind bars, he appeared calm and composed. There was complete silence.

The judge said briskly, ‘Bring in the jury.’ The jury filed in and took their seats in the jury box. As usual, their faces were utterly expressionless. The jurors did not look at the accused, which is usually a sign of an impending conviction. The only people standing were the judge’s associate, Jimmy Driscoll and the four uniformed police surrounding the dock. The tension was great. The judge nodded to his associate and she then said, ‘Would the foreman please rise.’ The associate then asked, ‘Has the jury agreed upon a verdict?’ The foreman said, ‘We have.’ The associate asked, ‘Do you find the accused, Linus Patrick Driscoll, guilty or not guilty?’ In a firm, clear voice, the foreman answered, ‘Not guilty, Your Honour.’ There was no audible reaction in No. 5 Court at Darlinghurst, only a stunned silence. The detectives did not hide their disappointment. This was not just any case: they had been accused of fabricating an unsigned confession and verballing a prisoner to get a conviction. The jury had not made a finding that the police were corrupt, but the verdict said as much. Driscoll was cool as usual, but suddenly raised his voice, saying he wanted to address the judge. A million things went through my mind. I could not allow Jimmy to speak. He had been acquitted and what if the foreman had made a mistake and delivered the wrong verdict? By law, if the foreman got the judgement wrong, the acquittal could have been reversed providing the jury had not left the jury box. I think it was caution and the shock of the acquittal that made me talk Driscoll out of giving a final speech. I certainly didn’t want Jimmy Driscoll going down in legal history as a modern Daniel, who had returned to the lion’s den for his hat! To this day I wonder what Jimmy Driscoll wanted to say to the courtroom full of police officers staring at him. Perhaps he just wanted to thank the jury or the judge for a fair trial? On the other hand, he could have been filled with an uncontrollable urge to vilify the police for framing him. After all these years I believe my instinct was right. The objective had been achieved. The jury’s verdict was final. There had been no mistake. The Sydney Morning Herald of 30 November 1977 carried the not guilty verdict under the headline, New jury acquits man of murder. The report continued: ‘…junior counsel for Driscoll, Mr W Hosking, spoke to him when Driscoll asked Mr Justice Yeldham if he could say something, but he said nothing after being spoken to by Mr Hosking’. After the verdict, Driscoll did not walk free from the dock into the afternoon sunshine, but was taken below to the cells at the request of the Crown Prosecutor Bill Job QC, because of outstanding, unresolved firearm charges that had been in play for more than three years. As he was led away, Driscoll smiled and waved to his wife, Pauline, and friends in the public gallery. Later that week, the holding charge of possessing a submachine gun was dropped by the Crown when he appeared before another judge, this time in the District Court. Driscoll’s troubles were not over yet. As he left the District Court dock, detectives stopped him and read aloud a provisional warrant from Victoria. He was sent back to Melbourne where he served more time for possessing firearms and was finally deported to Britain. In total, Driscoll had served almost four years in a maximum security prison. From a selfish point of view, the Driscoll trial was okay for me. It was my first big win. Driscoll and his wife, Pauline, sent me a thank you Christmas card that year and, yes, it was signed. I still have it. In 1991, Driscoll granted an interview with columnist and solicitor, Chris Murphy, for the weekend tabloid The SunHerald. It read, ‘Out of trouble since being deported to England in 1979, Linus Driscoll has blended into an elegant London suburb. He has belied his Australian media image as a “crim who put the fear of God into most of his underworld cronies” by graduating through night school and college. He is working as a plumbing and heating engineer.’ Then, while researching this book, it was discovered that, in 1994, the Department of Immigration approved Driscoll’s application to return to Australia. If he did, he has obviously kept out of trouble as his name hasn’t appeared in the media or police dispatches since. Driscoll would now be well into his late seventies.

* * * Driscoll’s case became a landmark decision by the High Court and was the beginning of the end of the notorious police verbal throughout Australia. The ultimate police surrender to the descent of the police verbal into history was still years away. It would be another few decades before police were compelled to adopt the use of electronic recording devices during records of interview. The use of audio and visual recording was a gradual recognition of reality and the need for more sophistication, rather than the crude verbal forced upon Linus Patrick Driscoll. In the outside world, computers revolutionised commerce and daily life long before being embraced by police. Top police were then, and are always, highly intelligent and committed. It must be said their surrender to technology was also helped along by parliamentary reform to the Evidence Act 1995. Driscoll’s case is such a historic trial because the decision of the High Court to allow his appeal cited the danger of police verbals. The jury’s courageous rejection of the Driscoll verbal murder confession was resoundingly vindicated. Out of court, some police were not shy about admitting to verballing. Again, in the Chris Murphy 1991 article for the Sun-Herald, Roger Rogerson admitted, ‘the others [police] would think you are weak if you didn’t do it … and prisoners think a policeman who doesn’t give them a few words of a verbal isn’t worth his salt’. He added, ‘The hardest part for police was thinking up excuses to explain why people didn’t sign up.’ As a media commentator, Chris Murphy was as influential and respected as he remains today as a leading lawyer. His absolutely fearless column, quaintly named ‘Murphy’s Law’, was required reading for politicians, judges, lawyers and police. Some hoped for a mention, others dreaded it. He was also a passionate combatant against the police verbal, and once drove a vehicle around Sydney which bore the numberplate VERBAL. From the seventies on, the police force was a disciplined, hierarchical body based substantially on competence and efficiency and seniority. Seniority, however, was the dominant factor. There was no room for not playing the game. It was considered dissent. Dissent would betray, it was said, ‘an attitude problem’ and ‘unsuitability’ for detective work. Then uniform postings to arid, desert outposts like Wilcannia and Hillston, in western New South Wales, beckoned. As in Driscoll’s case, police resent answering allegations of lying. That is understandable. Accusations of police perjury—and worse—are stressful for all concerned. They are hurtful to police and their families. That must be more so in cases where the police officer involved knows the allegations are false. But the client’s instructions set the agenda subject to strict ethical and professional restraints. Counsel have a duty to perform. If your client says they were verballed, you are bound to put that case before the court. Our system of justice is an adversarial one. Modern electronic interviewing techniques not only protect police against unfair attacks by criminals but also protect suspects from being framed with false evidence. The introduction of the video technique by police has dramatically reduced the courtroom clashes over alleged verbals. That former, almost staple, diet of criminal trials is today virtually dead.

* * * Driscoll’s new life on release contrasts greatly with that of his adversary, Detective Roger Caleb Rogerson. In June 2016, Rogerson’s downward spiral culminated when he and his coaccused, former detective Glen McNamara, were found guilty of the murder of twenty-year-old Jamie Gao two years earlier. Both Rogerson and McNamara accused the other of pulling the trigger during the botched drug deal. Then later, in September, Justice Geoffrey Bellew sentenced the frail 75-year-old to life imprisonment. The former, highly decorated detective’s conviction was achieved without either a signed or unsigned confession—not a verbal in sight. Perhaps elite detectives of the twenty-first century are more chivalrous than those of the Morey–Rogerson era.

CHAPTER

2 The Trial of Lady Chatterley’s Lover

Lady Chatterley’s Lover was the romantic, even dashing, literary creation of the novelist DH Lawrence. In the tale, the gamekeeper, Oliver Mellors, enjoyed a torrid love affair with the noble lady of the house, Constance Chatterley. The climax, if I may so describe it, was romantic. It was first published in 1928, but banned in Australia and many other countries because of its explicit story. Far too risqué for the times. My client, Jozef Kiraly, was a humble gardener retained in that capacity by the dowager lady of a Sydney northern beaches mansion, Mrs Prudence Lydia Washington Carter. Her residence was in the fashionable Prince Alfred Parade, Newport, overlooking the glistening waters of Pittwater, which is dotted with recreational sail and motor boats. Their relationship grew from friendship to seduction and a love affair. Kiraly was Mellors to Mrs Carter’s Lady Chatterley. Kiraly and Mrs Carter’s friendship dated back almost twenty years to when her husband was alive. After Mr Carter’s death, they had drifted apart. Mrs Carter had been a widow for almost four years when she encountered Kiraly again, by chance, at the Newport Hotel. Mrs Carter was a handsome and lonely lady living in the large mansion and soon invited Kiraly to move in. He readily agreed. Having been her husband’s gardener he was engaged to do gardening for her, but only one day a week. Free board, with his own room, was offered in lieu of wages. A talented cook, he would also do most of the cooking. He was called ‘Joe’ but she was never to be called ‘Prue’—she was ‘Mrs Carter’. She was sixty-two years old. Jozef Kiraly was two years her junior. As time went on, the mistress–servant relationship softened to become very friendly, eventually moving on to seduction and a love affair. Kiraly began to refer to Mrs Carter as ‘darling’. Tending the flowers was less fun to the couple than sharing a whisky and red wine in bed, mornings and evenings. The development of a love triangle shattered that tranquillity. Another, younger, man called Alan arrived on the scene. When Mrs Carter taunted Kiraly about her younger man, his pathetic reply was, ‘Forget me, I am a poor man.’ Later, he would modestly proclaim that, as a lover, ‘Nobody ever looked after her like I did.’ On the night of 16 May 1973, the couple shared a bottle of Hungarian liqueur as a farewell drink. Kiraly had accepted Mrs Carter was moving on with her life, and they slept together, but there was no sex. The events of the next few hours are uncertain. The following day, 17 May, Mrs Carter woke Kiraly shortly before 5 am by stroking his face gently and suggesting they share a cup of tea. Mrs Carter took her tea with the conventional milk and sugar, and copious amounts of whisky. This predilection of having whisky in her tea existed well before Kiraly was on the scene. In Mrs Carter’s own words, ‘it just warmed me … it is smoother’. Kiraly also drank tea, but usually followed it with red wine. This was their daily ritual. Normally, Kiraly did not match Mrs Carter’s consumption of alcohol. He was employed as a stonemason and during the day he did hard physical work. A heavy, pre-dawn tipple was not a good idea. On this day, however, Kiraly and Mrs Carter consumed a half bottle of whisky between them and Kiraly had foregone his usual habit of having red wine. For Mrs Carter, the situation suddenly became ugly. Kiraly threw her bedclothes off and, after a struggle, he tied her hands and ankles with rope. According to Mrs Carter, Kiraly retrieved a four-gallon drum (roughly eighteen litres) of petrol from the garage and ‘sloshed’ the contents all over the bedroom carpet. She was terrified. After a time the tension subsided and Kiraly freed Mrs Carter from bondage. The couple then had yet another cup of tea and talked. Mrs Carter later said Kiraly produced fourteen of her Mandrax sleeping tablets. She consumed seven of the tablets and he the remainder, which he spat out. The next thing Mrs Carter knew her house was full of thick smoke. Kiraly lay unconscious on the floor next to the empty four-gallon petrol drum. Fire brigades and an ambulance rushed to the scene. Kiraly was soon on his way to hospital for treatment. For a day, his life hung in the balance. Most of the fire damage was to the furniture and carpet in the main bedroom, which was totally destroyed. Ironically, the double bed escaped almost unscathed, but for a little scorching. It was mid-afternoon when Sergeant Stuart MacLeod arrived at the scene. Mrs Carter was still wearing her nightie. MacLeod noticed reddish rope-burn marks on her wrists, and bruises and abrasions on her body. Detective Sergeant Mervyn Schloeffel of the Special Crime Squad from headquarters soon took charge of the case due to its gravity. Upon Kiraly’s release from hospital he was arrested and charged with arson. The charge was further aggravated by the fact that the police alleged the fire had been deliberately lit with Mrs Carter still inside the room. At the time, an arson charge carried life imprisonment. Kiraly was in big, big trouble. Kiraly had lived in Australia for almost twenty years, having emigrated from Hungary, and spoke English quite well. Even so, from the outset, he asked Detective Sergeant Schloeffel for the assistance of an interpreter before being questioned. Police readily agreed. He had never been in trouble with the police before and perhaps didn’t trust he could explain himself clearly in English. This caused a delay of some hours while an official Hungarian interpreter was located. Detective Sergeant Schloeffel’s questioning of Kiraly was searching but fair. Kiraly admitted being drunk at the time, restraining Mrs Carter and fetching the petrol, which he splashed about the bedroom. In his explanation to police, he blamed Mrs Carter for mixing the alcohol to make the prescription drugs cocktail. Kiraly’s portrayal of the liquor and ropes as a prelude to playful sexual servitude was not an instinctively appealing explanation. The uncontested evidence was damning, but he refused to admit to lighting the fire. To police, this was not a trivial domestic dispute: the ropes and the petrol smacked of malice and revenge. And Kiraly was the only person likely to have lit the fire—there were only two people present in the house, and Mrs Carter had no motive to torch her own home. Kiraly’s admissions leading up to the fire became damning circumstantial evidence of planning and premeditation. The four-page record of interview was read aloud by the independent interpreter and signed by Kiraly and Detective Sergeant Schloeffel, who handed Kiraly a copy, which he was able to give to his solicitor. The signed interview did him no favours, but that was not the fault of the police. His conduct had been completely out of character.

* * * The trial was listed for the District Court of New South Wales, a little over eighteen months after the fire, in January 1975. Hearing the matter was Judge Muir, a senior judge who had a reputation for being wise and even handed, always preserving the balance. Jozef Kiraly faced two charges, arson and assault. The arson charge was for setting fire to the house; the charge of assault came from tying up Mrs Carter’s hands and feet prior to lighting the fire. Mr Kiraly was not a wealthy man and, as such, received my services through the grant of legal aid to private solicitors. From a legal point of view, Kiraly’s defence presented formidable difficulties. The obvious obstacles to an acquittal were the mere presence in the bedroom of the petrol and the rope. These items were totally inconsistent with desire and tenderness, but consistent with force and hostility. The Crown relied upon them as proof of the jealousy of a jilted lover. They didn’t agree with Kiraly’s explanation that tying Mrs Carter’s hands and feet was a prelude to a predawn episode of consensual bondage. The details of any sadomasochistic behaviour between the grand and buxom Mrs Carter and the diminutive and humble Mr Kiraly would have tested the jury’s imagination. Whisky, red wine and sex would have been avant-garde, but bondage and discipline would have been an unknown pastime on the Northern Beaches in the seventies. The Crown had taken the trouble to brief Mr JK O’Reilly, a senior barrister at the private bar, himself destined for judicial office. His presentation of the Crown case was extremely persuasive. He made pointed reference to the availability of ropes in the bedroom, adding the use of petrol negated any explanation of impulse and pointed to premeditation. Mr O’Reilly relied upon, as the Crown was fully entitled to do, the strong circumstantial evidence of guilt against Kiraly. Mrs Carter presented herself well as the key prosecution witness. She was impressive and dignified, and it was obvious the misfortune that befell her that day was not of her making. Her only crime, if you could call it so, was having had an affair with my client. It was, however, he that let her down and not the other way around. With Kiraly’s statement, all the circumstantial evidence, and now Mrs Carter’s testimony, I had a difficult job ahead of me. Under cross-examination, Mrs Carter readily agreed with me that she and Kiraly had formed a relationship which she enjoyed. Kiraly described her as his girlfriend and Mrs Carter had no problem with that. She also liked a drink, with the clock not governing the hour of commencement of consumption. Brandy or whisky were her favourite additions to tea. Nor did it impair their ‘enjoyable sexual relationship’. The 5 am partaking of scotch or brandy, or on Kiraly’s part, red wine, gave the expression ‘early opener’ a new dimension. After the Crown rested, it was my turn. My reference to Lady Chatterley in my address to the jury was very much an unintended throwaway line in outlining the accused’s defence. My emphasis was on the important fact that the bedroom indiscretions were adult and consensual. To state the obvious, they bore little resemblance to the plot of the DH Lawrence novel other than the two participants were the lady of the house and her gardener. The Sydney afternoon tabloids, however, latched on to the description and gave front-page prominence to the trial. Not because of any legal significance, but for its salacious romantic overtones. Even the conservative Sydney Morning Herald prominently carried accounts of the lovers’ trial in detail. Mr Kiraly was no Errol Flynn, Sean Connery or Daniel Craig. Nor was he a tall man. His appearance exemplified modest mediocrity, certainly not the profile of a dashing, violent lover. The lady of the house, Mrs Prudence Lydia Washington Carter, had perhaps been a shade indiscreet in embarking upon this affair, but hardly deserving of the public censure and massive public embarrassment which followed. She was a respected local lady and deservedly so. As I told the jury more than once, and with a distinct lack of originality, the District Court of New South Wales was not a court of morals. My argument lay in my client’s legal responsibility while under the influence. In those days, self-induced intoxication, through alcohol and/or drugs, could diminish legal responsibility completely. It could also reduce the length of any gaol sentence depending upon the degree of impairment, not increase it. Kiraly’s excessive consumption of alcohol, producing a deadly cocktail when mixed with the sleeping pills, was a crucial factor on the issue of intent. The undeniable fact was Kiraly had consumed so much, in the form of drugs and alcohol, he was found unconscious, lying on his back, and was taken to hospital close to death. Could he have been in control or conscious of his actions? Kiraly had the option of either giving a dock statement, without having to undergo a cross-examination, or facing interrogation in the witness box. He elected to go into the witness box; there was nothing to lose. We hoped his responding to the Crown’s case under cross-examination might help the jury understand Kiraly’s situation at the time of the fire and have sympathy for him. If not, his testimony might at least create an element of doubt. O’Reilly’s skilful cross-examination of Kiraly swept away all the drama beloved of a paperback novelist of love and liquor. He focussed devastatingly on his admissions contained in the record of interview. As O’Reilly unsympathetically pointed out, these were Kiraly’s own words translated by a reputable, official interpreter. The mere description of Kiraly as a gardener did not do him justice. There was more to him than that. In the witness box, facing the examination and cross-examination, Kiraly handled himself well. There was something about him you couldn’t help but like; he was a very charming and likeable person. He told of meeting Mrs Carter, who picked him up in her car at the Newport Hotel. He described the couple’s drinking habits, which were a shade unconventional, particularly first thing in the morning. He also told the jury that, on the day of the fire, he remembered nothing more than tying Mrs Carter up and pouring the petrol. This was honest and truthful, but hardly helpful to his cause. Kiraly’s record of interview with the police was explanatory, but not exculpatory. However damaging Kiraly’s responses were to his case, the manner in which he answered had you believing he was telling the truth. He really had no memory, and he didn’t accept he had started the fire. Where a person of good character is accused of a serious crime, they are entitled to have that fact placed before the jury. Kiraly was facing life imprisonment. Seldom have I been able to call more impressive character evidence than in this case. First up was Navy Commander Ronald Ware, a marine surveyor and industry executive, who had known Mr Kiraly for sixteen years. He was eloquent in his praise of Kiraly’s honesty, dedication to charity and community spirit. Commander Ware had raised bail for Kiraly on his arrest. A family friend, Dr Stephen Koraknay, the mathematics master at the exclusive Knox Grammar School, had also known Kiraly for sixteen years and gave evidence. Other solid family and surf club friends of longstanding joined the extraordinary line-up of character witnesses. The final witness was solicitor Mr Peter Montgomery of Newport, who had known Kiraly since the age of seven, describing him as ‘like a grandfather’ and ‘embarrassingly generous’. Even the police, when asked by me in front of the jury, spoke well of him from a character point of view. With such prominent community support it was pleasing Mr Montgomery and his friends were content for a public defender to act for Kiraly.

* * * All the evidence had been given. In Mr O’Reilly’s closing address to the jury, his admonition not to be deflected from their duty by sympathy was firm. He told them their duty was to rely on the evidence, not newspaper headlines. There

had certainly been a lot of those. Judge Muir’s summing up disappointed me. It focussed squarely on the admissions Jozef Kiraly had made to the police and not denied by him, and the tying up of Mrs Carter, and the rope burns and abrasions she had suffered. Judge Muir told the jury the Crown was fully entitled to rely upon the signed record of interview, which were Kiraly’s own words translated by the official interpreter requested by him. The judge added that any doubt about whether the police had treated him fairly or not was laid to rest by the fact neither Kiraly nor his barrister had made the slightest criticism of the police conduct in the case. On the other hand, the judge did emphasise the importance of Kiraly’s good character and the impressive evidence called to support it. He reminded the jury of the alcohol consumption by both, and the resultant confusion in the house on the day of the fire. When the jury retired to consider their verdict, Mr O’Reilly told me he thought the judge’s summary of the defence case was overly favourable to the defence. I guess both sides feeling the other side fared better is perhaps the hallmark of the perfect summing up. The verdicts were returned after an incredibly brief retirement of thirty-five minutes. At the end of the day, this jury was not deflected from its duty. There were two counts in the indictment arising out of events in the bedroom. The jury acquitted on the first count of arson, a result that left me and my client stunned, but convicted on the second, which was common assault. As the jury foreman gave the verdicts, it was put to Judge Muir that the jury gave ‘a strong recommendation for leniency’ in sentencing Kiraly for common assault. Against the odds, against a strong circumstantial case, against an almost full admission to the charge, Kiraly came out a winner. Kiraly was released by Judge Muir on a good behaviour bond. The judge said he did so after taking into consideration the jury’s mercy recommendation and Kiraly’s previous good character. Judge Muir was not bound by the jury’s recommendation, but he did take it into account. The trial had a sad and unhappy postscript. The fire caused a great deal of damage. Gossip forced Mrs Carter to move away from the mansion with sea views and the large manicured garden. She told the Daily Mirror, ‘I certainly know who my friends are after this case … I was actually the injured party, but I have been made to feel I am on trial.’ She was accurately described in the same tabloid as ‘a handsome grey haired widow’. The Daily Mirror devoted almost its entire front page of 30 January 1975 to the verdict. The headline read, LADY CHATTERLEY’S LOVER FREED. ‘HAPPY’ SAYS THE GARDENER … ‘UNHAPPY’ SAYS THE WIDOW. The Mirror went on to report, ‘Outside the court, Mrs Carter denied she was a Lady Chatterley but agreed she had an affair with Kiraly. “I’m very unhappy” she said. “I’ll never see him again. It’s been a terrible and embarrassing experience for me.” ‘Kiraly said, “I am happy with the result. If I had gone to jail I would never have come out alive. I am too old.”’ The last word rested with Mrs Carter who told the Mirror, ‘My only crime was that I was found out.’ Plainly, Mrs Carter had committed no crime and, as she claimed, was very much the injured party.

CHAPTER

3 Mrs Dawson Makes the News

Sometimes children say remarkable or insightful things, thus the phrase ‘out of the mouth of babes’. In 1973, a sevenyear-old child stood in front of her class and spoke three simple, yet unexpected, words. Those words would set in motion a homicide investigation and the words themselves would become the centrepiece of a legal argument over what was said, and how police interpreted those words. The difference would mean everything.

* * * The story begins one late autumn evening on 27 May 1973. Lance and Colleen Dawson were at home in their farmer’s cottage at Graman, a small town near Inverell in the New England district, northwest New South Wales. Their two children, seven-year-old Mary and five-year-old Tommy—not their real names—were in bed. The Dawsons were playing cards with neighbours, Marie Kennedy and her husband, and a friend, Albert Henry McInnes. About 10.30 pm the Kennedys left to go home and, soon afterwards, so did Mr McInnes. Discreetly, Mrs Dawson left the house to rendezvous with McInnes at his car. Lance Dawson was too busy drinking to notice, or so she thought. The romance of that chilly autumn evening was shattered when Lance Dawson, well affected by alcohol, found the amorous couple in the car. To use the formal Latin description, he had caught flagrante delicto his de facto wife and McInnes. Lance Dawson made no secret of his disappointment and a scuffle developed. The lover abruptly left, advising Colleen Dawson to accompany her de facto husband home, which she did. The Dawsons were battlers. Lance Dawson was the overseer on a local property called Burmah. Colleen Dawson’s home duties were running the household and looking after Lance and their two children. On the night of the tragedy, Lance and Colleen Dawson had returned to their home after the discovery of her infidelity in sullen silence. The children were sound asleep in bed. A bitter argument ensued. Lance Dawson produced his rifle. A shot was fired. Lance Dawson slumped to the floor in a pool of blood with a bullet wound to the head. He was still holding the gun. Distraught, Colleen Dawson rang their neighbours for help. They converged on the Dawson home. Lights went on all over the little village as word of the tragedy rapidly spread. Soon the ambulance and the police arrived from nearby Inverell with sirens wailing and coloured lights flashing. But it was all too late. Lance Dawson was dead. When the ambulance arrived, Colleen Dawson was distressed and crying. Those present could understand little of what she was saying. She kept asking, ‘Where is Lance?’ She was in denial. She was hysterical. It had happened before her very eyes. Police attending the scene observed that Mrs Dawson appeared to be genuinely upset and was not involved in the death. She was in such a state, even the news her de facto husband was dead was kept from her by the police. They eventually took her to Inverell Hospital. Life on the land is isolating and, sadly, it’s not uncommon for police in country towns to get called out to shootings. The weapon was a .22 calibre rifle. On rural properties they are commonplace. The ready availability of the rifle was in no way suspicious. In the 1970s, Inverell was considered a big town of ten thousand people, with experienced detectives stationed there, including Detective Sergeant Alan Brown, who attended the Dawson home and later interviewed Colleen Dawson. She told Detective Brown her de facto had shot himself—in a word, suicide. That was the on-the-spot assessment of experienced police too. The final word, though, would come from the government medical officer (GMO), Dr HGD Cookson, a respected local GP, who conducted a post-mortem examination. The doctor’s verdict on the cause of death? Suicide. Case closed. Life goes on. Lance Dawson’s body was released for burial and taken across the border to be put to rest in his hometown of Texas, Queensland. At the funeral the harsh reality set in. Despite the affair, Collen Dawson loved Lance. Now he was dead. Only in her early thirties, she was a widow and a single mum. She was not only poor but unemployed and the family was homeless: the farmer’s cottage went with Lance Dawson’s job. There was no sentiment in rural employment. Anyhow, there was nothing to keep the family in Graman any more. Eventually, Colleen Dawson would move herself and the children to Texas but, until then, the children continued attending the Inverell local school. It wasn’t long after the funeral when young Mary, having returned from Texas, was invited by her teacher to address her classmates with any interesting news she may like to share. The school encouraged children to share small events from their lives to practice public speaking and overcome shyness. Mary dutifully stood still, hands by her side, and announced, ‘Mummy shot Daddy’. It didn’t take long before the entire school and most of the district had heard the story. The one-minute speech at primary school had suddenly put Mrs Dawson in the frame for murder. Soon, town gossip led to the extraordinary step of New South Wales Police requesting the exhumation of Lance Dawson’s remains. Except in the case of suspected poisonings, exhumation of a body buried in a cemetery after a funeral is an extremely rare event. This was a police initiative based solely on garbled children’s schoolroom gossip. There was no fresh evidence. There was no basis to suspect the first autopsy was wrong. Had Mrs Dawson been an affluent individual, and had she been advised by the police of their intention, she would have certainly sought to have the family’s privacy and dignity preserved by a court injunction. But she was a recently bereaved single mother with no income. Lance Dawson had died from a gunshot wound and the finger of blame was now pointed at one person, Mrs Dawson. Fixing her with culpability depended upon, first of all, discrediting the official autopsy. The Inverell doctor who had carried out the post-mortem had himself died, which precluded asking him to reconsider his opinion. He had not been a government employee, but a respected local general practitioner contracted to perform government autopsies and other official duties. He would not have been the only professional involved if there had been what are so often euphemistically called ‘suspicious circumstances’. Then, as there is now, there was a sharp contrast between rural post-mortem examinations conducted in the local

hospital morgue and government-employed forensic pathologists conducting post-mortems in the elaborate facilities at the Glebe (State) Coroner’s Court complex. They have a heavy workload at Glebe, but have great experience, expertise and, above all, professional standing. Lance Dawson’s body was exhumed and examined for a second time by Dr Merick O’Reilly, a top Queensland forensic pathologist. He found the entry wound was behind and below the right ear with the exit wound in the top of the skull. Lance Dawson was shot from behind. Dr O’Reilly could not completely rule out the suggestion of suicide but, in his opinion, it was a remote possibility. In the police’s view, the exhumation of Mr Dawson’s body, resulting in a different medical opinion, had changed the landscape of the investigation. Detective Sergeant Brown notified his superiors in Tamworth, over 200 kilometres away from Inverell. He was outranked by Tamworth detectives, and was no longer in charge of the case. In early July 1973, Detective Sergeant RG Hole arrived in town to manage the enquiry. His first task was to travel with Detective Brown to Texas, Queensland, where Colleen Dawson and her children were living, and interview young Mary to find out what she knew about her father’s death. The fact that seven-year-old Mary had a speech impediment complicated the police interview with her in that it made it difficult to properly understand what she was saying. Even so, Mary admitted to telling her class and other friends, ‘Mummy shot Daddy’. That was enough for Detective Sergeant Hole. After interviewing Mary, Detective Sergeant Hole arranged to interview Mrs Dawson at the Texas police station. He informed Mrs Dawson her daughter had told the police she had seen ‘Mummy’ shoot ‘Daddy’. Mrs Dawson crumbled and then allegedly replied, ‘Yes, I did shoot him. He deserved it. He was knocking the kids and me around. I was frightened of him.’ After making a typed, three-page confession, Colleen Dawson was charged with Lance Dawson’s murder. She was not allowed to go back to her children. To the best of my memory, I believe the children ended up in foster care. Mrs Dawson was removed to Inverell, where she was officially processed. She spent time in the police cells while waiting for a flight to Sydney. She would eventually be taken to the women’s prison, Mulawa, near Silverwater, an industrial area in Sydney’s western suburbs. That is where I first met her. In the visiting area at Mulawa Women’s Prison, Mrs Dawson was bewildered and upset. She was penniless and helpless, dressed in the prison green tracksuit and wearing sandshoes. Understandably, she was anxious about her children. In fact, she was more interested in talking about them than her own terrible predicament. We spent several hours discussing what lay ahead and then said goodbye until the committal proceedings, which were to commence at Inverell the next week. I saw her next the following Sunday morning at Sydney Airport on my way to the committal. To fly to Inverell all passengers were taken by bus from the terminal to the commercial plane. Not Mrs Dawson. She was escorted by two prison officers, in custody, to the rear of the plane. She had at least been allowed to swap her prison greens for civilian clothes. The flight north was a bit over an hour. On arrival, Mrs Dawson was taken to the Inverell police station cells. In any custody environment, let alone in an old country police station like Inverell, cells are grim. Of course, they are not meant to rival the Hilton. Mrs Dawson’s cell had no window, but bars, high up, through which sunlight came pale and filtered, a tap, a toilet, but no bed. Instead there was a wooden bench without a mattress fixed to the wall. The magistrate hearing the committal, Mr McMahon, persuaded police to provide an iron bed for Mrs Dawson. The bed took up most of the cell and her confinement remained harsh. Personal hygiene and exercise were an early casualty, simply through lack of facilities. The meals were cold and drab. The cells were meant only for overnight patrons, and unwilling ones at that. The welcome mat was well and truly in the cupboard. The behaviour of the random selection of residents of adjoining cells did not help Mrs Dawson have a restful night. My instructing solicitor and I could not see her. There were simply no facilities. A legal visit is useless when both parties are standing and conversing through the hatch in the huge iron cell door.

* * * The state, which had charged Mrs Dawson with the most serious of all crimes, now provided her, free of charge, with hopefully competent and experienced legal representation (me). When I was briefed to appear for her it was my first case as a Public Defender, but not my first murder brief. As a new Public Defender, I had available to me Mr John Shields and his public solicitor, Mr Jim Doyle, both very experienced men and an example of the value of the Public Defender system. The system has trebled in size since the days of Mrs Dawson. There are now twenty-four Public Defenders. The rights of the poor are as precious as those of the more fortunate. Hopefully, that is also the community view. When a Public Defender arrives in a country town to represent his client, the police are often cagey and unhelpful. But on this occasion, I was surprised to discover the local detective, Sergeant Brown, was completely honest and straightforward. He even met me at the Inverell airport. In my three decades of legal work, I’d rate him as the most honest police officer I’ve ever met. The committal proceedings would take place at Inverell before the district magistrate, Mr John McMahon, one of the state’s top magistrates. He was a firm but kindly man who had some prior experience as a defence lawyer while on secondment to the Public Solicitor’s Office. Committal proceedings do not determine the guilt or innocence of the accused person. They are a preliminary hearing before a magistrate to determine whether there is sufficient evidence to commit the defendant to stand trial in a higher court. If there is not, the charge is dismissed. That was not at all likely here, but even where a magistrate does dismiss a charge, the Crown has the right to file an indictment and there is still a trial. A decision by the magistrate to commit for trial is also not decisive. The Crown can elect not to proceed to trial and drop the case altogether. That is called a ‘no bill’. Again, that was out of the question here. The evidence against Mrs Dawson appeared to be overwhelming. Other than the signed confession, Mrs Marie Kennedy, one of the neighbours who’d shared the evening playing cards, told the police that, a few weeks before the shooting, Mrs Dawson showed her a bullet hole in the wall of the house and said, ‘I done that with a rifle … I missed Lance the first time, but I won’t the second.’ Also damaging was Mrs Kennedy’s claim Mrs Dawson had told her, on the night of the shooting, ‘I think Lance is dead, I shot him.’ Mrs Kennedy’s husband, however, contradicted his wife’s recollection. The Kennedys were the first to arrive at the Dawson home after the shooting and Mr Kennedy told police Mrs Dawson had only said, ‘Lance is on the floor and can’t get up.’ They both gave statements that the rifle was in Mr Dawson’s hands. On the defence side, Mrs Doris West, the local postmistress, told police of receiving a phone call from Mrs Dawson around midnight saying, ‘There’s been a dreadful accident, Lance has shot himself.’ Mrs West advised her to call for help. Mrs Dawson continued to tell her, ‘Lance was going to shoot me and I went to get the gun and it went off in the struggle.’ That was oddly contradictory. If there were a struggle, perhaps an issue of self-defence or accident would arise.

There was yet another major obstacle to mercy and sympathy for Colleen Dawson, and that was the fact that, an hour before Lance Dawson’s death, the deceased had caught her having sex in a car with Mr McInnes, who would also be called as a witness. Unfortunately for Mr McInnes, the details of his infidelity would be splashed across the pages of the local newspaper, The Northern Daily Leader, its circulation covering the whole of the New England area and most of northwest New South Wales. On the face of it, the police interview alone was more than capable of convicting Mrs Dawson of murder. The other evidence against her was purely circumstantial, but many a ‘lifer’ is precisely that because of circumstantial evidence. In preparing for the hearing, I opportunistically requested all the police notes on the case from Detective Sergeant Brown. It was no problem at all. He handed over all the relevant material in his possession for me to read at leisure at my motel, rather than being under pressure with restricted time at the bar table. Importantly, these notes included the full transcripts of the interview with Mrs Dawson’s children. There was nothing ingenuous about this course of action by Sergeant Brown, it was simply basic fairness on his part. Today, defence lawyers and their clients have a right to view such material, but in the 1970s that kind of cooperation was rare. It was refreshing to meet a detective who possessed a strong sense of justice and duty to the community. Having all the statements and notes, I didn’t know what I was looking for, or if there was anything to find. At best, I thought, I’d have a full appreciation of the police investigation. Despite the apparent strength of the Crown case against Mrs Dawson, I noticed a potential defect which, if established, would derail the whole police case. It was this: When Detective Sergeant Hole of Tamworth interviewed Mrs Dawson he told her her seven-year-old daughter had witnessed the shooting. He told her Mary had actually seen her shoot her de facto husband dead. That was untrue, and untrue to the officer’s knowledge. The shooting took place close to midnight when the children were in bed, it being such a late hour. But that was beside the point. The key problem was Mary had never said, ‘I saw Mummy shoot Daddy’, she had simply said something like ‘Mummy shot Daddy’, and contradicted herself the more she was questioned. The notes also revealed young Tommy had been telling friends ‘Mummy shot Daddy.’ Again, he never stated he had seen it happen. Section 410 of the Crimes Act was not some obscure archaic piece of legislation. It was designed to protect an accused from bashing or lies or both. It was crucial to Mrs Dawson’s defence. The section was in plain English and meant what it said. (1) No confession, admission, or statement shall be received in evidence against an accused person if it has been induced (a) by any untrue representation made to him by the prosecutor or some other person in authority; or (b) by any threat or promise, held out to him by the prosecutor, or some person in authority. (2) Every confession, admission, or statement made after any such representation or threat or promise shall be deemed to have been induced thereby, unless the contrary be shown. This enactment in the Crimes Act was not a bold experiment by the New South Wales Parliament. In fact, it followed, but limited, the common law on rules of the admissibility of confessions. In short, Section 410 of the New South Wales Crimes Act required evidence to be excluded from a trial if it is gained by an ‘untrue representation’. Mrs Dawson’s statement was gained by an untrue representation: if she had not been told her children had actually seen the shooting, she may not have confessed to the killing. The police had, with deception, overstated their case. As I prepared for the committal hearing it became clear to me that, if the confession stood, Mrs Dawson was in deep trouble. She faced the real prospect of spending many, many years, if not the rest of her life, in gaol and having her children placed in state care, perhaps never to see them again. Mrs Dawson was adamant the statement was not a true account of what really happened nor of the background to the incident. She also made no complaint of being illtreated or threatened while making the statement. At the committal proceedings, the fact young Mary had told police, ‘Mummy shot Daddy’, and not that she saw the event, emerged during my cross-examination of police. My exploratory tactic in eliciting this evidence was extremely risky, but there was no jury. These were committal proceedings where the objective was to test the strength of the prosecution case and lay the groundwork for the trial. Attacking the interrogation was dangerous territory. It had the potential, ultimately, to free my client, but at this stage extreme care was needed. Advance notice to the police of my discovery and its drastic consequences could see a ‘repair job’ of a dishonest kind being attempted. The evidence given by Mrs Kennedy was also questionable in its timing. She had not approached police with her information until well after Mrs Dawson had been arrested and the news hit the headlines. The fact Mrs Kennedy, for no apparent reason, had suppressed her information told against her credibility, and I made much of that in crossexamination before the magistrate. Not to mention her husband contradicting what Mrs Dawson had said on the night of the shooting. Mrs Dawson was a person of good character. She had never had any prior dealings with the police, or even seen the inside a prison. She was now in desperate straits. As soon as she was charged with Lance Dawson’s murder, she was refused bail. She ceased being a mother and become a prisoner. Why was bail so abruptly refused? Where could she flee? Where could she hide if she ran away? In the early days of the committal, Mrs Dawson was brought, handcuffed, to court from the police cells in the back of a caged truck known as the paddy wagon. Eventually, Mr McMahon bowed to my entreaties and granted conditional bail. Mrs Dawson faithfully observed all the conditions imposed upon her. On release, she took up residence in a local caravan park. It was all she could afford. But she preferred that simple life to the custody to which she did not want to return. My primary aim during the committal was to unearth evidence to prove senior police had bungled Mrs Dawson’s interrogation by deceiving her with false information. It was, however, not the responsibility of the magistrate to rule on the admissibility of the confession, which was left to be decided at trial. If the three-page confession were admitted, Mrs Dawson’s prospects, to put it mildly, were bleak. If not, she had a real chance, if not of total freedom, then perhaps of a merciful reduction to being found guilty of manslaughter. My role in these committal proceedings had proved significant, but it was now concluded. The real action would be the trial.

* * * In August 1973, the Supreme Court paid its annual visit to Tamworth, Australia’s country music capital. Justice Simon Isaacs, resplendent in his regal scarlet robes, was presiding. He had been a criminal law specialist while at the Bar. The Crown Prosecutor was the New South Wales Deputy Senior Crown Prosecutor, Vincent ‘Vin’ Wallace, QC rank. He had then been a barrister for almost three decades. He was experienced, rugged and uncompromising, but highly respected and admired. Mrs Dawson was now capably represented by John Shields who, at that time, was not yet a QC. Acting as a Public Defender for two years, he had been the leader of the fifth floor of Chalfont Chambers. He was not short of experience,

having been heavily in demand as a solicitor advocate all over western New South Wales, except Broken Hill, which, particularly in those days, was a separate kingdom ruled by the Barrier Industrial Council (BIC). Mr Shields was confident the material unearthed by me before the magistrate was good enough to exclude the signed confession altogether. He warned Vin Wallace so, and asked him not to tell the jury about it in his opening address. The accused, Mrs Dawson, was arraigned and, in a soft voice, pleaded not guilty to the charge of murder. Despite having given the confession, Mrs Dawson, understandably, refused to plead guilty. There was no benefit to her in that course of action. Murder carried a mandatory life sentence. Mrs Dawson was a woman who had survived a turbulent domestic relationship; she was tough and determined to fight right to the very end. Standing in the dock, she was a tiny, solitary figure surrounded by a sea of blue uniforms. At the invitation of the judge, Mr Wallace QC outlined the Crown case to the jury. Wallace dismissed Shields’ warning and opened it high, wide and handsome: Mrs Dawson had shot her de facto husband in the back of the head and had confessed to the murder and that was the end of the matter. Plainly, Mr Wallace was confident of the admissibility of the confession. The opening address was a typical performance from Vin Wallace QC. Forceful and confident, yet simple. Wallace appealed to juries. They liked his style. The seventies were no different from any other era; then, as always, the top half-dozen Crown Prosecutors were formidable masters of their art. John Shields challenged the admissibility of the confession on the basis Mrs Dawson had been misled by the untrue representation her daughter had actually witnessed the shooting. To deal with Shields’ objection to the confession, the experienced Justice Simon Isaacs asked the jury to leave the courtroom. Then followed a strict prescribed formula; the judge heard the police evidence in the absence of the jury and read the confession himself. Under cross-examination, Mr Shields painstakingly established the untrue representation. Despite Detective Sergeant Hole telling Mrs Dawson it was a fact, neither child had witnessed the shooting or saw her—‘Mummy’—fire the fatal shot. This was forbidden trickery by Detective Sergeant Hole, which was specifically outlawed by Parliament in Section 410 of the Crimes Act. Justice Isaacs was plainly reluctant to reject Mrs Dawson’s police interview, but finally relented and did so. Having ruled the confession out, the judge was faced with an insoluble problem: the jury had heard from the prosecutor there had been a confession, but now Mr Wallace wouldn’t be allowed to call that evidence. At every jury trial, after the jury is empanelled, the Crown Prosecutor makes an opening address. That is done to outline the evidence that will be called against the accused. If there is doubt about the admissibility of any of the evidence, as there was here due to what I had uncovered before the magistrate, the wise, indeed proper, course is not to tell the jury about it. Mr Wallace elected to do so. Justice Isaacs had little choice but to discharge the jury without verdict. He conceded that, no matter how emphatic they were, no directions, even by this particularly eloquent judge, could undo the damage. In other words, this Tamworth jury, although themselves completely devoid of blame, could no longer give Mrs Dawson her right to a fair trial. When the judge discharged the jury, he gave little indication of why he did so. The reason for his reticence was that the evidence, which the judge had heard in the absence of the jury, was not and could not be reported in the press because of the risk of prejudicing a retrial. Such evidence has the quaint Norman French description voir dire meaning ‘speak the truth’. Mrs Dawson had survived the first battle, but she was far from home free. Justice Isaacs remanded Mrs Dawson for a retrial, reduced her bail and deleted the reporting conditions. The tense atmosphere eased a fraction.

* * * Before any of this happened, there was a short adjournment sought by both counsel. Speculation was rife. It was obvious Vin Wallace QC could see the writing on the wall, and foresaw the possibility of an outright acquittal down the track. Speculation began that perhaps he would offer to accept a plea of guilty to manslaughter in full discharge of the murder indictment. This would remove the dreaded spectre of a mandatory life sentence, even for a young mother with no criminal record. Right at the end of the transcript of the proceedings comes an intriguing episode. It is recorded at page 166, when the Crown foreshadows the inevitable application to discharge the jury without verdict. Justice Isaacs indicated his intention to make the formal order for a retrial on ‘some other date and to be fixed at such place as the Attorney-General may appoint’. Mr Wallace QC responds, ‘It is only in respect of that latter situation that it might be of some advantage if we could have a few minutes.’ Mr Shields’ reply is equally as intriguing and, for him, laconic: ‘Before I indicate my attitude I would want some express instructions from my client and I would like the opportunity of speaking to her in any case.’ Does the judge have a clue? The official record continues: His Honour: Yes. Is there some place here where you can speak to her privately? Mr Shields: Yes Your Honour. (Short adjournment.) What, at that stage, other than a plea-bargain offer, would require ‘express instructions’ and that the judge be so anxious to ensure ‘privacy’ for it? When the court resumed, there is not a mention of what transpired during the break and the private conversation. Nothing. The judge takes the initiative and, with a leading question, simply obtains Mr Shields’ support for the jury to be discharged. Why had the jury not been discharged earlier, before that adjournment? Mrs Dawson was formally in that jury’s charge. Had a plea bargain been reached, Mrs Dawson would have been rearraigned, affirmed her plea of not guilty to murder, but then pleaded guilty to manslaughter. When the Crown accepted that plea, the judge would then have formally obtained the verdict from the jury. After which, the judge alone would have proceeded to the task of sentencing for manslaughter. It is important to remember murder then carried but one penalty: life. Allowing time for the defence to consider accepting the plea bargain could have been the only purpose of that short adjournment, so discreetly arranged. Before the court adjourned, at the request of Mr Wallace QC, the judge cleared Detective Sergeant Hole of any mala fides, that is, ‘bad faith’. To me, that was a generous finding.

* * *

The appointed venue for the retrial of Mrs Dawson in November 1973 was the university city of Armidale in the heart of New England. The cast was the same except for the judge. The new judge was Justice Robert Lindsay Taylor. Feared by the bad, but loved by the good, or so they said. Suddenly, the word no one dared mention aloud at Tam-worth was all the rage: manslaughter. Mrs Dawson had survived the first trial on a technicality, but she still faced a life sentence if found guilty of murder at the second. The situation had changed. The Crown was openly prepared to accept a plea of guilty to manslaughter. If Mrs Dawson did so, that would mean a minimum prison term of around three to five years, perhaps much longer. This seemed far better than risking the horror of fifteen years or more if she were found guilty of murder. But, thank goodness, the decision was never mine. It now rested alone with Mrs Dawson herself, advised by John Shields, her Public Defender. Mr Wallace made his proposal and what then transpired in discussions between Mrs Dawson and her lawyers remains privileged. Suffice to say, there was never any plea of guilty to anything, and the trial proceeded. Mrs Dawson’s resolute refusal to even contemplate pleading guilty to the lesser charge of manslaughter was, with all due respect to the lady, illogical. She was not well educated and had no prior experience with criminal law. Defence counsel’s personal views as to the merits of the client’s case are never disclosed; the client’s instructions, or account, are the yardstick. Mr Shields had to ensure Mrs Dawson did not allow her fear of gaol, which she had so recently tasted, to lead her to gamble her life away by not facing brutal inescapable facts. Mr Shields had done his duty. As was her right, Mrs Dawson took the gamble. That was indeed a brave decision. Its wisdom or recklessness would be known at the end of the trial. It was her decision but, if I had still been involved, I know what my emphatic advice would have been. Counsel are always bound by the strictest of ethical rules in the plea-bargaining phase. Mr Wallace, a high public official, risked public criticism ‘for letting someone [Mrs Dawson] get away with murder’. The community might be better served ensuring a guilty woman went to gaol for some unknown and unspecified period of years than walk free, as was a real possibility. It was a delicate balancing act with practicality, duty and public interest intertwined. It must be made clear, there is nothing dubious or improper about so-called plea bargaining. The Tamworth trial had abruptly concluded without verdict and the Crown lost its prize exhibit, the signed confession, but there was a chance the next judge would take a different view to Justice Isaacs. A chance, but not a strong one. Like it or not, Justice Isaacs’s decision was correct in law as it then stood. That was soon amply demonstrated when Justice Taylor reconsidered the issue at Armidale. Noted for his abrasive style, Justice Taylor dealt with the bid to exclude the confession bluntly and unambiguously. To John Shields, it was along the lines of, ‘Why should I merely follow what another judge has done? I am the trial judge now. It is my decision.’ Equally bluntly, Shields replied, ‘Well, it was and is the correct and only decision open.’ The Crown conceded as much at Tamworth. Shields was implying, unsubtly, that any different decision would be a gilt-edged invitation to appeal. Such an appeal would be guaranteed success, he further implied, as sure as one can ever be with that august tribunal. The tender of the confession was rejected a second time. A different New England city, a different judge, an identical ruling. But the Armidale trial was far from over, although the Crown was weakened. In reality, they never had the two little children as potential witnesses. Perhaps decisively, what would have been the prize exhibit, the three-page signed confession, was out. A heavy but not fatal blow. It is always helpful for the jury to warm to the accused, but Mrs Dawson’s serious sexual indiscretion would have heavily told against her. The evidence of the sex in the car would have been highly prejudicial to Mrs Dawson in the eyes of the jury, but the provocation of her infidelity would have been more relevant if Mr Dawson had lost control and harmed his de facto—or if it drove him to suicide, but neither side suggested it did. If the Crown had thought Mrs Dawson’s love, if it were that, for Mr McInnes provided a motive to kill Lance Dawson, it didn’t say so. If it had tried, such a move would have been dismissed out of hand. It was a shabby episode, but not a factor in the ensuing tragedy. The Crown still relied upon an admission by Mrs Dawson that, on a prior occasion, she had tried to shoot Lance Dawson, but missed. In that context, there was the bullet hole in the wall to prove it. The Crown also challenged Mrs Dawson’s denial she did not know how to use a gun by the fact she had once been out rabbit shooting. This was a murder trial, not a neighbourhood dispute, and these were all items building proof of guilt. It was not, by any means, a weak Crown case. Mrs Dawson made a moving statement to the jury when pleading her innocence. Midway through the statement she collapsed prostrate on the floor of the dock. This was no gesture seeking to gain the jury’s sympathy—Mr Shields moved to help her and noticed her eyes rolling. Mrs Dawson recovered and after a glass of water, continued her statement. It was the first time in her life Mrs Dawson had spoken in public. To make her statement she had stood in the dock, flanked by two uniformed police officers, and faced the jury in the large Armidale courtroom. The Armidale Express described her statement as an ‘impassioned plea of innocence’. In her own words, Colleen Dawson said, in part: I was standing beside the car and Lance came up and grabbed me by the hair, pulled me down and dragged me on the ground. He then pulled me up by the hair and kicked me and told me to get home. I went home and he walked into the kitchen and walked around the table, punched me on the back of the neck and then he walked to the fridge, poured out half a glass of sherry and threw it in my face. He was swearing at me while he was doing this and then he walked back to the fridge and poured out a glass for himself. He sat down on the cupboard and then he was trying to shut the fridge door—banging it which had to be lifted to be shut and he was swearing at the same time. With the noise of this he had woken the kiddies up. They came into the kitchen screaming and he said, ‘I am going to kill you and the bloody kids,’ and as he said that the kiddies ran over to me and grabbed me. I turned around to look at them and then the gun went off. I never touched the trigger and he had the gun. I had never used—handled a gun in my life. Mr Shield asked the accused, ‘Do you want to say something about a previous incident, Mrs Dawson?’ ‘The incident of the hole in the kitchen wall? That occurred about three and a half months ago. He came home. He was drunk. He got the gun and he was going to shoot the kids and I struggled with him and the gun went off.’ Mr Shields had broken no rules prompting his client. The law permitted this provided counsel did not whisper but spoke in a voice all could hear. Today, the Mrs Dawsons of the world no longer have the right to tell their side of the story to the jury from the dock. The atmosphere of prejudice is bad enough where, as here, the accused sits in the dock, flanked by uniformed guards. Today, an accused person, if they wish to speak at all, must go into the witness box or remain mute. The right to make a statement from the dock was abolished in 1995. It was a retrograde step. If she had gone into the witness box at Armidale, Mrs Dawson would have faced Vin Wallace QC, the Deputy Senior Prosecutor. As a cross-examiner he was fearless and fearsome and, above all, firm.

Mrs Dawson had crumbled almost immediately when interrogated by the police in Texas. Some of those answers, she claimed, were factually wrong. How would she have coped in the huge Armidale courtroom surrounded by police, lawyers and a public gallery, and the robed judge and barristers with their wigs and gowns? Her ordeal in the witness box would have gone on for hours, as she was challenged line by line through her testimony. This is unfair. A Crown Prosecutor with a powerful intellect and a lifetime in the law, always on the side of the prosecution, never the defence, against a young, poorly educated, unemployed, inarticulate and unsophisticated country woman who, as she told the jury, had never been in a courtroom before. No, not fair.

* * * The evidence had concluded and now it was John Shields’ time to make his final address to the jury. Whatever his personal view, John Shields gave it his all. On Mrs Dawson’s instructions, his mission was not a compromise reduction to manslaughter but to convince the jury to an outright acquittal. He earnestly pursued his client’s unrealistic ambition and instructions. In the two trials, Mr Shields had achieved a great deal for Mrs Dawson. Two Supreme Court judges had been forced to rule out her confession. One suspects, as a realist, a verdict of manslaughter remained her best hope. The elephant in the room, which was the whole cause of the domestic argument, was escalated into tragedy. Was Mrs Dawson’s act of infidelity on the night important? It had no relevance to whether the Crown had proved the elements of murder against Mrs Dawson. Unfaithfulness and the provocation it caused would have been relevant had Lance Dawson shot dead his de facto. But human frailty had resulted in the reverse: Mr Dawson’s violent end. Sexual infidelity might have provoked violence and scuffle, but it can never justify it. Likewise, back at the homestead, there was no question of self-defence or retaliation by Mrs Dawson. She did not deny being unfaithful, she simply denied firing the fatal and only shot. The sexual activity with Mr McInnes in his car had no bearing upon her legal liability for her de facto husband’s death, as distinct from her perceived moral frailty. Justice Taylor was presiding over a court of law, not of morals, but that could not and would not prevent the jury from judging Mrs Dawson adversely for her indiscretion. This is a point which defence barristers find themselves having to emphasise again and again to juries. Very much in her favour was the undisputed, independent evidence that, at all times until his death, Lance Dawson was holding the rifle. Although a victim of domestic violence, she loved him. In his address, Mr Shields described Mr Dawson as ‘a likely street angel and house devil’. Mrs Dawson’s problems were not over yet. Even without the confession, there was still the problem of Mr Dawson being shot in the back of the head. John Shields’ task was to try to convince the jury there was not enough evidence to convict Mrs Dawson of murder. The discredited suicide theory was desperately revived. The Crown case was based on the argument that Lance Dawson could not have shot himself in the back of the head. It seemed commonsense. Then a decisive and stunningly dramatic incident occurred. During his final address, Vin Wallace QC attempted to show the jury it was not possible for a man to shoot himself from behind. In doing so, he placed his thumb on the trigger and his arms behind his back, with the empty gun pointing at the back of his head. The court became absolutely hushed. Something had gone wrong. It became apparent Vin Wallace could, in fact, hold the weapon in such a way as to be able to shoot himself in the back of the head. He had obviously not rehearsed the move. The jury plainly saw he was able to hold the gun in position and fire it at the back of his head. It was a blow for the Crown, and undermined the police case. It was a stunning, memorable moment. Thursday, 15 November 1973, was the big day. Justice RL Taylor began his summing up at 9.30 am and had concluded it by 10.45 am. By today’s standards, that was brief. Not noted for summings up which favoured the accused, the judge told the jury, as he was bound to do by law, Mrs Dawson’s good character must be considered, not only on punishment but on the very question of her guilt or otherwise. The jury was back with their verdict straight after lunch at 2.05 pm, a total retirement of three hours and twenty minutes. For a murder trial, the jury’s retirement was a brief one, including as it did the lunch break. The verdict? Not guilty. Hearing the verdict, Mrs Dawson collapsed again in the dock. It was an extraordinary result. When the police charge a person with murder they usually have a strong case and acquittals are rare. Five months earlier, Mrs Dawson had confessed to the murder and it seemed she would spend much of the rest of her life in prison. For her to walk free was almost unbelievable. Once she left the court that day, neither John Shields nor I ever saw her again. She was shaken by the verdict, but understood just how fortunate she was. In my entire career at the Bar I only won three outright acquittals of murder. John Shields was bolder than me and managed to win six. Barristers never win cases, it’s the evidence. All lawyers agree on this. Although occasionally, they can lose them. Having said that, against all those formidable odds, Mrs Dawson’s walk into the Armidale summer sunshine was a magnificent achievement for John Shields.

* * * For me the real hero in this case was not any lawyer, but the local police officer, Detective Sergeant Alan Brown. His boss, Detective Sergeant RG Hole from Tamworth had, to be charitable, blundered by misleading Mrs Dawson and creating the valid argument that the confession had been gained by an untrue representation. Detective Sergeant Brown’s honesty and frankness led me straight to his official notes, which were truthful. This in turn armed trial defence counsel, John Shields, with cogent material that he so skilfully used to have the confession excluded. Detective Sergeant Brown’s honesty was the ultimate reason Mrs Dawson went free. A more cynical and wily police officer could have simply not revealed Mrs Dawson had been told her children had witnessed the shooting when he knew they had not. Loyalty would have bought his grudging silence. It was Detective Brown’s integrity and competence which stood him apart from so many other police from that era. I never found out if his commitment to telling the truth had a negative impact on his career. I hope not. His motive, throughout the whole process, was simply fairness and observing the law. It was not my habit then, or later, to go around complimenting police—they are quite capable of looking after themselves. Only once did I formally commend a policeman. I was a judge then and his name was Detective Sergeant Nick Kaldas. I am more than pleased to see he has risen through the ranks to beome deputy commissoner. At the time when he was before me, Mr Kaldas exuded fairness and efficiency, as well as a high level of dedication as a detective. Plainly, those qualities have not diminished with the passage of time. In 2016 Deputy Commissoner Kaldas resigned to accept a senior law enforcement role with the United Nations at The Hague. In my opinion, it was a loss to the people of New South Wales.

CHAPTER

4 Hoodwinked—The Blind Prison Escapee

Over the years miscarriages of justice have inspired movies, books and media attention. But Carl Synnerdahl was not an innocent person betrayed by the criminal justice system. And little did I think my client would inspire a book and movie about how he hoodwinked the police, the courts, the prison authorities and me.

* * * Carl Synnerdahl was a professional criminal. He was a very active criminal. He was a ‘heavy’. His lengthy criminal record chronicled many occasions when his planning of crimes had failed. A stretch in prison, therefore, was just looked upon as being an occupational hazard. When I was briefed to appear for him, he faced a long sentence for armed robbery. With his record, even allowing the discount for a guilty plea, he was facing a sentence of the order of ten to fourteen years. He was looking at serving more than half of this term before he would even be eligible for parole. In any case, with his record, he was far from a strong candidate for parole being granted. Unknown to me, however, Synnerdahl had hit upon an audacious scheme to have his sentence drastically reduced: he feigned blindness. Police and prison authorities were highly sceptical of this claim and set out to debunk it. Officers would sneak up behind Synnerdahl in the court cells and ignite a cigarette lighter millimetres from his eyes. He never flinched. Others would create an obstacle course for him to manoeuvre. Failure to do so would result in falling face first. What happened? Carl Synnerdahl fell face first. Exhaustive tests were carried out by a battery of ophthalmologists. Intense pinpricks of light were shone in his eyes and, under magnification, the doctors looked for any reaction in the pupil or iris. There was none, whatever the intensity of the light. Synnerdahl passed—or perhaps one should more accurately say failed—each time with flying colours. The eye specialists certified his loss of vision as genuine. Carl Synnerdahl was a pathetic sight as he was helped into court. Because of his disability, he was unable to climb the steep stairs leading to the trapdoor admitting him to the dock in No. 3 Court at Darlinghurst. In my submission on sentencing, I sought extreme leniency because of Synnerdahl’s blindness. The judge could only act upon the expert evidence, which was unanimous: he was blind. The sentencing judge, Judge David Hicks, was a tall, impressive, patrician judge, and although he would have denied it, he had a heart of gold. His reservoir of compassion could more readily be tapped if the man in the dock pleaded guilty and showed contrition. On the other hand, brazening it out and attacking the police were not features that the judge rewarded with leniency. Sentencing Synnerdahl to six years without a minimum term was severe, but merciful. Judge Hicks correctly mitigated the sentence because of the unchallenged evidence before him of Synnerdahl’s blindness. Judge Hicks had not been hoodwinked.

* * * Not long after arriving at Cessnock Correctional Centre, in the picturesque Hunter region north of Sydney, Carl Synnerdahl escaped custody. He wore dark glasses and used a white cane, and walked out the front gate in the guise of attending church counselling. Making his way into town, Synnerdahl hitchhiked his way to Sydney. The escape from gaol of a blind man attracted wide media attention. It occupied the whole front page of the afternoon Daily Mirror of Wednesday, 22 June 1977. The headline read: EXCLUSIVE BLIND MAN ON THE RUN TALKS TO THE MIRROR ‘I CONNED COPS’ TRANCE FOOLS EYE DOCTORS While on the run, Synnerdahl granted the exclusive front-page interview to journalist Steve Pivetta. The pair met at Redfern railway station, an inner-city Sydney suburb. Synnerdahl was well dressed and wearing sunglasses. He told of an Asian doctor who had taught him how to temporarily induce blindness by going into a trance. He claimed this enabled him to deceive even specialist eye surgeons. This deception could only be maintained for short periods, but the feigned affliction had enabled him to achieve his wish of detention in the minimum security part of Cessnock gaol, where he found it easy to escape. Synnerdahl was only on the run for a short period before being rearrested.

* * * Inevitably, the day of reckoning arrived for Synnerdahl to answer for the escape and the multitude of serious offences committed while on the run. Although there was no escape this time, it was not his lawyer’s job to hold Synnerdahl to account—the police and courts had that aspect well and truly covered. This was why the decision to brief the tall, scholarly, Public Defender Ken Shadbolt was such a sound one. Shad-bolt had those precious assets of insight and persuasive realism judges trusted. Even so, Shadbolt’s skill could not avoid his client being required to serve the balance of the sentences from which he escaped. In addition, by law, the sentence for escape must be a cumulative one. Shadbolt’s low-key approach was to seek total sentences which would realistically leave open prospects for rehabilitation. He achieved that result: the sentence was three additional years behind bars. Carl Synnerdahl’s good fortune had not deserted him. In 1981, Synnerdahl published his book on the elaborate ruse entitled Hoodwinked. To protect us, or maybe not to

embarrass us, he changed the names of the innocent. By coincidence, years later I encountered Carl Synnerdahl in the visiting area of the gaol and chided him for deleting ‘Bill Hosking’ from the manuscript of his book and the two-hour movie blockbuster it spawned. My role was replaced by a character with the fictional name of ‘Patrick Burroughs’. In the book ‘Burroughs’ is described as one of the most able and respected lawyers in Australia. The depiction of the fictional ‘Patrick Burroughs’ in the book was so favourable, however, it caused many to say this proved that indeed the book was a work of fiction. Carl Synnerdahl was quite unapologetic. He brushed aside my attempt at humour, saying he had to look after his public image. He couldn’t have people knowing he relied on a Public Defender to represent him in court. If I may, the book lacked the literary polish of Charles Dickens, and if there was any theme of remorse, it must have been edited out. Likewise, the movie narrative was bland and criminal. It featured a cross-section of well-known Australian actors, though it did not attract any industry awards. Any shortcomings, however, were those of the plot and not the cast. The conservative broadsheet, the Sydney Morning Herald, published a full-page interview with Carl Synnerdahl on Saturday, 3 October 1981. The interview was a promotion for the book and film, with journalist Sally McInerney speaking with Synnerdahl from Parramatta Gaol. The headline that Saturday read, BY DAY, BANK ROBBER CARL FAKED BLINDNESS, BY NIGHT, HE WROTE HIS STORY.

CHAPTER

5 Who Shot Harold Price?

The Thursday before Easter, 2 April 1980, seemed like just another autumn afternoon on the Price family’s farm, a 20hectare property on the outskirts of Peak Hill, in the central west of New South Wales. Peak Hill is a wheat and sheep town with a long history of gold mining. With fewer than one thousand local residents, it would be wrong to call it a ghost town, but the faded shop fronts and long verandahs suggest a grander past, when people hastened west from Sydney to join the gold rush. Today, the highway joins the main street and big semi-trailers roar through the little town without stopping. Harold and Lorraine Price lived and worked on the property, along with their three young children, all boys under ten years of age, the youngest just over two. The family was well known among the local community. Mr Price was from a respected local family, while Mrs Price, originally from the city, was the typical lady next door, helping in the school tuckshop and teaching Sunday school. Harold Price was a busy man juggling a second job on top of his farm work to make ends meet: he drove the forty kilometres to a bakery in the town of Parkes to work the night shift. It was tiring work and he often took a nap during the day. On that Thursday, he lay down on the double bed he shared with his wife. Out the back of the farmhouse, hawks swooped over the aviary he had built, cutting black spirals in the blue western sky. It was a large aviary with more than two hundred parrots, squawking in protest at the attack. He dozed off to sleep with the calls of the birds drifting through the bedroom window. When the sound of a gunshot echoed across the land, no one thought much of it. Mr Price kept a rifle in the house to scare off the hawks and would often run out of the house and fire warning shots into the air. Lorraine May Price later told the police she was knitting a pullover for her husband in a room at the back of the house when she heard the gunshot. She walked around to the bedroom and discovered him lying in bed with his face covered in blood. It was a neat shot, right through the middle of the forehead, just above the eyes. Mrs Price called the local doctor and tried to help her husband, who lay bleeding on the bed sheets. The local policeman, Sergeant Moore, was having a beer at the bowling club with some friends on his day off when he was called to the scene. The local doctor was also on his day off, relaxing at his house behind the hospital. When the ambulance arrived, Mrs Price was treated for shock. She was told her husband had suffered a surface graze and that there was ‘nothing to worry about’, and taken to the local hospital to be given some sedatives. But her husband never regained consciousness. After a few hours, Harold Price was dead. Local gossip soon spread that Mr Price had been killed by a stray bullet from a random shooter which bounced off a window frame and struck him right between the eyes. He was terribly unlucky. The other theory going around town was Mr Price had become depressed and shot himself in bed. Not an uncommon scenario in outback Australia. It was only after a post-mortem examination that the police decided this was a case of murder. Within the week, detectives from Parkes were called in to formally interview Mrs Price. She freely answered all of their questions and denied any involvement in her husband’s death. Lorraine May Price certainly didn’t fit the typical killer profile, but she was alone in the house at the time of the shooting and it wasn’t long before she became the only suspect. Police also found a spent .22 Winchester Super Speed cartridge in the kitchen bin. The cartridge matched the family’s Stirling rifle, which had been sent to ballistics to determine if it was the murder weapon. In the meantime, Mrs Price was charged with her husband’s murder. The Price household appeared an ordinary one. Mrs Price told the police ‘there was no one before Harold and there has been no one since’. She also said her husband was a hardworking man who ‘provided a lot for us’. So, Mr Price was a loving husband and father, and Lorraine Price a devoted wife and mother. Both were pillars of their community and church. But beneath the surface, all was not well. It was not a happy marriage at all. Mr Price had confided to their local Uniting Church minister, Reverend Henry Martin, that he was contemplating leaving home. Mrs Price had had a similar conversation with the minister. Unknown to Harold Price, town gossip linked his wife romantically with the same gentleman. This gave the police a motive. If Mrs Price had been in love with the minister, then she had shot her husband to clear the way for a new romantic life with Henry Martin. As Mrs Price awaited trial, things got even worse. The police ballistics expert’s opinion was the fatal shot was fired from Mr Price’s Sterling rifle. Unfortunately for Mrs Price, the ballistics expert said the shooter was standing one metre away from the victim when the fatal shot was fired. The ballistics expert, however, was unable to entirely rule out the possibility the fatal wound was self-administered, but he thought it unlikely. The forensic evidence also suggested the rifle was too far away from the head to be a suicide. In other words, somebody other than Harold Price had fired the weapon.

* * * The case against Mrs Price was wholly circumstantial. Her introduction to the legal system at the tiny Peak Hill Court House before district magistrate Mr Robert Stent was a gentle, almost reassuring one. She had been allowed out on bail and returned to her home, not far from the courthouse where the committal proceedings were heard. In those days, as now, bail is rare for someone charged with murder. The Peak Hill Court House consisted of an office, a courtroom, a verandah and the living quarters of the lock-up keeper and his family. I remember the tiny courtroom at Peak Hill precisely because it is so unmemorable. I was the acting clerk of petty sessions there in 1961. The courtroom is tiny and sparsely furnished. One time when the Dubbo magistrate, Jack Craddock, made his monthly visit to Peak Hill, the court office was closed and I recorded court proceedings on a noiseless—in name only—typewriter, which all but drowned out the spoken work with its clatter. There was a connecting door from the lock-up keeper’s quarters to the courtroom and, one day, court proceedings were interrupted when the toddler daughter of the lock-up keeper wandered through the door holding a teddy bear. The little girl was pursued by her mother, who scooped her up and retreated back through the connecting door. Proceedings continued as though nothing had happened.

The almost informal atmosphere of Mr Stent’s court was no preparation for Mrs Price’s coming ordeal. The proceedings were brief. The case, being wholly circumstantial, called for little cross-examination by her Sydney barrister, Mr William ‘Bill’ D Peoples, instructed by Parkes solicitor, Mr Chris Helby. Mrs Price was duly committed for trial in the Supreme Court at Dubbo, but the venue was eventually changed to Sydney’s historic old Banco Court in St James Road, across the road from Hyde Park and nearby St Mary’s Cathedral. The St James Road Court was rich in character and history and part of the old Supreme Court building designed by architect Francis Greenway. Greenway would not have been unfamiliar with court architecture: he owed his presence in the colony to a commuted death sentence passed at the Bristol Assizes, arriving at Sydney Cove in 1814. The St James Road courtroom is quite small. Lavishly restored in 1895, it was a replica, of all places, of St Stephen’s Court in Dublin. Its conservative opulence and splendour reflected the values of a bygone age. The former Chief Justice’s huge chambers had French windows which opened onto a tiny garden and lawn. In sharp contrast, Mrs Price’s holding cell, below street level and windowless, had a toilet but zero privacy. There were no facilities at all for a conference. This was not intentionally cruel; the cell, too, was a symbol of a bygone age. The trial judge was the dour Justice John O’Brien, Chief Judge of the Criminal Division of the Supreme Court. Representing Mrs Price was high-profile barrister Peter ‘Tex’ McInerney QC, a fearless advocate. During the trial, Mrs Price’s solicitor, Mr Helby, gave evidence. This was in support of the optimistic theory, consistent with Mrs Price’s innocence, that a stray bullet had come through the bedroom window and killed Mr Price. In such a circumstantial case where the accused says she is innocent, the exploration of all exculpatory theories does not depend upon the client’s instructions alone. Her case was simple: she did not do it and did not know how it happened. Thus, Mr Helby took it upon himself to try to prove the stray bullet theory. This involved the wire flyscreen from the Prices’ bedroom window, with what might appear to have been a bullet hole in it. Mr Helby’s wife travelled to Sydney from Peak Hill and produced the flyscreen as evidence. Even so, this theory did not explain how a spent cartridge was found in the kitchen bin. The ballistic and forensic evidence did not support the stray bullet theory either. The Crown’s suggestion that Mrs Price was having an affair with Reverend Martin was highly prejudicial. It was never overtly stated, but there was more than a strong hint by the prosecution that she and the Peak Hill minister were actually lovers. This was dangerous territory for the accused because it gave her a motive and made the shooting look like a cold, calculated murder. While there were no admissions to an affair by either party, and no evidence to support the rumour, any whiff of an affair could have an enormous impact on the jury and required very careful directions from Justice O’Brien to ignore such gossip when considering the facts of the case. The judge failed to make any such instruction. After one hour of deliberations, the jury found Mrs Price guilty of murder. She was given the mandatory sentence of life imprisonment. Mrs Price appealed to the Court of Criminal Appeal, and her Parkes solicitors retained the famous Chester Porter QC for her appeal. In front of Chief Justice Sir Laurence Street and Justices Jack Lee and Edwin ‘Ted’ Lusher, Mr Porter argued the suggestion of the affair by the Crown was, as expected, prejudicial to Mrs Price’s defence. Infidelity was implied but never directly alleged because it never happened. She denied it. So did the clergyman. And there was not a shred of evidence to support this scandalous rumour. Chester Porter’s arguments prevailed. The conviction was quashed. Chief Justice Street held, ‘The prospect of prejudice is of such a high degree that I have reluctantly reached the conclusion that the verdict should not be allowed to stand …’ Sir Laurence Street also noted, ‘There was a volume of medical evidence indicating the unlikelihood, indeed the impossibility, of the deceased having inflicted this wound on himself.’ A new trial was ordered, again in Sydney, and Mrs Price’s hopes were alive again, but barely. She was freed from prison on bail, having served just a few months of a life sentence, to await retrial for her husband’s murder.

* * * Three years after her husband’s death, Lorraine Price, the widow and mother of three from Peak Hill, had undergone committal proceedings in the Local Court, a trial by jury in the Supreme Court in Sydney, and a successful appeal to the Court of Criminal Appeal. As a result, the stray bullet theory was abandoned by the defence, and the clergyman– Sunday school teacher lovers’ scenario was abandoned by the Crown. Lorraine Price was back exactly where she started when she was first arrested, but with a big difference. For all the proceedings so far she had the benefit of being represented by top-ranking silks, junior counsel and solicitor. She had used all of her late mother’s inheritance and sold the family home to finance her desperate bid for survival and freedom. But now the money was all gone. She was broke. She applied for, and was granted, legal aid. Daryl Melham, a rising legal star in the Public Solicitor’s Office, was assigned her case. In that respect, she was fortunate. Years later, Melham, by then a Public Defender but still a young man, was elected to federal parliament for the seat of Banks. Melham was, in my opinion, one of the finest legal aid lawyers of his time. It was he who briefed me on the case. I first met Mrs Price in Selborne Chambers. During our many conferences she was always calm, polite and dignified. When women are accused of murder they face a prejudice of sorts. If a woman is hysterical and cries a lot, people are unsympathetic and suspect she is putting on an act. On the other hand, when a woman like Mrs Price is accused of being too calm and dignified people say, ‘Oh, she’s a cold one.’ Judging human reaction with a presumption of guilt and not innocence is wrong and risks doing an injustice arising from human frailty. Mrs Price was always courteous to Daryl Melham and me, and was, in her own lonely way, trying to survive the intense pressures of the life sentence that was literally hanging over her head. Mrs Price’s instructions were simple: she had not shot her husband and didn’t know who had done it. That was our defence. It was not our responsibility to prove who had done it—that was a problem for the prosecution. Nothing new, really. The identical approach was taken in the first trial. The new trial judge was Justice Keppel Enderby, formerly federal Attorney-General in the Whitlam government during the early seventies. Enderby was a sound judge. He was well versed in the law and fair, yet decisive. If this second trial miscarried it would unlikely be a result of any error by the judge. The case remained a circumstantial one. At no stage had Mrs Price made any admissions of guilt. She stuck to her story and maintained, in a calm manner, that she didn’t know how her husband had been shot. Suicide was virtually excluded, and so was any suggestion Harold Price’s death was an accident. There remained the problem of how the spent shell found its way into the kitchen bin. If Mrs Price had moved the shell from the crime scene it was a foolish thing to do, but no more than that. It surely had no sinister overtones. The inference it would be incriminating if it were Mrs Price who had removed the spent cartridge and placed it in the kitchen bin is flawed and would prove nothing. In the drama of the moment people do strange and inexplicable things. Yet, that one piece of evidence hung over the entire trial and undermined our defence despite my strenuous efforts to the contrary. Effectively, the Crown case was, by a process of elimination, that it was Lorraine Price who had killed her husband.

The Reverend Martin was again called as a witness. We all sat waiting for a swashbuckling, handsome fellow to walk into the room. In our minds, he was a square-jawed heartthrob, a tall, dashing prince with movie-star looks. But when the bushy-haired Reverend Martin appeared in court, handsome was not a word that came to mind. Perhaps you could call him cuddly. He was the epitome of integrity. Reverend Martin told the court Mrs Price had confided in him she was unhappy and was considering suicide. Harold Price had also spoken with Reverend Martin about his marriage problems and said he was ready to ‘pack his bags’. It was clearly an unhappy marriage and both husband and wife wanted out. This worked against Mrs Price. The jury was presented with a picture of a woman who may have been clinically depressed and suicidal, and a husband who wanted to leave. This was not the locals’ perception of the family. The trial before Justice Enderby was impeccable and unhurried. The jury deliberated for more than twenty-four hours, giving us a faint hope of an acquittal. It was not to be. On 2 June 1983, the jury again found Lorraine Price guilty. But this was not the end of the matter.

* * * When Mrs Price was found guilty at her first trial the mandatory sentence of penal servitude for life was imposed. Before the retrial, amendments to the Crimes Act had given the trial judge, Justice Enderby, a limited discretion to impose a determinate sentence. That provided Mrs Price with real hope for a lesser sentence. Being new legislation there had not been time for precedents to be set, or sentencing patterns to emerge. Although disappointed Mrs Price had again been convicted, I believed this was a clear case where a sentence of much less than life was available and should be imposed. Accepting the jury’s verdict as we must, Daryl Melham and I decided to explore areas outside Mrs Price’s instructions in search of material which, to use the words of the new provision inserted in 1982, established whether her ‘culpability for the crime is significantly diminished by mitigating circumstances, whether disclosed by the evidence in the trial or otherwise’. Daryl Melham’s view, and mine, was that, in our experience, respectable wives don’t kill their husbands for no reason, unless driven by some underlying and overpowering psychiatric condition—as an example, mental cruelty. We were seeking some mitigating psychiatric explanation, if one existed, not on the question of guilt, but in mitigation of the life sentence she faced. I was hopeful I could convince Justice Enderby to reduce her sentence. Sometimes it seemed women received shorter sentences than men because they were victims of domestic violence. Sadly, in all respects in the domestic violence context, women are at a hopeless disadvantage. We enlisted the professional, and highly regarded, services of Dr Oscar Rivers Schmalzbach OBE. The doctor was the epitome of a forensic psychiatrist from central casting, as the Hollywood expression goes. He was a short, heavily accented, excitable and flamboyant man. His Macquarie Street rooms were untidy and eccentric. As a witness, he was volatile and voluble. But his eminence was undoubted. Moreover, for many years the Crown exclusively retained Dr Schmalzbach’s services in murder trials. His opinions were usually unfavourable to the accused. Abnormality of the mind, or a diagnosed mental illness, could mitigate penalty or replace punishment with treatment altogether. Dr Schmalzbach was ultraconservative with such diagnoses. One day, quite abruptly and without any explanation, his professional arrangement with the Crown ceased. His services were then immediately in much demand by defence lawyers. Dr Schmalzbach didn’t just interview Mrs Price, he did something unexpected and radical: the psychiatrist drove out to Mulawa Women’s Prison and took Mrs Price to a private hospital under guard. He then gave her sodium pentothal, which is widely known as a ‘truth drug’. It was invented in 1934, initially as a painkiller, but doctors, particularly psychiatrists, soon learned it relaxed people enough that they shed their inhibitions and talked. The drug could not be used during a criminal trial, but there was no law to prevent it being used in the context of sentencing. It had never happened before and hasn’t happened since. While under the drug, Mrs Price told Dr Schmalzbach her husband’s sexual demands on her were disturbing. That was an insight, but then Mrs Price made an extraordinary new claim. In all my many years as a barrister, and later as a judge, I had never encountered such a shocking development. Mrs Price told Dr Schmalzbach her youngest son, Trevor, aged two years and eleven months, accidentally shot his father. After recovering from the drug, Mrs Price told us she had been covering up for her two-year-old son because she didn’t want him to be accused of the murder. It was an amazing revelation and reopened the possibility she was innocent. Mrs Price said little Trevor had walked into the room with the rifle and accidentally shot his father in the head. That was possible, because Mr Price kept the family rifle in the home and not locked away in a shed. When I raised the matter of the truth drug revelation with Justice Enderby he was not impressed, and said Mrs Price had given too many different versions of events. I asked for a reduced sentence, but Justice Enderby decided it was a planned killing. He added there had been no expression of remorse and this was not available as a mitigating factor. The awful words ‘penal servitude for life’ were pronounced again and Mrs Price was again taken away to prison. While the guilty verdict was returned on 2 June 1983, Justice Enderby did not impose the life sentence until 4 October 1983.

* * * Lorraine May Price resumed, for the second time, her anonymous, lonely existence as a life-sentence prisoner. There remained the faintest glimmer of hope, however. She petitioned the governor, Sir James Rowland, seeking a judicial inquiry into ‘doubt about her guilt’, to quote the then Section 475 of the Crimes Act. A Section 475 inquiry mechanism dates back to before a Court of Criminal Appeal existed. The purpose of the section was to provide a qualified form of appeal. This was a rare procedure. Constitutionally, the governor, of course, acts on the advice of the State Attorney-General, then the Honourable Paul Landa. The Attorney-General agreed there was reason to examine the conviction and recommended the governor set up a high level judicial inquiry. It was an astonishing precedent, as the inquiry into the challenge to Mrs Price’s conviction was done before any appeal by her, as would be correct, to the Court of Criminal Appeal, or then by special leave to the High Court of Australia. Such appeals were never lodged by Mrs Price, because the trial judge had not made any errors. This fact is eloquent testimony to the propriety of the second trial before Justice Enderby. In announcing the setting up of the inquiry, Mr Landa said it was only the second time in the past thirty years such an inquiry had been held. Before the opening of the inquiry, I visited what used to be the Price house. The family renting it from the new owners kindly let Daryl Melham, James Glissan, my junior, and me in to inspect the house. It was just an ordinary, modestly furnished family home. For us, Mrs Price’s lawyers, it was a strangely moving experience. Harold and

Lorraine Price’s bedroom, where Harold had been shot, was a bedroom again. To borrow that old expression: ‘if only the walls could talk’. One thing was absolutely certain. It was a very great tragedy a decent young man had met his death. The inquiry opened on 15 May 1984. The Chief Judge at Common Law, Justice John Slattery, was appointed to hear it, and Michael Grove QC was briefed as senior counsel assisting the judge. His junior was Mr Bernard J Gross. The briefing of two such eminent counsel demonstrated the gravity with which Mrs Price’s petition was being viewed. Michael Grove was soon to become Justice Grove of the Supreme Court. I appeared with James Glissan, a fellow public defender, and we were, again, instructed by Daryl Melham. Tom Davidson QC, with Crown Prosecutor Geoff Henderson, were briefed for the Crown, and barrister Geoffrey Graham, later Judge Graham, was briefed to appear for the child, Trevor. Although Justice Slattery was courtly and urbane, he could be a nemesis for an accused. He was always calm and controlled. His obvious decency appealed to juries and his intellect made a threadbare defence a perilous port in a forensic storm indeed. He was now the third judge to hold Mrs Price’s fate in his hands—the sixth, if one includes the three judges who constituted the Court of Criminal Appeal bench. I was never comfortable with the new defence. I could not imagine convincing a judge, particularly one of Slattery’s enormous experience, that an almost three-year-old boy had carried a rifle into his father’s bedroom and managed to fire the fatal shot. It was possible, but it was a rifle, not a pistol, and just holding the weapon and firing it would not be easy for such a young child—the boy was just too little. Perhaps the story could be believed if he were a five-year-old. But Mrs Price stuck to her new story and I had to try to convince Justice Slattery her version of events could not be excluded beyond reasonable doubt. This was new territory. Dr Schmalzbach told Justice Slattery that Mrs Price finally broke down in a flood of tears after being given the drug and said the shot was fired by her youngest son. The psychiatrist admitted it was unclear whether patients told the truth when given the truth drug. He conceded, ‘We know there is not necessarily a truth behind the truth drug.’ He explained it makes a patient more communicative and helps recall suppressed events. He also told the judge it could be compared with alcohol intoxication, where people open up after a few drinks. Dr Schmalzbach had to concede it was possible for patients to lie after being given the drug. Now, according to Mrs Price at the inquiry, her husband had been sitting up in bed when Trevor had accidentally fired the rifle. She came into the bedroom to find her shocked son holding the gun. Once again, the police ballistics men were a problem. Justice Slattery refused my request for him and the whole inquiry to visit the scene at the Price family home at Peak Hill, as the defence team had done. As a compromise, a model of the bedroom was built so the judge could consider the important details about the distance and angle of the shot. The model was built in a small, carpeted, wood-panelled jury room in the Law Courts Building at Queens Square. The police used blue and white masking tape to set out a twodimensional model, marking the position of the bed and doorway. We all moved from the courtroom for a demonstration. Mrs Price stepped gingerly around the room and stood where she claimed to be when the shot was fired. She now told the judge she had been standing beside the bed and talking to her husband when young Trevor walked into the room with the rifle and shot him. She told the judge: ‘Everything happened so quickly.’ It was an awkward situation. Absent was the formality of a courtroom with bench, bar table and witness box. We all stood around and talked to each other. The atmosphere was very tense. At one stage, Mrs Price was standing next to the sombre judge. In relation to the possibility of the almost three-year-old Trevor doing the deed, I had asked the ballistics expert, Sergeant Bruce Gibson: ‘Would you agree with me that the rifle, used in this particular case, could readily be held up for a short period and fired by a person of the same age?’ He responded, ‘It is possible. Yes.’ Sergeant Gibson explained the shot had been fired about sixty centimetres from the victim’s forehead. But, when asked if the angle of the shot was consistent with Mrs Price’s claim her little boy was holding the rifle, he disagreed. Sergeant Gibson said, ‘I would expect the forehead of the deceased to have been at a greater angle from the horizontal.’ In other words, a small boy shooting upwards at his father sitting up in bed, would have produced a different angle of entry into Mr Price’s skull. It also did not help us when the prosecution brought their own psychiatrist before the court to tell the judge he no longer used sodium pentothal at all because, ‘I found that much of the information that I obtained as a result of narcoanalysis turned out to be fantasy’. Geoffrey Graham, representing young Trevor, told the judge there was evidence the child was not even at home at the time of the shooting and was, in fact, at the local post office. It was Harold Price’s sister, Enid, who stated Trevor was with her when the shot was fired. Like the ballistics evidence, this worked against us. Hope was fading fast. Mrs Price told Justice Slattery she had lied to police and lawyers and two previous juries to protect her young son. In court I asked her, ‘Why didn’t you reveal to the police at the time the real truth?’ She answered she was acting from a natural instinct to protect the child: ‘I never thought that I could be convicted for something that I had not done.’ Being forced to admit to lying was a devastating blow to her credibility. Justice Slattery allowed the prosecution to cross-examine the Price family’s two oldest boys and they were called as witnesses for the first time. Trevor was considered too young. I knew it would work against us and threatened to stay away from the court that day. The reason I gave was I did not believe young children should be made to give evidence. Justice Slattery was not impressed and said, ‘I don’t understand why you cannot be a fly on the wall … why you cannot just be present?’ He accused me of trying to boycott the inquiry. In the end, we turned up for the children’s testimony. I decided not to cross-examine the children. I knew I would look like a bully, beating up school-age kids. It would lead nowhere. Perhaps I am being oversensitive, but I found the headline in the Canberra Times describing my declining the judge’s invitation to cross-examine the two children as a threat to boycott a shade harsh. Mrs Price’s solicitor, Daryl Melham, barrister, James Glissan, and I did not make such a decision lightly. It would have been a curious tactic to boycott our client’s last chance of, again, having her life sentence quashed. The three of us were dedicated legal aid lawyers doing our absolute best for our client. The inquiry lasted thirteen days. The Crown summed up by describing Mrs Price as a ‘persistent and resourceful liar’. I argued, yes, she had lied and told various versions of events to protect her son but, ‘… keeping her in gaol because she was stupid is not justice’. So called ‘truth drugs’ had already been ruled out of court in Britain and lie detectors had been rejected from New South Wales courts. Again, I had a sinking feeling. The random shot theory, the suicide theory, and now the shooter being a two-year-old boy theory all seemed to fall flat. After the judicial inquiry was completed in October 1984, Justice Slattery submitted a 105-page report to the governor. It was then tabled in the New South Wales Parliament and Trevor’s identity was made public. Justice Slattery said he had no doubt about Mrs Price’s guilt, and did not believe the boy had accidentally shot his father: ‘There was an absence of evidence to support her claim that her son Trevor had killed his father.’ Justice Slattery also found Trevor’s two older brothers were ‘credible and reliable witnesses’. He concluded Mr Price was shot dead while

the boys were sent out on an errand to the local post office. Significantly, at the committal proceedings and in the first and second trials, the Crown did not even contemplate calling the boys. My decision, on instructions, not to cross-examine them was criticised by the judge in his report. It was a no-win situation. Mrs Price didn’t want to add to their ordeal. She didn’t even want to be present herself. Justice Slattery’s finding meant Mrs Price would continue to serve her life sentence at Mulawa Women’s Prison. Four years had passed since Harold Price was shot dead. Mrs Price’s house had been sold, she was now cut off from her family and had no future. The last time I saw Mrs Price was at Mulawa after the judicial inquiry. As usual, she was calm and unemotional, neat and tidy. In my experience, wives do not kill their husbands for no reason. Had she fired the fatal shot because of a mental condition, this had the potential to reduce her culpability from murder to manslaughter and be given a much lesser penalty. On Mrs Price’s instructions, the outcome for her was ‘murder or nothing’. Twice, a verdict of murder was the result. Mrs Price never hinted at any disaffection with her husband, indeed quite the contrary. I nonetheless believed she should be examined by a psychiatrist. It may have revealed a history of domestic violence, or unpleasant sexual practices, or some form of abnormality of mind. As Mrs Price still denied the homicide, several psychiatrists expressed the view that they could do nothing for her. To my lay mind, that seemed strange. Denial might itself be a symptom of a mental condition. Lorraine Price remains an enigma. Psychiatrists were unable to penetrate her mind when they tried. There was always another story. To reject or even give minimal weight to the drug-induced revelations of Mrs Price involves no criticism of Dr Schmalzbach’s professionalism or integrity. Nor does it necessarily involve a criticism of Mrs Price herself. She voluntarily submitted to the test. It involved the total invasion of her mind by the drug. There was never any independent support for her version. The decision by Justice Slattery to allow evidence of the truth drug revelation was unprecedented in Australian law, but it created no precedent. The inquiry was not a court. Although he was the Chief Judge of the Common Law Division of the Supreme Court, Justice Slattery was not sitting as a judge, but in the simple role of a Justice of the Peace. The rules of evidence did not apply, and none of the parties to the inquiry had any right of appeal. Such inquiries were extremely rare. In all, Mrs Price gave five versions of the tragedy. First to the local sergeant who came to the house, then the formal record of interview, her statements to the two juries and, finally, her evidence to the Slattery Inquiry. From all points of view this was a tragic case. A hardworking 37-year-old father of three children was killed in the prime of his life. The three children, all under ten years old, lost their father and as events unfolded, their mother as well. Effectively, Lorraine Price’s life was destroyed. The Price family lost a loved and loving member. The respected Reverend Henry Martin had his good name unjustly besmirched in a public way, but hopefully his vindication was accepted. Not even the prosecution ever suggested his conduct was anything other than exemplary. He remained highly regarded in the community. The small town of Peak Hill was bitterly divided over the case. Sadly, this cascading effect, like the ripples caused by a pebble thrown into a pond, arises in different ways in most murder cases. That is why murder is such a dreadful crime. More often than not, it is committed by ordinary people. Undoubtedly, Mrs Price only had herself to blame for a lot of her problems. Her failure to reveal the role of Trevor to the police, her lawyers and the two juries, left only the fact that she was alone in the house with her husband at the time of the fatal shot. There was only one shot fired and the empty cartridge case was found in the kitchen tidy. There was no plausible explanation of how it got there, but did there have to be? Mrs Price applied to have her life sentence converted into a fixed period. Hearing the application, Justice James Wood was decisive on both aspects. In September 1992, Justice Wood redetermined her life sentence. He set ten years. Four days later she was released from gaol on licence. After his mother’s release, Trevor gave a lengthy interview to the Sunday Telegraph, which was published on 25 October 1992. The story, which was spread across two pages, was headlined, ‘I DIDN’T KILL MY FATHER’. BOY’S TRAGIC STORY OF HOW HIS MOTHER ACCUSED HIM OF A CRIME HE DIDN’T COMMIT. It was, understandably, a sympathetic article and told of his suffering after the Slattery Inquiry. To his great credit, Trevor told of visiting his mother in gaol ‘about fifteen or twenty times’. He spoke of his pain and hopes for the future. Lorraine Price was aged thirty-nine when arrested. She had served the greater part of her sentence in Mulawa, the women’s prison at Silverwater. Her release was from the Norma Parker women’s minimum security gaol, the notorious old Parramatta Girls’ Home modified. She had been on work release for a year before that. But she was still a prisoner. Will Mrs Price ever be free? She lost a decade of her life, she lost her husband, home and children, and lost her inheritance from her mother on legal fees. In time served, perhaps she was treated humanely. At the time of writing this book, the standard non-parole period for murder is twenty years. If Mrs Price were a manipulative killer, she chose a perilous, cruel and pointless route to end her marriage. Unhappy husbands and wives always have the melancholy remedy of divorce. Many an ill-treated wife who has killed has been shown mercy by the courts. Mrs Price relied on none of that. To this day, the Lorraine May Price case remains a sad mystery.

CHAPTER

6 Michelle Lawford—The Tragic Mum

Justice Ronald Cross was a man with a gift for elegant language. He was tall and thin. He served in the air force during World War Two and was badly wounded in combat. He did not have a reputation as a lenient judge. At the time Michelle Lawford appeared before him charged with the murder of her husband, Justice Cross was an acting judge of the Supreme Court, though he had a wealth of experience from his decades as a District Court judge. Justice Cross would remain on the Bench of the Supreme Court and become the longest-serving judge in Australian legal history, with the exception of Justice Edward McTiernan on the High Court before age limits applied. Michelle Lawford was a young mother with one child, a four-year-old daughter, Anastasia. On the evening of 27 October 1977 she lost control and killed her husband—he died from a single stab wound to his back. Mrs Lawford deserved more than a little pity. Her life had been dreadful: for years, Mr Lawford had physically, verbally and emotionally abused his wife to the point where she could take no more. Police had charged Michelle Lawford with her husband’s murder when I was briefed to appear. Initially, she was refused bail and kept in gaol, and her four-year-old daughter was taken away by child welfare authorities. The little girl’s father was dead. Her mother was in gaol. The future for both was bleak. As the trial approached, not unexpectedly, the Crown had indicated a preparedness to accept a plea of guilty to manslaughter in full discharge of the indictment. This was a fair and proper development, and with it came the dilemma of how to advise Mrs Lawford. She was a pleasant young lady and obviously she would be trusting enough to take my advice. To reject the chance to plead guilty to the lesser charge would be a brave step. The homicide involved a single knife wound to her husband’s back. That factor alone was an extremely adverse one when the Crown law authorities came to consider the extent of her criminal liability. The Crown argument was that this showed cool intent and deliberation. The sad fact is, seldom do people stand in the dock for sentencing for doing something praiseworthy; crime by definition is antisocial. A crime of violence, as here, is very much so. The selfdefence argument for the battered wife was not all plain sailing. The offer to accept a plea of guilty to manslaughter conceded she was acting in self-defence, but her force was excessive. The lack of any physical injuries to Michelle Lawford, in the legal context only, detracted from the ‘battered wife’ plea. There were three possible outcomes to consider. First, if she were convicted of murder, the only sentence then available was mandatory penal servitude for life. Gender did not spare a battered wife from that. Second, there was always the chance a jury could allow sympathy for her to intrude into their deliberations and acquit her outright. What is not always understood is that to convict of murder did not require proof of an intent to kill—proof of an intention to do serious injury was enough. This was amply demonstrated by the use of a knife on the unarmed victim. The chances of an outright acquittal were not high, but could not be absolutely ruled out. The third, and most likely, outcome in a trial would be a conviction for manslaughter. Moreover, an offer of acceptance of a guilty plea to the lesser charge of manslaughter is seldom offered by the Crown, unless there is a real chance of an outright acquittal. The Crown has a substantial public duty to perform, and part of that duty is to minimise the possibility of criminal conduct avoiding any punishment. This is what motivates the offer to accept a plea on a lesser charge. That was my opinion. For what was classically labelled a domestic homicide, the prospect of a sentence of more than seven years was, in my humble opinion, unlikely. A sentence of the order of three years seemed within the range. In those days, a minimum term was fixed and it was not beyond the bounds of hope she would be eligible for release after a year, or a shade less, in gaol. There was an unlikely, but possible, chance of release on a good behaviour bond. Mrs Lawford’s guilty plea, remorse and strong subjective features, would attract further reduction in the sentence. While these days it is not politically correct to say so, a person’s appearance and demeanour can, and does, influence judges and juries. A demure, diminutive lady and neatly attired gentleman somehow always seem to be a shade in front of the tattooed hoodlum in the sympathy and leniency stakes. Mrs Lawford had been granted bail and we had a meeting at my chambers in Phillip Street one very wet winter’s night. I remember how sad I was sitting with her and explaining there was the very real prospect she would end up in gaol. All Michelle Lawford wanted was to be with her young daughter, Anastasia. My hope was, by taking the plea, that separation would be as brief as possible. Advising a client who has a credible defence to the charge of murder to accept the offer of a plea of guilty to manslaughter, and therefore not getting the opportunity to test the defence, is the most difficult task I ever faced at the Bar. And it never got any easier with time.

* * * The sentencing hearing was in June 1978. In such a hearing, the judge must determine the facts, evidence and any mitigating circumstances, upon which they will pass sentence. Careful, merciful judges will tell you there is no more arduous judicial task. The adversarial nature of proceedings between Crown and defence is significantly diminished and, dare I say it, more relaxed when a hearing relates solely to sentence. Therefore, during the hearing, my subtle unspoken theme was to endeavour to suggest to Acting Justice Cross that if he himself had been appearing for the accused and elected to go to trial, rather than plead guilty to manslaughter, then a jury may well have acquitted Mrs Lawford outright. This submission was an endeavour by me to magnify the reduction of the sentence for pleading guilty and, in the process, not antagonise the judge. There is, however, a flip side. An overly favourable representation of a version of the facts which is inconsistent with guilt may result in the judge refusing to accept the guilty plea at all and they could set the matter down again for trial. The defence has overplayed its hand. Thus, a delicate forensic touch is required. Naturally, my presentation of the facts was crafted and unfolded in a fashion to favour Michelle Lawford. Having said that, the explanation of Mrs Lawford’s act—although the plea of guilty acknowledged it had exceeded what was reasonable retaliation—went very close to asserting the complete argument of self-defence. In short, I feared I was

doing too good a job, which could have led the judge to reject the guilty plea. The testing of that defence before a jury in a murder trial would have been much more thorough. Thankfully, Acting Justice Cross was attentive and apparently sympathetic. As we were coming to the end of the day, Justice Cross posed a question. If he accepted, at the highest level, my presentation, then what should be the outcome? My respectful reply was he ‘not send Mrs Lawford to gaol’. His Honour’s response was courteous, but he inquired whether that outcome was really within the responsible exercise of his discretion. It was within his wide discretion, I replied, and ‘this was a truly exceptional case’. Suddenly the session was over for the day. The judge thanked me for my assistance and praised my commitment to my client’s cause. This, my instructing solicitor whispered, was the ‘kiss of death’, a cliché in the lawyer’s trade presaging an unfavourable result. Just before adjourning, the judge described his sentencing task as ‘difficult’. Again, not a good omen. Michelle Lawford had been on bail during the proceedings and I tentatively asked for it to be continued. Acting Justice Cross paused, then said, ‘Very well’, quickly adding no one should read his continuance of bail as an indication of the likely outcome. None of us were feeling overly optimistic. Within a week the sentencing hearing resumed. All rose as Acting Justice Cross entered and was seated. The uniformed sheriff’s officer indicated to Michelle Lawford for her to remain standing, as is procedure. Normally, the judge would then address the accused, say they accept the plea, outline the evidence and any factors which may affect their sentencing, and go on to deliver the sentence. After this Mrs Lawford would be led down to the cells and then taken to gaol and processed. Instead, the judge, in a soft voice, told Mrs Lawford she could be seated. Polite but, from past experience, not a good sign. Acting Justice Cross started to read from his notes. He accepted and made telling reference to the violence Michelle Lawford had suffered as a basis for some leniency: ‘It is plain, from a mountain of unchallenged evidence, that almost throughout their married life, her husband exhibited continued and major violence to her.’ Justice Cross then made a very important finding: ‘No jury would have returned a verdict of murder in the light of all the provocation.’ Proved provocation can reduce murder to manslaughter. The judge continued, ‘Even on the manslaughter charge, and though the deceased was stabbed in the back, a plea of self-defence may have touched the heart of a sympathetic jury.’ He warned of the ‘stern retribution’ that awaited unhappy wives who took the law into their own hands. The judge’s considered, deliberate opinion was, ‘no jury would have returned a verdict of murder … this carries unambiguous criticism of the decision to accept the guilty plea to manslaughter.’ His Honour was saying, had Michelle elected to go to trial, the worst thing that would have happened is precisely the predicament in which she presently stood, or sat, facing sentence for manslaughter. And I was wrong in advising my client to accept the plea. Justice Cross looked straight at me when he delivered the sting. His Honour’s opinion cannot be discarded. Here, however, counsel’s position is a difficult one. The top priority is seeking to achieve the best possible result for the client. Mrs Lawford’s best interests were the paramount consideration. Counsel has a privileged role, but it carries with it very heavy responsibilities. To proceed to trial is not a question of counsel’s ‘courage’ or expediency. If an honest mistake is made, counsel does not serve any time in gaol as a result; that is the sad lot of the client. In some ways, gambling the lot and going to trial is the more expedient option for counsel: it leaves the outcome to the jury. If the gamble succeeds, counsel’s reputation is enhanced with a bit of a ‘win’. If the gamble fails, it can be explained away smoothly on the grounds ‘the Crown case was just too strong’, ‘the judge was against it’, or the prosecutor ‘went right over the fence’, or a combination of all three. Outright acquittals for murder are rare. Again, counsel’s role comes back to weighing all of the facts and circumstances and advising what is honestly believed to be in the best interests of the client. There are many escape hatches. The most plausible is: ‘Well, it was the client’s decision.’ That is a statement of fact. It overlooks the reality, however, that, if counsel has earned the trust of the client, their advice, even if it is not what the client wanted to hear, will usually be decisively influential. It must be conceded that there was a chance of Michelle Lawford gaining an outright acquittal. Against that was the undoubted fact the deceased had been stabbed in the back. And there is, as I’ve said, no guaranteed result in a murder trial. Acting Justice Cross concluded by describing Mrs Lawford’s case as being ‘genuinely exceptional’. He went on: ‘She could stand no more. Battered, humiliated and upset, terrified at what he might do next … she stabbed him.’ Staring at me, as a teacher does a disruptive student, the judge said, ‘In the light of this history, only a Rhadamanthine court would fail to extend compassion.’ That classical allusion confounded all in the courtroom. We looked at each other, but dare not let Justice Cross know we had no clue as to what or who he referred. In time I found a copy of The Myths of Greece and Rome, by HA Guerber. In Roman mythology, three judges, one of whom was Rhadamanthus, determined the fate of the dead. The good were led to the Elysian Fields, and the evil condemned to suffer in the fires of Tartarus and incessant torment. Thus, Rhadamanthus was a member of, perhaps, the first plural bench. In Greek mythology he is the son of Zeus and holds the same position. Mrs Lawford was released on a five-year good behaviour bond. She did not go to gaol, but ever since I have agonised over whether or not the advice I gave her, to accept the offer and plead guilty, was the best advice. While the decision for her to plead not guilty to murder but guilty to manslaughter was hers, I know she was heavily influenced by me. Her sole objective was to stay out of gaol and reclaim her daughter, who had been placed in the care of the state. The Sunday Telegraph of 25 June 1978 led with the headline, TRAGIC MUM FIGHTS TO WIN BACK ONLY CHILD. The story read, ‘Tragic Michelle Lawford, driven to kill her violently brutal husband, now faces a battle to get back her only child.’ On her release Michelle was penniless and had nowhere to live and no job. She told the press, “I will love my husband till the day I die, but Anastasia is the only thing I have to live for now.” Yes, I had saved Michelle Lawford from gaol. Was it a time for celebration? Certainly not. She had admitted criminal responsibility for killing the man she loved and the father of her child. With all that had happened, there was a long, emotional road ahead for mother and daughter. At least they were now taking it together.

* * * Rhadamanthine—that one word of classical imagery—was an intriguing flourish by Justice Cross. It did not dilute, however, the judge’s clear decision that this was one of those rare moments where extreme mercy was allowed. Was there, therefore, a real possibility a jury, as Justice Cross believed, would have acquitted her outright? Very likely, yes. But this opinion is blessed with hindsight. And against this was the risk of conviction for murder. Trials to this point had not been favourable to the accused and, bluntly, the odds were against us. Justice Cross may have, again with hindsight, made Mrs Lawford’s case sound like it was an easy one to win, but reality is very different. There are no easy cases; they are all difficult because there is so much at stake.

By accepting my advice, Mrs Lawford had forfeited her right to have her case determined by a jury. I have wondered if my decision was too timid. I only say this because, in 1979, after Mrs Lawford’s case, I defended a chef, 39-year-old Peter Werner Krauss. He was employed at the isolated but popular tourist location of Jenolan Caves, southwest of the Blue Mountains. Krauss was accused of murdering a fellow employee at the hotel, Garry Robert Nicholson. Krauss maintained he was not guilty because of self-defence. Before the trial, the Crown offered to accept a plea of manslaughter. I explained to Krauss that such a guilty plea would not abandon the self-defence, but concede it had gone a bit too far. I warned Mr Krauss a gaol sentence of a couple of years was inevitable if he took that advice. On the other hand, if the jury did not believe his side of the story and convicted him of murder, the judge was bound by law to pass only one sentence. Life imprisonment. From our first meeting at Bathurst Gaol I was impressed by Peter Krauss and sympathetic towards his predicament. He was a gentle, likeable man of good character, but the case against him was strong. There were two wounds on the victim, and Krauss had initially lied to police about knowing anything of Gary Nicholson’s death. These were extremely negative factors. Moreover, Nicholson was unarmed. Krauss, however, was the victim of bullying. At the time of arrest, police also recorded injuries upon Krauss’s body consistent with being beaten. My feeling was a verdict of manslaughter was the most likely outcome. With my instructing solicitor, Chris Bruce, we conferred with Krauss at Bathurst Gaol many times prior to the trial. Not always do solicitors and barristers agree. Chris Bruce was adamant the offer of a plea to manslaughter should be rejected and the outcome left to what he described as the good sense of a Bathurst jury. Bruce was a local boy. He was also very experienced and had a reputation for sound judgement. My enthusiasm for risking the mandatory life sentence was not great at all. That outcome was a real possibility. The ultimate decision, however, was for the client. Peter Krauss decided ‘murder or nothing’. We went to trial. Peter Krauss’s defence was simple and convincing and he elected to give evidence on oath. He told of hiding in his room after being assaulted by Gary Nicholson. Nicholson then forced his way into Krauss’s room, moving towards him in a threatening manner. Krauss was frightened and reached for his cook’s knife, which was in a bag nearby. He swore he had no recollection of actually stabbing the deceased—not necessarily an untruth if he was terrified and feared for his life. The ready availability of the knife in his room was not necessarily an incriminating feature either. After all, he was a chef—it was perfectly normal not to leave his tools of trade lying around in the kitchen. Krauss was an honest man who believed he had no alternative other than to reach for and use his knife to defend himself. The Crown submitted to the jury that Krauss’s blanket initial denial was undoubtedly a lie, told because of a guilty conscience. Another incriminating fact was Krauss’s action in burying the fatal knife in the ground. It was soon discovered by the Army using metal detectors. There were also the two stab wounds. This undisputed fact doubled his problem: one wound could be instinctive, but a second could indicate deliberation or anger or both. When told by the police he was a suspect, Krauss caved in and replied, ‘why [has] this happened over a clown like him … my life is ruined’. Prior to this incident, Krauss was a man of excellent character with an impressive work record. Peter Krauss had decided to put his faith in the jury and let them decide his fate. That was his right. And his faith was justified when, after the shortest of retirements, the jury unanimously returned a verdict of not guilty. Krauss had been vindicated, he was still of unblemished character, and he could now celebrate his impending fortieth birthday a free man. Peter Krauss’s story is a perfect contrast to Michelle Lawford. While both had forensic evidence proving excessive force had been applied, Lawford decided to take my advice, with a strong prospect of still doing gaol time, while Krauss believed in himself and the jury and went for broke. Pete Krauss showed me it was possible to risk it and win a murder trial. The outcome of Mrs Lawford’s hearing still troubles me, though. Would I have done anything different? I’m not sure. I did what was right at the time. To explain, but not to give as an excuse, I followed advice I had been given by Tony Bellanto, who always said, ‘Be very careful, son … remember, we lawyers never serve a day.’

* * * As a footnote, many years later, after I had been made a judge and Justice Cross had retired, he invited me and my wife, Judith, for Sunday lunch at his home in Bowral, in the Southern Highlands. It was a very pleasant afternoon, though I have to admit to being awed by the occasion and feeling a little awkward about calling him ‘Ron’ on his insistence. Judges and the profession usually don’t mix, unless they are friends. We ate, we drank, we talked, we watched cricket, but we never mentioned anything regarding Mrs Lawford. All that had to be said, had been said in court on that day. Sadly, Justice Cross and his wife, Gloria, did not enjoy a long and happy retirement. They were involved in a serious vehicle accident and Mrs Cross was killed. Justice Cross then went to Canada to be with family, but died soon afterwards. The late Judge Paul Flannery organised a Requiem Mass which was attended by a large number of judges and the legal profession to pay tribute to a much respected figure.

CHAPTER

7 Maddison v Goldrick—The Case that Changed the Law

On Monday morning, 5 May 1975, there was a heavy police presence and security was tight at the new City Coroner’s Court, which was located on Parramatta Road at Glebe. The preliminary hearing of the murder charge against Gary Findlay was about to begin. Historically, the Sydney City Coroner’s Court was a dingy, grim, small building in The Rocks area on the harbour foreshore opposite the Opera House. Its new home was almost opposite the entrance to the Sydney University main oval. The architecture was coldly modern, and the atmosphere was still grim. This was accentuated by the grey brick walls inside the courtroom. My client was Gary Findlay, a 23-year-old butcher who was charged with the shooting murder of a bank teller during the armed robbery of the ANZ Bank at Bondi on 19 March 1975. He also faced a charge of the attempted murder of an elderly man at Epping, in Sydney’s northwest, two days before the robbery. He had been granted legal aid and I was the public defender assigned to his case. Gary Findlay had been arrested the day after the robbery and immediately complained to the magistrate, at Waverley Court in Sydney’s east, protesting his innocence. It emerged, however, that, at the time of the offences, Findlay was on parole after serving three years in gaol on three sentences of armed robbery. Perhaps that inspired police interest in him as a suspect in the first place. Unrepresented by any lawyer at that stage, he denied a police claim he had confessed. There was never a written or signed confession, but only two, disputed, unsigned records of interview. That was the Crown case. The police had also held two identification parades. The first was on the day of Findlay’s arrest and the other six days later. On each occasion three eyewitnesses were shown the line-ups, for a total of six witnesses. On the first occasion, one person identified Findlay. The other two eyewitnesses did not. At the second line-up, none of the three eyewitnesses identified Findlay. Importantly, Detective Sergeant Angus McDonald, the officer in charge of the case, later conceded that, in the second line-up, another man had twice been identified by witnesses. That shock revelation severely damaged the police case. Moreover, the twice-identified man was allowed, by the police, to leave the police station and vanish without trace. Not even his name or address was recorded. The committal proceedings are a preliminary hearing to disclose the prosecution case before trial by jury. Hearing the matter was magistrate Mr John Goldrick. He was the first appointment to the magisterial bench from the Bar. Previous to this, appointments were made by seniority from the ranks of public servants working in the Justice Department. Mr Goldrick proved to be polished, polite and decisive. The atmosphere in the courtroom was tense, particularly as I had informed the magistrate of my instructions, which were that the police had framed Gary Findlay. It was against this background I began my cross-examination of Special Crime Squad Detective Sergeant Angus McDonald. McDonald was a daunting witness. Conservatively dressed in a dark suit, he gave evidence with a distinctive Scottish brogue that was far from a whisper. He was a highly respected detective. In private life, he later had the distinction of being husband to the governor of Queensland. Cross-examining him was always a formidable task. He rejected allegations of fabrication impressively, with emphasis and drama. As officer in charge of the case, Detective Sergeant McDonald had prepared what has become known as the ‘police brief’. It consists of the statements of the witnesses who had been interviewed by the police and may be called to give evidence. The name police brief is not an accurate or legally correct description, but it has been used so much over the years it has become part of the language. A brief is the file a solicitor delivers to a barrister for an advising or a court appearance and it is protected by legal professional privilege. The police collation is not. The police brief in the Findlay case was, as always, in the courtroom in the custody of the police prosecutor. I decided, as I had the detective sergeant in the witness box, to call for the police brief, as was my right under Section 12 of the Evidence Act. It was a tactical move, to have advance disclosure of the Crown witnesses and their evidence and then probe for error or worse. No one in court was the least bit surprised when I did it. Calling for documents during cross-examination was a daily occurrence in courts all over the country in civil as well as criminal cases. But calling for and being granted access to a police brief was a slightly different matter. Opposition to defence access to any of the police brief was based on the claim this had the potential to reveal the secret identity of a police informant. In the public interest, such identities are rightly kept confidential. In Findlay’s case, there was a fatal flaw to such an argument: there was never any suggestion this police brief contained any such information. When I asked Detective Sergeant McDonald, in cross-examination, if there was any problem with disclosure, he had emphatically denied there was. Angus McDonald was not a newly promoted detective sergeant; he had a reputation as an elite detective who had played decisive roles in most major cases. Mr Goldrick specifically asked Detective Sergeant McDonald three questions. Did he have any personal objection to releasing the police brief? Did the brief identify a police informant? Was there any matter of public policy which required consideration? The detective sergeant replied, ‘No, I have absolutely nothing, nothing to hide whatsoever.’ He added modestly, ‘I am as open as a book.’ The police prosecutor, Sergeant Noel Short, a serving police officer given the honorary rank of acting sergeant, objected and did his best to keep the brief from being handed over. In those days there was no barrister or solicitor on the prosecution side; in most cases, the police prosecutor was usually junior in rank and subject to direction by the detectives in the conduct of the case. That was the direct opposite of the ethical defence structure. ‘Instructions’ from the solicitor were not orders, but the client’s confidential account of their side of the story which would gradually emerge during cross-examination. Strict disciplinary rules applied to all defence counsel. In the worst case, striking off from the lawyers’ roll and the inability to practice law was the sanction. Those ethical restraints did not apply to non-lawyers, such as the unqualified police officer prosecuting. The use of the adjective ‘unqualified’ does not carry with it the implication of incompetence, far from it. Before the advent of the Director of Public Prosecutions, police prosecutors could, and did, mix it with the best of the criminal bar. Following legal arguments, the brief was produced to the magistrate. Mr Goldrick then granted me permission to read it. Conditions were imposed: I could only read it in the courtroom, while under supervision. I was still cross-

examining Detective Sergeant McDonald when the court adjourned at four pm.

* * * No sooner had the day ended than a writ was served on the magistrate, Mr John Goldrick, by the police to challenge his ruling in allowing me access to the police brief. The police tactic in response to my call was unprecedented—it involved the civil jurisdiction of the Supreme Court, not to determine the guilt of the accused man, but to interrupt the proceedings. The case became known as Maddison versus Goldrick. ‘Maddison’ was the Honourable John Clarkson Maddison, Her Majesty’s Attorney-General for the State of New South Wales. Mr Maddison was the plaintiff in name only. He had no personal involvement in the case. Likewise, nor did Mr Goldrick. Neither participated personally in the proceedings at any level. This was observing strict protocol and tradition. Findlay, on the other hand, was represented in the proceedings, though not named. It was very much in Findlay’s interest to be represented, as Magistrate Goldrick had ruled in his favour. Findlay was as interested in the outcome of the matter as I was. Naturally, at this time, the committal proceedings into the case against Gary Findlay were stayed. For how long, no one knew. The venue had moved from the Coroner’s Court at Glebe to the Common Law Division of the Supreme Court in King Street in the city. The chief judge of that division, Justice Robert Lindsay Taylor, also known as ‘Bully Bob’, elected to hear the case himself. The Crown did not select the Senior Crown Prosecutor nor one of his deputies. So seriously did the police and Crown law authorities regard the ruling, that the famed Chester Porter QC, of the private bar, was briefed. His junior, also of the private bar, was the portly John Traill, on the brink of taking silk himself. A formidable duo. Chester Porter was one of those rare silks whose practice extended across many jurisdictions. One of his specialties was, usually, preventing magistrates’ decisions during a hearing from being overturned by a higher court. With each successful representation, Chester Porter’s reputation grew. I consulted the Senior Public Defender, Howard Purnell QC, as to our next step. He thought the magistrate was correct and, like me, was a bit taken aback by the police reaction. He selected our colleague, the wily, veteran and gifted appellate lawyer Cliff Papayanni, to enter the fray. Cliff Papayanni was a man of many parts, a brave World War Two air force veteran of bombing missions over Europe, and a first-grade wicket keeper who was picked to play for New South Wales country against the South African cricket team in 1952–53. He was a much respected and admired advocate, particularly at the appellate level. While he did not wear a silk gown he certainly had a silken legal intellect. Not all great lawyers take silk. Today, Cliff Papayanni has the distinction of barristers’ chambers named in his memory, which opened in 2012 in Wagga Wagga, his birthplace. Purnell’s decision to assign Papayanni was not a decision to stand me aside from the case, it was recognition of the fact Cliff Papayanni was better equipped than me to represent Gary Findlay in the common law division of the Supreme Court. Appearing for Findlay, Papayanni was free of any personal criticism or professional embarrassment. Before Justice Taylor, Chester Porter attacked the propriety of my conduct in making the now controversial call for the police brief. This took us all by surprise. The possibility of this development had never occurred to me. The contention was the call was not a proper one. This adverse top level police reaction well and truly shocked me. Surely there was no impropriety in seeking access to the statements of those who would be called as witnesses? The other argument against us was the police making vague claims of potential harm, but calling no evidence of any actual or potential harm. There was never any claim of state secrets, such as the identity of an informer, or any other reason for the brief not to be seen. Far from being prejudiced by the contents of the brief, Detective Sergeant McDonald had welcomed it, saying he ‘had nothing to hide’ and was ‘open as a book’. The articulate and highly intelligent McDonald was in no way unsettled or caught off guard. Had Mr Goldrick not upheld my call for the statements that would not have been the end of the matter. There were other avenues open to me during the hearing and it would have been perfectly acceptable for me to ask what statements had been taken, from whom, and then call for each statement individually as each witness gave evidence. With regards to the suggestion my actions at the committal were improper, Cliff Papayanni, sadly, was unsuccessful in defending my call as being part of a legitimate forensic endeavour. This was a major stumbling block and a heavy blow for me. So, despite Gary Findlay having the benefit of Cliff Papayanni’s legal skills, the argument upholding the magistrate’s decision failed in the proceedings before Justice Taylor. The senior judge quashed Mr Goldrick’s ruling. We were dumbfounded. But the decision was only a setback. Immediately an appeal was lodged, not to the Court of Criminal Appeal, but to the Court of Appeal, the highest civil court in the New South Wales legal system. Usually, the Court of Appeal consists of three judges presided over by the president, the second most senior judge in the state. This time, in Maddison versus Goldrick, the highest judge, Chief Justice Sir Laurence Street, elected to sit. On his right was the president, Justice Athol Moffitt, and to his left, Justice Gordon Samuels, who would be appointed governor of New South Wales in 1996. The three were the cream of the state’s judiciary. The calm and unflustered Cliff Papayanni came through. All three judges agreed Mr Goldrick’s decision was correct and had not breached any confidentiality. ‘The prosecution should supply to the defendant copies of witnesses’ statements.’ Justice Samuels delivered the unanimous finding on behalf of the Bench and said, ‘Any procedure which deprived a defendant of the opportunity to pursue a proper and often fruitful course in cross-examination would be, in my view, seriously defective.’ The judgement and its legal implications were of such importance that the Crown refused to accept defeat in the Court of Appeal. They decided to go even higher and sought special leave to appeal to the High Court of Australia. The High Court’s home was still in the Darlinghurst complex at the Bourke Street end. The Crown asked the High Court to intervene because it extravagantly claimed the ‘ruling could jeopardise the whole criminal administration in New South Wales’. It was further claimed Mr Goldrick’s ruling was ‘a serious departure from normal practice’. This was heavy stuff. Those submissions before the highest court in the land were made by the eminent Mr Doug G McGregor QC, a president of the Bar Association and later judge of the Federal Court of Australia. His junior was Brian Herron, also destined to be a judge. By any test, this continued the very top of the range representation for the Crown, and all selected from the private bar. This was an awesome demonstration of the power of the state. When the matter was called, Cliff Papayanni was appearing for an accused before a jury in the District Court in another part of the Darlinghurst complex. With his trademark calm and unruffled way, Papayanni somehow managed to juggle both cases. I did not dare to contemplate what would have happened if a full bench of the High Court had been asked to grant Papayanni an indulgence, because he was part heard in the District Court. I need not have worried. The presiding judge was Chief Justice of the High Court, Sir Garfield Barwick, who was sitting with Justices Gibbs

and Jacobs. Together, they refused the Crown special leave to appeal, with Sir Garfield noting the term ‘police brief’ was a misdescription. The date was 3 May 1976, almost exactly a year to the fateful day on which I had made what turned out to be the highly controversial call for the police brief. The matter could now resume at Glebe Coroner’s Court. The whole process of challenging Mr Goldrick’s ruling was misconceived. That is best demonstrated by history: today, those statements of witnesses are given to defendants well before the committal proceedings even begin. As the unanimous judgement of the Court of Appeal validated, it advances the administration of criminal justice. The Court of Appeal judgement in Maddison versus Goldrick authoritatively stated the law as it stood. Gradually, however, that decision led to statutory provisions which changed the law, and were designed to streamline the lower court hearings. Few, if any of them, were beneficial to the accused. The nature and scope of committal proceedings would never be the same again. Then came the ‘paper committal’, which further drastically altered pre-trial proceedings, meaning no witnesses are called in the Local Court in indictable cases unless the magistrate is persuaded there are substantial reasons to justify the calling of those witnesses and allowing cross-examination, under Section 48E of the Justices Act. This effectively emasculates committal proceedings, which are the first step in the prosecution of every serious offence. The committal involves the presentation, by the police, of enough evidence to establish a case for the accused to answer and thus be committed for trial. It also informs the accused of the case that they are required to answer. But, essentially, as it stands today, there is a saving of public money. This is the overriding philosophy which, at the end of the day, rules the roost. There is a fundamental right to not only know the prosecution case but to also test it by cross-examination. Happily, the electronic video recording of police interviews in more recent years has drastically diminished such courtroom conflicts. Now there exists some protection for an accused from being verballed and conscientious police from the ordeal of denying false allegations of serious criminal conduct against them personally.

* * * After the High Court had handed down its finding, Cliff Papayanni returned to our chambers and, with a laconic smile, handed me Findlay’s brief and said, ‘I’ve won … now you finish it.’ After almost a year, the coast was clear to resume the committal hearing before Mr Goldrick, and for me to resume my cross-examination of Detective Sergeant Angus McDonald. Yes, my access to the statements continued. Mr Goldrick’s ruling on an issue, which arose suddenly and without notice, had been vindicated at the highest levels. At the end of the committal proceedings, Gary Findlay was committed for trial on both charges. I believed I had set the groundwork in exposing the flaws in the police case to put doubt in the minds of a jury. Before the Public Solicitor ever appeared, Findlay had publicly shouted his protestations of innocence in court. He disputed the two unsigned records of interview from the outset. Findlay’s instructions were unequivocal: these documents were false. The line-up parades distinctly favoured Findlay. His case had all the hallmarks of a fiercely contested trial with a real chance of acquittal. It was now trial time. Then, for the first time, Ernest Byron QC was briefed to appear for Findlay at trial. The presiding judge was Justice David Yeldham. A panel of potential jurors was present in the court and precincts, but a jury was never empanelled. Mr Findlay pleaded guilty. Suffice to say there was no trial. Proceedings were brief indeed. Even Justice Yeldham was taken aback by the plea. In those days, it was commonplace to always run a trial when faced with a murder charge, whatever the evidence. There may be something in defence to bring about, at least, a plea bargain, reduction in sentencing or, at best, an acquittal. Without a challenge, the accused was looking at life. Justice Yeldham told the court that pleas of guilty were not generally accepted on murder charges. The judge said Findlay was over twenty-one years of age and of sound mind. He added the abolition of capital punishment removed any reason for him not accepting a guilty plea to murder. The judge had no power to exercise any discretion, favourably or unfavourably, to Gary Findlay. He then formally imposed the sentence of penal servitude for life. Gary Findlay served sixteen years before being released from gaol. I do not know what changed the case so drastically. That observation is, perhaps, something of an understatement. I do not know to this day whether, or how, Mr Findlay’s instructions changed. Nor was I entitled to know.

CHAPTER

8 Peter Schneidas—A Wasted Life

Peter Schneidas was a highly intelligent young man born to Lithuanian parents in 1957. He was a complex character who had a disturbed childhood, but there was no hint of violence in his personality. While still a teenager he had the misfortune to receive a three-year gaol sentence for false pretences. Dishonesty: a white collar crime. No hint of violence. Schneidas thought, with some justification, that the sentence was too severe. It was his first offence and while a custodial sentence is always likely, in this circumstance the judge had the discretion of suspending the sentence as a deterrent. As it is often said in Monopoly, ‘Do not pass go, do not collect $200, go straight to gaol.’ And he did. Because of this, you could say Schneidas had a chip on his shoulder. His disrespectful behaviour soon found him not on a prison farm but in the feared Parramatta Gaol, a maximum security prison located in Sydney’s western suburbs. Again, not the situation a first-time offender should be experiencing. Inside its tall, weathered, sandstone walls, the gaol boasted the dreaded ‘Circle’, a place of solitary confinement that unsettled even the hardest criminal. Not coping at all well with gaol, Schneidas displeased the warders and was in constant dispute with fellow prisoners. Neither of those states of affairs is a good idea. Combined, they make prison life much worse than the terrible environment it already is, particularly for a teenage first-timer. Schneidas’s life was already on a downhill spiral, but worse was yet to come. On 17 May 1978, he received a tenyear sentence for assaulting a warder, not with his fist, but with an iron bar. Rarely does a friendship of any description, exist between warders and their clientele. And fair enough. But a ‘client’ who has bashed a warder with an iron bar is well and truly down the scale in popularity with all custodial staff. Rapidly Schneidas had gone from a first-time, short-term prisoner to a long-termer with all the anguish that entails. Schneidas was moved from prison to prison, a practice common in the correctional system. He spent time at Grafton Gaol, a maximum security facility and was labelled an ‘intractable’. Grafton would earn a brutal reputation for its treatment of ‘tracs’, as they were known: inmates given such a label endured sanctioned violence and solitary confinement, intended to to correct and control their behaviour. After Grafton, Schneidas was relocated to Katingal, a modern maximum security prison inside the Long Bay complex. It would be referred to by the 1978 Nagle Royal Commission into New South Wales Prisons as an ‘electronic zoo’. Katingal had opened in 1975 and housed some of the state’s most notorious prisoners. It closed in 1979. Twentyseven years later, the guilty state destroyed the evidence through its demolition. Journalist Stephen Gibbs, writing for the Sydney Morning Herald on 20 March 2006, described Katingal as ‘solitary confinement in a concrete coffin without natural light or air’. Compared with Grafton, Katingal was a subtle form of barbarism. For most prisoners, being locked up for the night allows a numbing loneliness to set in. That is relieved next morning with the muster and being let into the exercise yards. The real vice of the isolation of Katingal was that the loneliness and boredom was largely unrelieved. Sharing a small cell, and they all are small, is known as going ‘two out’. That never happened at Katingal; only one to a cell there. The individual cells were cramped, windowless and sterile. Rape, assault or murder in prison is often the result of sharing a cell. Katingal residents were, at least, safe from that happening. Katingal was at maximum capacity when housing forty inmates. The whole complex was air conditioned and artificially lit, which added to its feeling of weird unreality. As a security measure, the sense of isolation was accentuated by the door being made of iron with a hatch to pass in food. The cell mirror was of polished metal fixed to the wall. Staff could observe prisoners at any time through a concealed spy hole. Mail was photocopied before being distributed, supposedly to prevent drugs such as LSD being impregnated in the paper. Legal visits were always in a nocontact area. Katingal has a curious place in penal history. It only ever had one escapee, bank robber and career criminal called Russell ‘Mad Dog’ Cox. He was on the run for eleven years. At his trial for the escape, Cox ran the novel defence that Katingal was not a prison under the Prisons Act 1952. It was argued Katingal had not been properly gazetted, meaning the government had not officially designated the institution as a prison. According to Cox, therefore, how could he be on trial for escaping a prison when it wasn’t a prison? Interestingly, Russell Cox came before me for mention only on this matter prior to his trial when I was a judge on the District Court at the Downing Centre in Sydney. I observed in passing that I thought the argument was ‘stupid’ and left it at that. I have never understood that legal argument—Katingal was obviously a prison inside a prison. I visited Katingal a handful of times; two visits were after it had closed and was being used as a storeroom. Even then, as with my initial visits, the place held a morbid fascination. Katingal certainly instilled a sense of fear within me, even though I knew I could walk out and go home. At his trial, Cox’s defence counsel, headed by the very clever John Nicholson SC, succeeded with that argument. The jury were directed by the judge to find Cox not guilty. Cox was eventually released on parole on 7 December 2004. As far as I know he never offended again.

* * * Perhaps Peter Schneidas was Katingal’s most difficult inmate. During his time there he was equally unpopular with fellow prisoners and staff, an unusual status. The months passed slowly for him. Despite being in the worst of prisons, he kept his head down and coped as best he could. Within the prison system, keeping out of trouble earns prisoners little reward. Yet it was while he was at Long Bay that Schneidas was rewarded with being a sweeper—one of a number of trusted positions a prisoner can attain through good behaviour—in the notorious Observation Section, or OBS as it was known among the custodial staff. The OBS and Katingal were at opposite ends of a spectrum, ranging from Victorian primitiveness to modern technology. Prisons are unpleasant places, but the OBS was an absolute disgrace. To explain, inside the Long Bay Complex there are four prisons. Each prison is designed to house different types of prisoners, from violent offenders and those needing segregation, to those on remand and awaiting trial. As you enter Long Bay, the Central Industrial Prison is the one closest to the main gate, and is where the OBS was situated, fenced and cut off from the rest of the

complex. The OBS was designed for inmates with psychiatric problems, or otherwise perceived to be at risk. It also served as ‘death row’ when capital punishment existed in New South Wales. When Schneidas worked there, some of the prisoners were violent, others docile, while others were just heavily sedated. The exercise yard was a cramped caged area with no room or facilities for recreation. There was no shelter from the elements, be it extreme heat or drenching rain. Prisoners spent the day there, the bleakness only relieved when they returned to their cells for the night, early in the mid-afternoon. Not all cells were sewered. In short, the OBS was an inhumane hellhole. On 10 August 1979, as Peter Schneidas performed his sweeping role as a ‘trusty’, a young correctional officer, Mr John Mewburn, was patrolling the OBS. He was alone and unarmed. What, if anything, provoked the attack on Mr Mewburn is unknown, but he was struck repeatedly in the head with a claw hammer. Fellow officers and medical staff did what they could to save his life, but he died shortly after being rushed to Prince Henry Hospital. The finger was pointed at Schneidas and he was charged with the murder of this popular officer, husband and father. Given the brutal, senseless slaying of Mr Mewburn, resentment of Schneidas by other officers was understandable. For his safety, Schneidas was moved to Goulburn Gaol, in southwest regional New South Wales. I was briefed to appear for him and travelled to Goulburn Gaol for the first of many conferences. Goulburn Gaol was the harsh, forbidding Victorian fortress it remains to this very day. Interviewing Peter Schneidas was a grim experience. For our conference, my instructing solicitor and I were deliberately ushered into a remote and unsupervised area, which bothered me a little—after all, Schneidas had been charged with the murder of a prison officer. Our safety, however, didn’t seem to overly trouble the custodial staff all that much. At the first meeting, Schneidas produced a tape recorder. When I demurred, he reluctantly agreed. After all, this was under lawyer–client privilege, and written notes would suffice. In those days, police didn’t even contemplate using a cheap tape recorder when interviewing suspects. Schneidas was ahead of his time. Schneidas’s instructions were that he was innocent of the charge. After our conference, he was moved to the ultra severe and punitive punishment section of Goulburn Gaol. He asked me to look at his surroundings to understand the cruelty of his treatment. The staff allowed me to do so. His confinement was harsh and cruel. There was no violence because, by day, each prisoner was kept in isolation with no privacy, watched through the iron-grille ceiling, which was also the floor of the observation area. The prisoner was confined to this space and could only pace up and down to exercise. A zoo that caged animals in this fashion would be condemned by right thinking people. During my preparation for the trial, I visited the notorious OBS at Long Bay. It was frightening to me just being in the area as a visitor when I went to view the scene of the murder. It was a dangerous and unpredictable environment, a chilling place. As the fate of poor Mr Mewburn testified, it was dangerous for both staff and prisoners. As the death occurred at Long Bay, it was logical for the trial to be held at Darlinghurst. There was one catch: prison staff refused to hold Schneidas in a metropolitan gaol. If his trial were to be held there it would have been necessary for officers to drive him back and forth to Goulburn each day. This was not only impracticable but unfair to Schneidas. A fair trial under those conditions was impossible. The judge in charge of listing, Justice David Hunt, was sympathetic but unable to assist. The warders’ union effectively moved the trial to the less favourable venue of Goulburn. The brutal tragedy which caused Mr Mewburn’s death was at Long Bay and had no connection at all with Goulburn. If there were justification to change the venue it was the sole prerogative of the Supreme Court to do so, not the trade union. The intransigence of the warders was utterly indefensible. Sworn to uphold the law, they were arrogantly subverting it. The new chairman of the Department of Corrective Services was prominent academic Dr Tony Vinson. His administration was efficient yet humane. So concerned was Dr Vinson with Schneidas’s case he attended some of the hearings where I sought to have Schneidas’s rights upheld. It was a battle in vain. Dr Vinson recognised the grave injustice being done to Schneidas but, like the judge, he was powerless in the face of trade union militancy. My pre-trial opposition to the change of venue was based largely on the fact Goulburn Gaol was on the outskirts of that regional city. This heightened the possibility many potential jurors would be related to, or friends of, prison officers or their families. Prisons are popular in provincial cities. They provide employment and are generally beneficial to the local community. But the chances of an impartial jury were diminished. It was probably an insufficient basis, but my argument emphasised Darlinghurst was the logical and proper venue for Schneidas’s trial. There was no change. The trial would go ahead in Goulburn. Peter Schneidas’s defence was always an emphatic denial that he was responsible for the prison officer’s murder. The case against him was not overwhelming, dependent upon some fellow prisoners who each had varying degrees of personal imperfections. Prior to trial, we had subpoenaed these witnesses’ prison files and, importantly, their psychiatric records. There was abundant material therein to test their credibility. The Crown relied upon a number of prisoners. Many were still serving sentences and were held at Goulburn Gaol until called. Some had been released and received travel and accommodation allowances. It emerged they selected the Travelodge, one of Goulburn’s best motels, situated on the Hume Highway, which then ran through the heart of that city. Quite coincidentally, it was the same choice as the judge and counsel. Each morning at nine sharp, each exprisoner stood outside his motel room in front of his door on the walkway. No doubt a regimented practice from days of prison muster. In front of each was his bag. They were waiting for transport by police to the nearby courthouse. Shades of Long Bay, but really quite sad when you think about it. The trial began at the historic Goulburn Court House, Justice John Patrick Slattery presiding. The jury was empanelled in the morning and the Court adjourned for lunch. At two pm, Schneidas withdrew my instructions. For the first time in my career, I had been sacked. The correct legal euphemism for that indignity is ‘my instructions have been withdrawn’. That was a career first for me and, thankfully, the last. Schneidas chose to appear for himself. As well as cross-examining, he made an opening address and a statement from the dock, and then gave sworn evidence and submitted to cross-examination. By all accounts he did a pretty good job—some unkind court watchers rated it a better job than I could have done. Schneidas was gaoled for life. Justice Slattery expressed the view that prisoners who killed prison officers or police while on duty should never expect to return to live in the community. Back in the prison system, Schneidas was declared an ‘intractable’ prisoner yet again. After all, his crimes against two of their colleagues would hardly have endeared him to the remaining custodial staff. He was kept in complete isolation for years and deteriorated further as a person. Eventually, he was released after twenty long years, and there was hope. He married but died within months of his release on parole in a strange drug-related incident. Almost all of his adult life spent in gaol. A ruined life.

* * * Making Peter Schneidas a ‘trusty’ was a mistake. A massive and tragic mistake. Personally, he was unsuited to that classification, and should have never been placed in the OBS as a sweeper. When Schneidas entered the prison system, he arrived as a petty criminal with no history of violence. His anger at

being given a three-year sentence and the inherent, and at times condoned, violence of life inside broke him, and perhaps that’s what made him lash out at Parramatta and then at Long Bay, just a year apart. These incidents occurred after having spent time in Grafton Tracs and Katingal. The OBS, Katingal and Grafton Tracs are no more. In 1983, the OBS was bulldozed to the ground, and Katingal followed in 2006. Grafton was decommissioned in 1991, and then reopened in 1992, and is now a male and female medium-and minimum-security prison. The changes to the New South Wales prison system came after recommendations by Justice John Flood Nagle from the 1978 Royal Commission. His report unveiled the extent of sanctioned violence being perpetrated at Grafton. It is the view of the Commission that every prison officer who served at Grafton during the time it was used as a gaol for intractables must have known of its brutal regime. The majority of them, if not all, would have taken part in the illegal assaults on prisoners. In some instances, the beatings began even before the security belt and handcuffs were removed. The beatings were usually administered by three or four officers wielding rubber batons. The prisoner was taken into a yard, ordered to strip, searched, and then the biff began. The word biff by no means describes the brutal beating which ensued. A former prison officer, Mr JJ Pettit, described it, ‘sometimes three, four or five of them would assault the prisoner with their batons to a condition of semi-consciousness. On occasions the prisoner urinates, and his nervous system ceases to function normally.’ If most of the prisoners are to be believed, the officers had no compunction about beating them around their backs and heads; nor were they averse to kicking them when they were on the ground. They invariably abused them while they were hitting them … Sometimes they threatened to kill them. Katingal replaced the Grafton intractables section as the end of the line for troublesome prisoners. Sensory deprivation replaced physical brutality as the weapon to enforce submission. This was not a reform at all. Both options were as bad as each other. Neither should have ever happened nor be repeated. There is a misapprehension that to be a protection prisoner is in some way to enjoy a more comfortable mode of custody. True, it is segregated from the general population. Its occupants are mainly ‘dogs’, prison slang for informers, or ‘rock spiders’, the name for those sexual offenders whose victims are children. Protection is more, not less, arduous than for those in the general prison population. Privileges are fewer and time in solitary confinement is greater. Once on protection it is never really safe to return to the normal prison population. Other prisoners can see who is in the segregated protection prisoners’ exercise yards. Even a transfer to another gaol will not keep that fact a secret, as prisoners are constantly on the move between various institutions. The prisoner’s code, which authorises, even demands, the bashing and humiliation of child sex offenders, smacks of more than a little hypocrisy. Child sex offenders are at constant risk, not only of physical assault, but their food is often tampered with by the introduction of unpleasant adulterating products, often human waste or other body fluid. That hypocrisy is the justification advanced for other prisoners to sit in moral judgement. Loathsome though child sex offenders are, are they so much worse than killers, rapists, other violent offenders or drug dealers? Surely all are deserving of punishment, but it is best left to the community acting through the court system with all of its safeguards. Katingal’s successor, the so-called Supermax within the Goulburn Correctional Centre, was inspected by a state parliamentary committee in 2005. Earlier, the Corrective Services Commissioner, Mr Ron Woodham, gave evidence to the committee supervising the prison administration. One MP criticised the management of Supermax and its restriction of prisoners’ rights of appeal against their conditions. Mr Woodham was then told eight elephants had been successful in an appeal brought on their behalf over their conditions at Taronga Zoo. When asked why elephants at the zoo had appeal rights that were denied to Supermax inmates, Mr Woodham’s reply was blunt and unsympathetic: ‘Well, elephants probably do not go around murdering backpackers and children and doing armed robberies and shooting people and hurting my staff.’ On my scorecard Woodham won that one.

* * * For Peter Schneidas, the twenty actual years served for a top of the range murder, being that of an unarmed warder on duty, is interesting. This is middle of the range today in sentencing patterns for murder generally, and probably less than half of what to expect for the murder of a prison officer on duty now, I would expect. Today, in certain circumstances, ‘life’ is the mandatory penalty for the murder of a police officer. One imagines that would be a powerful guide in assessing the gravity for a murdered prison warder.

CHAPTER

9 Mad or Bad?

This chapter considers homicides where mental illness is a defence. To argue mental illness relies on the—some say archaic—nineteenth-century legal definition. This was a time where, in England and the colonies, including Australia, mental impairment was often the only way of avoiding the hangman’s rope. The definition of mental illness comes from the famous case of Daniel M’Naghten in England in 1843. He murdered the private secretary of British prime minister Sir Robert Peel after mistaking him for that statesman. He was acquitted on the grounds of insanity. The common law defence of mental illness was then defined and came into force following a debate in the House of Lords. The assassin M’Naghten’s case led to the formulation of the rules bearing his name. To succeed, the accused must prove they had such a defect of reason, from disease of the mind, as to not know the nature and quality of the act they were doing, or, if they did know it, they did not know doing it was wrong. The M’Naghten rules apply to this day in New South Wales. There is also the defence of ‘diminished responsibility’, which is available only in murder trials. This means the accused may not suffer from mental illness in the legal sense, but at the time of the murder their abnormality of mind substantially impaired their mental responsibility. The longevity of those rules does not mean they are perfect. But, approaching two centuries later, nothing better has yet been formulated by our parliaments or courts to take their place. A defence of mental illness is available across the entire criminal law spectrum, whereas diminished responsibility only applies to murder cases. Therefore, when facing murder, the tactical (there must be a better word for it) decision arises whether to rely upon one, both or neither. It is possible an accused would meet the criteria of both. From a defence perspective, the most favourable outcome for the client is the determining factor in choosing which defence to pursue. The defence has the right, providing the court is not misled or in any way lied to, to suppress expert reports deemed unfavourable to the accused. Ethically, the Crown has no such tactical prerogative—all evidence gathered by the Crown must not be suppressed. The Crown may, however, after disclosing the evidence, chose not to call a particular witness. Although mental illness and diminished responsibility appear to be similar, the main difference comes at sentencing. Mental impairment is a dominating feature in determining criminal punishment. In fact, it can intervene and remove criminal liability absolutely. Thus, the legal system has the dilemma of deciding if the correct diagnosis has been made. Is the accused person mad or bad? Or neither? Or both? A person found to be mentally ill is subject to being kept in psychiatric care, whereas a person found to have suffered diminished responsibility receives a custodial sentence in a gaol. If you think the former is a softer option, take it from me, if you’ve committed a violent crime it is harder to convince people of your sanity than convincing a parole board of your good behaviour.

* * * In 1983, Robert Booth, a 45-year-old invalid pensioner, had an appointment with GP Dr Montague Mutton, at his Parramatta surgery. When Booth arrived he produced a gun and, without provocation, shot the doctor dead. Booth then surrendered himself to local police. There was a loud and violent community outcry when Booth’s charge of murder was reduced to manslaughter on the grounds of his diminished responsibility. His psychiatric evaluation fell short of being serious enough to raise the defence of mental illness; most likely, he did not suffer from an ongoing or permanent mental illness. Such a difference does not mean there was not an intent to kill. As explained earlier, it is based on the offender suffering a serious abnormality of the mind—so serious that, it reduced his legal culpability. Justice Ronald Cross imposed a sentence of five years gaol and set a non-parole period of just twenty-one months. It was the lottery win of sentences. Understandably, Dr Mutton’s family was shocked and horrified and attacked the leniency of the sentence. The issue was raised in State Parliament. Speaking in the Legislative Council of the New South Wales Parliament, Sir Adrian Solomons told the House that to the people of Parramatta, the sentence ‘brought a reaction of almost disbelief’. Despite protests, that absurdly lenient sentence remained undisturbed. Case closed. The extreme leniency reflected the overwhelmingly strong psychiatric diagnosis and evidence. Even so, Justice Cross had set firm orders for Booth to undergo psychiatric assessment, but these orders were diminished by the short duration of the sentence.

* * * James Leighton Ferguson, a carpenter and New Zealand expat, was aged thirty-three when he boarded in a house at Wentworthville, in Sydney’s west. His landlady was a mother of three, Mrs Laurie Jean Callagher. While mentally ill, Ferguson believed Mrs Callagher ‘was Morag … head of the witches coven … had dealings with the supernatural and was involved in Satanism’. On 6 August 1980, Ferguson assaulted Mrs Callagher, strangled her and severed her head, placing it in the oven. After lighting the oven, Ferguson left the house with the victim’s three-year-old child on his shoulders. Leaving a trail of blood, he was soon tracked down by the police helicopter. At Ferguson’s trial, the Crown relied upon the notable Dr Oscar Schmalzbach to assess his culpability. In Dr Schmalzbach’s opinion, Ferguson did not realise what he was doing was wrong. Dr Schmalzbach found him to be acutely psychotic and certifiably insane, but his condition had gradually improved with treatment. Called by me on behalf of Ferguson, Dr William Barclay, another eminent psychiatrist, said Ferguson was a manicdepressive with a mental illness. In his opinion, he agreed Ferguson knew what he was doing, but did not know that it was wrong. If accepted, that condition was a classic case of legal mental illness. Dr ME Dix, a South Australian general practitioner, said Ferguson had been her patient for the previous four years. She treated him for ‘bipolar manic depression psychosis’.

Based on the medical evidence, the Crown and the court agreed Ferguson was suffering from a mental illness. On 31 March 1981, in the Central Criminal Court, Justice David Hunt pronounced sentence, following the prescribed statutory formula, ordering Ferguson be kept in strict custody at the governor’s pleasure. That wording is another imperial legacy, which means the government of the day decides, through its officials, when Ferguson is allowed back into the community. His time would be spent in a psychiatric hospital, not in gaol. After the verdict, James Ferguson was permitted by Justice David Hunt to make an emotional and moving statement. He spoke, in a faltering voice, of the dangers of taking prescribed drugs without adequate advice and supervision. He also admitted, ‘I had come off the drug lithium carbonate some three months earlier, not knowing the dangers of that action.’ Ferguson described the deceased, his landlady, as being ‘one of the most caring people I have ever met. Our friends and families have been torn apart by what happened. I can never repay for the results of what happened … too many people have been hurt too badly for that. The knowledge that I have taken a life is sometimes too much to bear.’ Ferguson also spoke of writing from gaol to the Queen and Prince Charles and the prime ministers of Australia and New Zealand about the dangers of inadequate supervision of drug taking. I had not discussed with Ferguson the scope of this statement. The verdict was inevitable. He spoke rationally and from the heart. The family of Mrs Callagher were more than charitable and understanding. Her partner said, ‘James was sick … he didn’t know what he was doing.’ On the other hand, the victim’s mother was stunned and critical of Ferguson’s release after serving only two years and nine months. She said, ‘I thought he would be away for at least ten years.’ Ferguson spent slightly longer in the ordered ‘strict custody’ than Robert Booth did in gaol. The Daily Telegraph headline of 16 June 1983 says it all: KILLER FREE: SHOCK FOR FAMILY—HEAD IN OVEN SENTENCE CUT TO 34 MONTHS. On release, Ferguson was deported to New Zealand.

* * * Paul Anthony Allen is the most troubling case of all and was one of my very last as a Public Defender. Mr Allen was a 26-year-old hardworking man of impeccable character. In July 1985, he was a trainee engine driver with the State Rail Authority. It was at this time he beat his de facto wife, Tanya Bagoly, to death with repeated blows from a baseball bat at their home at Barrack Point, near Wollongong, on the New South Wales south coast. He believed she was possessed by the devil. Psychiatrist Dr Rodney Milton supported Allen’s plea of not guilty on the grounds of mental illness. Dr Milton diagnosed him as suffering from a ‘severe and overwhelming paranoid schizophrenic psychosis’. He said Allen believed his de facto was possessed by the devil and ‘by killing her he was somehow performing an act which was good rather than evil’. Allen had also told the arresting police sergeant, ‘She [Bagoly] nearly admitted to me that she was Satan.’ Equating his act as good, as he did, demonstrates the depth of his possession by evil. This was the uncontradicted defence of Paul Anthony Allen. The torment of Allen’s mind was profoundly revealed when he told Dr William Barclay he had not killed Miss Bagoly, adding, ‘Tanya was a robot. If she had been a real person, there would have been more blood on me.’ The Crown did not dispute the diagnoses of these top ranking psychiatrists. On 5 March 1987, the jury took only twelve minutes to find Mr Allen not guilty on the grounds of mental illness. There was never any dispute Paul Allen was legally insane at the time of the murder, but with treatment he soon came good, if that is the correct word, and the experts decided there was no longer any sign of any mental illness. So much so that—and it must almost be without precedent—he was released on bail and went back to work for one year and eight months until the verdict. It is important to remember the verdict meant that, at the time of the killing, Allen was not legally liable, but insane. With regards to the sentence, however, he was perfectly sane and needed no treatment, but according to the law as it stood he could not be given a custodial sentence or, for that matter, be released. Although Justice Michael Grove had no misgivings about the propriety of the jury’s verdict, he was required by law to remand Paul Allen in custody, to await the decision of the Mental Health Tribunal. The formal order was for Mr Allen ‘to be kept in strict custody until the governor’s pleasure is known’: an indeterminate sentence in a psychiatric hospital, that hospital being Callan Park at Rozelle, in Sydney’s inner-western suburbs. The judge had no discretion. That order was mandatory. To be a patient in a mental hospital is no doubt a depressing experience for anyone. To be confined to one while sane is an unspeakable Dickensian ordeal. Mr Allen suffered, but did not complain. He felt great remorse over being responsible for the death of the woman he loved. He genuinely didn’t think any punishment to him could be severe enough for what he did to his de facto wife. But to me, indeterminate detention in a mental hospital, if you are not mentally ill, is what the Americans would call cruel and unusual punishment. His experience at Callan Park was far worse than being in gaol. It was very unsettling for him. I clearly remember sitting with Dr William Barclay at a table in the grounds of Cumberland Hospital, another psychiatric facility within the Western Sydney Local Health District complex, waiting to appear for Paul Allen before the Mental Health Review Tribunal. Patients from the hospital were wandering around us and, as lunchtime grew closer, the behaviour of many of them became increasingly more erratic. We were in no danger, however. It was explained to me the effects of medication given to patients after breakfast were wearing off. Paul Allen needed no medication. The absolute tragedy of this case is that an innocent young lady was violently killed by the man who loved her. There was no sane motive, no gain for Mr Allen, only heartfelt and enduring loss. His total inability to appreciate, at the time, what he did was wrong was accepted by the Crown. The law did not require punishment. Society did not need protection from him. His legal insanity had been identified and cured. Gaol was not appropriate, nor was the mental hospital where he was lawfully detained. The machinery to determine Paul Allen’s future rested with the Mental Health Review Tribunal. Its chairman was an eminent Queen’s Counsel, later to be a judge. The other two members were a psychiatrist and an independent citizen. I presented evidence to Mr Allen’s sanity and good behaviour while on bail prior to the verdict. The application, unfortunately, failed by majority: the chairman and the citizen member voted against release. The experienced psychiatrist was in favour. Proceedings before the tribunal are not open to the public. The hearing which I attended was conducted with competence and courtesy. There were competing public interests involved: the safety of the community and justice to an individual. My submission to the tribunal was that there was no basis in medicine, law or fact to hold Mr Allen in custody indefinitely. I acknowledged the whole problem arose in the first place from the actions of Mr Allen. It was philosophically and legally relevant that he was unable to control his actions, which cost his partner her life. The law governing uncontrollable fatal impulses is heartbreaking and permanently inadequate. Inadequate for the protection of innocent victims and inadequate for the fate of the offenders.

I do hope he was soon released, and not lost in the system. As I was no longer at the Bar, and thus could no longer appear for him, I lost touch with him. This was my last appearance as a barrister and a depressing one.

CHAPTER

10 Mallard and Veen—The Sleep of Reason

This is the story of two young men, Rodney Francis Mallard and Richard Charles Vincent Veen. I’m not giving anything away when I reveal both men were guilty of homicide. Both men possessed an abnormality of the mind which led them to claim diminished responsibility as their defence. Both presented expert witnesses to corroborate their defence. This is where the similarities end: each faced different judges and juries and their outcomes differed. With the delivery of their verdicts, the story of these two men and the effect their cases would have on the law had only just begun.

* * * On 31 January 1974, 49-year-old Miss Florence Jackson was strangled and sexually molested in her flat in Lurline Street, Katoomba in the Blue Mountains west of Sydney, not far from the famous lookout to the Three Sisters. The murder was committed by Rodney Mallard. He was only twenty-two. Mallard went on the run and was eventually arrested in Queensland and extradited to New South Wales. When arrested, Mallard admitted to the murder and signed a police record of interview. On the evidence, Mallard’s case looked hopeless. While Mallard awaited trial, a story appeared in Sydney’s Daily Telegraph on 28 June 1974, detailing the findings of an inquest in the Bairnsdale Coroner’s Court in Victoria. The coroner’s court had been hearing evidence into the 1973 murder of a bank clerk, whose body was found washed up on a beach on 6 February 1974. The court found the clerk had given a lift to and been murdered by a person identified as Rodney Francis Mallard. The same Rodney Mallard I was about to defend. Any attempt from Victorian Police to put Mallard on trial would now have to wait until after New South Wales had dealt with him. At the same time, we hoped any potential jury members hadn’t read the article or, if they had, would not connect our Mallard with the Victorian murder. Horrible as the facts were in the murder of Miss Jackson, they pointed inexorably towards an abnormality of Mallard’s mind. Instructing me was a rising young law clerk from the public solicitor’s office, Winston Terracini. In preparation, Terracini retained not one but two psychiatrists. He and I knew the Crown had exclusive first call on veteran government consultant psychiatrist, Dr Oscar Rivers Schmalzbach OBE. Dr Schmalzbach was a mercurial character, the veteran of over a hundred murder trials. Juries loved him. He was combative, yet charming. For the defence, we retained Dr Frederick Wright-Short, a highly experienced consultant psychiatrist who, over the years, was retained in countless criminal and civil cases as an expert witness. There was no psychiatrist in private practice more respected than him. He was silver haired and patrician, immaculately dressed in a dark pin-striped suit, white shirt and conservative navy blue tie, and he gave evidence in a calm and persuasive manner. Dr Wright-Short accepted the history Mallard related to him, and Terracini and I thought he was a perfect foil for the flamboyant Oscar Schmalzbach. We also had Dr Bill Lucas, who, despite his comparative youth, had great experience in homicide cases. He was also retained by the Faculty of Law at Sydney University. Such was Dr Lucas’s standing, he was officially the consultant psychiatrist for the Prison Medical Service. Dr Lucas was articulate and had a contrasting image to Dr Wright-Short, wearing a brown leather coat, colourful shirt and matching cravat, presenting himself in a dashing modern image for the times. These were the loud, flared seventies, remember. Each of our doctors were impressive and, I thought, particularly persuasive witnesses. Acting independently, they concluded Mallard had ‘an abnormality of the mind which substantially impaired his mental responsibility’. Mallard had worked, ironically, as a psychiatric nurse. In 1970, he was introduced to the occult and he engaged in devil worship. His involvement and subsequent mental condition was exacerbated by the use and abuse of drugs and alcohol. Both defence psychiatrists were firm in the opinion that Mallard, while suffering an abnormality of the mind, was not mentally ill. This meant we could not go down the path towards an insanity defence, but there was evidence strongly supporting diminished responsibility. As it happened, the New South Wales Parliament was about to introduce into criminal law the defence of diminished responsibility. To clarify, when elected officials make the law, they consult with the judiciary, and debate and decide on the law’s relevance and fairness to the community. It is the job of the lawyers and the courts to uphold the law. Diminished responsibility had been available in England for ages, but that section of the insanity defence had not been available in New South Wales before now. Knowing diminished responsibility was about to be made law, we were given some extra time to put together our defence prior to trial. Mallard and I would present the first diminished responsibility defence in the state. Once enacted, Section 23A of the NSW Crimes Act read: (1) Where, on the trial of a person for murder, it appears that at the time of the acts or omissions causing the death charged the person was suffering from such an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for the acts or omissions, he shall not be convicted of murder. (2) It shall be upon the person accused to prove that he is by virtue of subsection (1) not liable to be convicted of murder. For Mallard, we had every reason to be confident the defence would succeed and thus the verdict would be not guilty of murder, but guilty of manslaughter. The weight of evidence pointed powerfully that way. On my advice, Mallard had offered, before the trial even began, to plead guilty to manslaughter in full discharge of the indictment, but this was refused by the Crown. When arraigned before Justice John O’Brien, Mallard again pleaded guilty to manslaughter in front of the jury panel. The plea was rejected and the six-day trial proceeded. The state’s Senior Crown Prosecutor, Leon Tanner QC, was briefed for the prosecution. I submitted to the jury, Mallard’s life story was ‘strange and bizarre to the extreme’ and ‘one of demon worship, drugs and degradation’. I concluded my opening address with these words: ‘On that fateful day at Katoomba, reason slept.’

Mallard had admitted his involvement in demonology, Satan worship and the occult to Dr Wright-Short. The doctor diagnosed Mallard as a psychopath. While prejudicial, the introduction of the flirtation with Satan and the occult was an attempt to demonstrate how abnormally our client’s brain was behaving. The Satan worship disclosure to doctors revealed how devastatingly twisted was Mallard’s mind. Plainly that risk had to be taken—it was the only hope of reducing the crime from murder to manslaughter. With the defence of diminished responsibility being raised, the onus was on the accused to establish it. As with the defence of mental illness, this is an exception to the general rule that the onus is on the Crown, from first to last, and the accused does not have to prove anything. The shifting of the onus on these issues to the accused is not unfair. It is a matter of commonsense because, in a psychiatric defence, so much of the material which would support such a defence usually lies exclusively within the knowledge of the accused, their family and doctors. The onus on the accused is a lesser one than that usually resting on the Crown, that being proof beyond reasonable doubt. The standard of proof resting upon an accused, where a defence of mental illness or diminished responsibility is raised, is the same as that which rests upon a person who brings a civil case. It is sufficient to prevail by establishing proof on the balance of probabilities. In other words, to make out a case as being more likely than not true, or tipping the scales ever so slightly in favour of the accused’s position. In Mallard there was no dispute on the issue he was responsible for Miss Jackson’s death. The sole issue was not the abnormality or otherwise of his mind, but the degree of it. The Crown called witness after witness to unfold the ghastly narrative. Time and again I sought to shorten this by indicating there was no dispute as to the facts. Time and again my efforts failed, with the judge having sat me down. There was nothing legally wrong with the Crown leading all of this evidence in detail. It certainly brought home to the jury the highly unattractive facts. It did not, as I unsuccessfully tried to emphasise, assist the jury in performing its real task: to decide what medical opinions they preferred. The Crown’s detailed focus and emphasis on the ugly objective facts must have helped create an atmosphere of rejection of the technical psychiatric evidence. After hearing the gruesome details, how could the jury objectively view the offender’s mental condition and its relevance to the murder? This was, as I stated earlier, the first time the defence of diminished responsibility had been raised in New South Wales, and might even prove to be something of a precedent. If the trial judge, Justice O’Brien, had had his way, I think it would have been the last. It became plain Justice O’Brien had not, instinctively, formed an intellectual attraction to the defence case, and it was apparent very early in Mallard’s trial. He did not like the defence or its proponents. Our top rank psychiatrists, Dr Wright-Short and the incredibly highly qualified Dr Bill Lucas, outgunned the Crown’s theatrical Dr Oscar Schalzbach. True, it was not a numerical contest, but Mallard’s expert evidence was very imposing and thorough. Dr Schmalzbach, of course, expressed his opinion that Mallard was not suffering from any ‘substantial impairment of the mind’. He did concede, however, Mallard suffered from a psychiatric condition. Standing in the dock, Rodney Mallard addressed the jury, saying, I am not guilty of murder. I didn’t mean to harm Miss Jackson … It is really difficult for me to explain these urges. It was some power which came over me and I couldn’t fight it … I know I killed her and often see her face … I know what I have done, but don’t know why. I was friendly with her and on that day, at her place, my mind just went off. Something kept saying to kill her … Something kept going on in my head, saying she had to die. It is difficult, but what can I say other than that I am sorry? As was his custom, Justice John O’Brien summed up all day. As the Crown had done, the judge painstakingly reviewed the facts in great detail. And, as I had tried to argue during the trial, there was no real need for this as the essential facts had never been in dispute. The only issue was whether the accused had established mental impairment to the required degree. On this issue the accused had to establish his case on the balance of probabilities. We believed the evidence pointed strongly in that direction. Or so we thought. We seriously underestimated the influence of the judge. After retiring for only an hour, the jury returned with a verdict of guilty of murder. The rejection of Rodney Mallard’s defence of diminished responsibility on the basis of his mental condition was against the weight of impressive medical evidence. When Mallard was sentenced to life imprisonment, his body shook and he cried uncontrollably. There must have been a feeling of utter despair for this 22-year-old man. Not only did he face an indeterminate period in gaol in New South Wales, but he was also wanted for murder in Victoria. On 18 March 1983, Mallard was released by New South Wales Correctional Services and immediately extradited to Victoria for the murder of the bank clerk with whom he had hitchhiked. Mallard had served nine years for the murder of Miss Florence Jackson, and would spend another seven years as a guest of Her Majesty in Victoria. He was finally paroled in March 1990, after a total of sixteen years in gaol in two states. This, however, was not the end of Mallard’s story.

* * * Richard Charles Vincent Veen was but twenty years of age and living in a derelict house near Kings Cross, Sydney’s notorious red-light district. He was a prostitute and roamed the streets and hangouts around Kings Cross nightly. He had experienced a deprived and unhappy life from birth and had no parents and no home. He had been molested by his school teacher while a teenager. His Aboriginal heritage tormented him. He felt rejected by both the black and white communities. His potential to succeed faded with his almost vagrant lifestyle. He had suffered brain damage which triggered fatal violence when he partook of alcohol and had built up quite a criminal record, spending time in juvenile institutions for various crimes. He was devoid of hope. On the night of 15 February 1975, as usual, Veen picked up a man in the street and they repaired to the client’s apartment in the inner western suburb of Croydon. A copious amount of alcohol was consumed by both men. When Veen asked for money for his services, the client refused to pay and made a hurtful racist remark. During the resulting turbulence, Richard Veen picked up a knife and stabbed the man to death. The autopsy would record over fifty wounds —a frenzied attack. Veen was charged with murder. Veen took responsibility for the murder, but said it was the result of provocation: what Veen’s client did and said provoked an uncontrollable rage within him, a rage which overtook him, denying him reason and an understanding of the consequences of his actions. Although still a relatively new law, just under a year old at the time of the killing, Veen’s defence was diminished responsibility. The onus shifted to Veen’s defence counsel to prove that, on the balance of probabilities, their client had suffered an abnormality of the mind at the time of the killing. For this, the defence must call supporting expert evidence. Veen had no such evidence. Veen’s counsel relied upon a single psychologist who was contradicted by, yet again, the Crown’s expert, Dr Oscar Schmalzbach. The defence psychologist, while still a professional in the field, was not as experienced and court-savvy as Dr Schmalzbach. It didn’t seem a fair contest. Presiding over the trial was Justice Arthur Rath, another unknown factor. I never had the privilege of meeting or

ever appearing before his Honour, and there’s a good reason. While being an appointed Justice of the Supreme Court, Justice Rath’s expertise was not in criminal law—he was an equity judge. Even as a barrister, Justice Rath handled civil business matters, such as performance of contract and will disputes, fraud and the like. There are many specialist areas within the law, and equity and criminal are but two. It is very rare for a judge in one division to hear a matter in the other. Having said that, there is nothing to prevent a judge presiding over whatever court is assigned. A judge is a judge and should be, and is, able to hear any case, though it is usual for judges to be rostered to hear cases in which they have a specialty. So it transpired in Veen’s case that an equity law specialist would lead a jury through the criminal evidence to decide if the accused was guilty of murder or manslaughter, by reason of diminished responsibility. On 25 July 1975, the jury returned from its deliberations. The judge’s associate asked the foreman how the jury had decided on the charge of murder. Not guilty. On the charge of manslaughter? Guilty. Usually this would be all the jury would say, but a further question was put to them by Justice Rath. On what did the jury decide their verdict? Diminished responsibility, Your Honour. Justice Rath was fully entitled to pose the question to assist him in sentencing. The jury has no role in sentencing, but the sentence is set by the judge knowing on what the jury’s verdict was based. So here it was, diminished responsibility. Or provocation. In both defence categories the intent to kill is not excluded. The question, as framed by Justice Rath, did not exclude provocation. In the remaining categories of manslaughter, however, intent to kill is excluded; for example, the fatal consequence of a brawl, motor accident and the like. Basically, where a person dies through an unlawful act, and where it’s not proven the accused had an intention of killing or causing serious injury, it is manslaughter. To the surprise of everyone, Veen’s psychologist carried the day. He defeated the flamboyant Dr Schmalzbach. In contrast, Rodney Mallard had two very eminent doctors, but had failed to persuade the jury. Veen’s evidence relied on a lone psychologist, not a medical doctor, who won the jury over. Such is the uncertainty of litigation. While life was mandatory for murder it was then, also, the maximum for manslaughter, though a judge had discretionary powers to impose whatever sentence they felt appropriate. It was rare, indeed, for judges to hand down a life sentence after a verdict of manslaughter. In sentencing, Justice Rath remarked that Veen knew what he was doing and had intended to kill. ‘What he lacked,’ the judge found, ‘was the power to control his desire to kill.’ Justice Arthur Rath then sentenced Richard Veen to life imprisonment. Justice Rath, while accepting of the verdict, believed Veen would murder again if he found himself in the same situation. So, for Veen’s sake and to prevent another murder from happening, a life sentence was the only option. To use Justice Rath’s words, Veen was ‘a danger to society’. In those days, the phrase ‘never to be released’ had not been made law and therefore could not be used. Justice Rath never said it, but it was accepted that, in reality, Veen would not leave prison unless he was an old man, infirm, or in a pine box. It is difficult to accurately describe a judge’s remarks during the imposition of a life sentence as being sensitive and caring, but this was such a case. The more so, if Justice Rath’s premonition were to come true. As was his right, Veen appealed to the Court of Criminal Appeal, not against the conviction for manslaughter but against the life sentence imposed by Justice Rath. He had nothing to lose; in effect, the life sentence had taken away any benefit of being acquitted of murder. He expected, and should have received, a lesser sentence for the lesser crime of manslaughter. It was here the eminent Howard Purnell QC, Senior Public Defender, came into the picture. Notwithstanding his trademark careful and detailed argument, Veen’s appeal was dismissed in the Court of Criminal Appeal. Justice Rath may have lacked experience in deciding criminal matters, but his remarks were prepared carefully and showed great insight into his reasons for imposing the life sentence. The Court of Criminal Appeal did not interfere with Justice Rath’s decision. This seemed the end of the line. After a loss in the Court of Criminal Appeals, the only remaining step is the High Court of Australia. After lengthy consideration, Howard Purnell QC lodged an application for special leave to appeal to the High Court. I was then briefed as his junior. Purnell hesitated, not because of a lack of belief in the case’s merits, but because this was not an appeal against conviction—the High Court had a practice of refusing leave to argue appeals against sentence. History was against us. However, the reality is, and always has been, that the High Court retains a discretion to hear any matters which it deems appropriate. That is the prerogative of the High Court, which stands at the pinnacle of the country’s legal system. Nevertheless, we had to try for the benefit of our client and flew to Brisbane, Queensland, where the High Court was sitting. This was before the High Court of Australia’s permanent home, on the shores of Lake Burley Griffin in the Australian Capital Territory, had been built. Purnell succeeded in persuading the High Court judges that Veen’s case raised important questions of principle and general importance. In the United Kingdom, the use of life imprisonment as an indefinite preventive sentence for mentally disturbed offenders was well established. Preventive detention is authorised there by statute, but not in Australia. That is a crucial difference. The importance of the protection of the community does not justify a sentence of preventive detention. Of course, community protection remains a factor and an important one. Judges often forget a sentence should not be used to punish an offender for crimes they have not committed, but are likely to commit in the future, because of their mental condition. In appearing for a client facing sentence, counsel’s objective is obviously to seek to obtain the most favourable result: the briefest possible time in gaol. The law states a court must not increase a sentence beyond what is proportionate solely to protect society. In other words, mental abnormality must not lead to a more severe penalty. The High Court sat a bench of five judges to hear Veen’s application for special leave to appeal. Sir Ninian Stephen, destined to be governor-general of Australia, presided. He and Justices Kenneth Jacobs and Lionel Murphy formed the majority, prescribing a twelve-year sentence in place of life. Future Chief Justice Sir Anthony Mason and Justice Keith Aickin preferred remitting the fixing of a new sentence back to the New South Wales Court of Criminal Appeal. This is now the usual practice and, with respect, a preferable option. Importantly, all five High Court judges were in favour of quashing the life sentence. For Veen, Howard Purnell’s initial achievement was crossing the traditional threshold and obtaining the grant of special leave to appeal in a sentence matter. It was Purnell’s detailed and passionate submission, passion being a rare emotion to be permitted when addressing the High Court, which overcame the High Court’s usual practice of not entertaining sentence appeals. Since Veen, the High Court has been gradually more amenable to granting special leave to appeal in sentence matters. One such case was Walsh versus Regina (NSW) in 1984. In that case, special leave was granted when I established error, but the High Court did not pause to hear full argument and calculate the correction. They referred resentencing back to the Court of Criminal Appeal. It must be said, with disappointment, that the Court of Criminal Appeal’s correction was effected without discernible benefit to Mr Walsh. The Court managed to make as little change to the sentence as they could. It was a pyrrhic victory. Even so, Walsh was my first appearance as leading counsel in the High Court and a win! If only any of my subsequent appearances had been as successful.

* * *

So, Richard Veen now had a determinable time to spend in prison: twelve years. It was a stiff sentence, but it was also a top result. While in gaol, Veen became a model prisoner. He was a good worker and kept out of trouble, no doubt as a result of being free from alcohol and other drugs. When his sentence expired in 1986, Veen was released without any supervision, because the High Court did not fix a non-parole period. This meant, when the time was up, Veen was shown the door and left to his own devices. No one assisted him in finding accommodation. He wasn’t put into a work program or given help to secure a job. He didn’t have to report to anyone, was not required to take any medication, and was not obliged to abstain from alcohol or other drugs. Needless to say, Veen did the only thing he knew he could do for money and resumed his existence as a prostitute at Kings Cross. With it, he renewed his indulgence in drugs. Veen then did exactly what Justice Rath had so presciently feared. He murdered again, another client in identical circumstances. Again, Veen met his victim at Kings Cross. Again, the fatal, frenzied stabbing occurred in the victim’s apartment. Sad to say, but Justice Arthur Rath had been vindicated in handing down his original sentence. This time, there were again no mitigating features in Richard Veen’s defence other than mental impairment. There was no need for a trial. The Crown accepted a plea of guilty to manslaughter based upon diminished responsibility, but there was a catch. The Crown submitted that a life sentence was appropriate. The sentencing judge was Justice David Hunt. While the identity of the judge should seldom be of any relevance, it is interesting to note Justice Hunt was senior counsel assisting the 1978 Nagle Royal Commission into New South Wales Prisons. In short, he was a highly experienced and outstanding judge. Known also for his compassion, Justice David Hunt nonetheless imposed a life sentence. There followed an unsuccessful appeal against the sentence to the New South Wales Court of Criminal Appeal. Next step, again, was the High Court. Because Richard Veen had already appeared before the High Court, his two appearances and their outcomes from here on would be assigned the highly imaginative titles Veen No. 1 and Veen No. 2. Now appearing for Richard Veen at the High Court were Peter Hidden QC and Stephen Norrish QC, who led Catherine Lyons. All three counsel were serving Public Defenders. Both leaders would later become judges. Their experience with young Aboriginal peoples’ legal problems dated back to the beginning of their highly successful careers, and was a bonus. They also dedicated years to the establishment and development of the Aboriginal Legal Service at Redfern, in Sydney’s inner city. Redfern was the home of the Empress Hotel where Aboriginal persecution by police had become an industry. Ms Lyons AM, the first female Public Defender, formerly a solicitor, had extensive legal experience in Papua New Guinea. She was noted for her dedication to the oppressed. Together, these three made a solid team. The Crown was represented by Rodney N Howie QC, later to become Justice Howie, and his junior was Robert Keleman, who would also become a judge. Both counsel for the Crown were also former Public Defenders. Thus, the bar table of the High Court that day in Canberra was anything but a Public Defender–free zone. Despite the skill of Veen’s legal team, the High Court decided, by a four-to-three majority, that the life sentence be upheld. Given the closest possible majority decision, Veen had almost succeeded again before the full High Court of Australia. With a life sentence at stake, however, there is no prize for second. Although it was a sentence appeal, it was considered important enough that all seven judges of the High Court sat and all granted special leave. There was then a full hearing. In a joint judgement, the four-judge majority who rejected Veen’s appeal were Chief Justice Sir Anthony Mason and Justice Gerard Brennan, who one day would be Chief Justice himself, with Justices Daryl Dawson and John Toohey. In favour, but in the minority, were Justice Ronald Wilson, Justice William Deane, destined to become governor-general, and Justice Mary Gaudron. Each of the minority judges delivered separate judgements. There could not have been a closer division than four to three. If one of the four in the majority had decided otherwise, Richard Veen’s fate would have been remitted to the Court of Criminal Appeal for a third time. The outcome of that hearing is impossible to predict. It would have all depended on the composition of the state court on the day. In Veen No. 2 the dissenting minority foreshadowed a different course to the then High Court resentencing in Veen No. 1. For reasons which became academic, the minority favoured remitting the matter of sentence to the Court of Criminal Appeal for determination. This is how it should always be.

* * * On 22 June 1990, three months after Rodney Mallard was released from the Victorian prison system, he killed again. Like Veen, there were striking similarities between the murders of Miss Florence Jackson and Mallard’s latest victim. The homicide took place at the Sky Rider Motor Inn on the Great Western Highway, near the Explorers’ Tree tourist attraction at Katoomba—the town where Miss Jackson had lived. He had strangled his victim to death, as he had Miss Jackson. By way of difference this time, he placed a bunch of carnations on the chest of the dead body. Mallard had met his victim through a late-night, match-making radio program on 3AW Melbourne. The selection of the same location, so many years apart, is a strange manifestation of Mallard’s deeply troubled mind. The greatest tragedy was for the two ladies who were innocent victims, and the loss felt by their families. In the 1992 trial, the Crown Prosecutor Barry Newport QC introduced ‘similar fact’ evidence. This was a rare course of action. What the Crown was attempting to prove was Mallard’s habitual need to kill. His conduct before the killing of Miss Florence Jackson and during it uncannily matched the bizarre sequel sixteen years later. The Crown relied upon Makin versus The Attorney-General for New South Wales, a decision of the Privy Council in England as far back as 1894. That was before Federation and, thus, well before the existence of the High Court of Australia. In those days the Privy Council was the ultimate appellate tribunal for the colonies. The English equivalent was the House of Lords, now called the Supreme Court. Mr and Mrs Makin were charged with murdering a child whom they had taken in on the pretence that they wished to adopt the child for a small sum, and whose body was found buried in a yard. Evidence was admitted of the finding, on the premises occupied by the accused, of other children’s bodies received on similar representations. Thus, the discovery of the other bodies revealed a repetitive pattern, demonstrating the Makins’ addiction to killing young children. The similar facts evidence was designed to exclude any suggestion of coincidence. It has also been referred to as ‘tendency’ evidence. Due to changes in the law, it is much easier to introduce tendency evidence today. John Makin was hanged for the murder of twelve babies in his care. Sarah, his wife, served nineteen years in gaol for the same crimes. In the case of Mallard, the Crown, at this time, was not permitted to call evidence merely to prove an accused person is likely, from their criminal conduct or character, to have committed the offence for which they are being tried. It can, however, sometimes be used in rebuttal of a possible defence. The sole test of admissibility was probative value and the judge must weigh the value of the evidence against it being prejudicial to the accused. In that respect, the trial judge had a wide supervisory discretion. Justice Peter Newman allowed Mr Newport to lead that evidence in the presence of the jury. Mallard’s prior murder, also at Katoomba, was the alleged ‘similar fact’. Mr Newport used the two

murders to show Mallard was unable to control the irresistible sexual impulses which led him to homicide. The urge Mallard felt causing him to kill in 1974 was, based on similar facts evidence, the same urge he felt when murdering in 1990. Like Veen, should Mallard find himself in similar circumstances, he will, most likely, kill. And he did. On 16 October 1992, Justice Newman sentenced Mallard to gaol for the term of his natural life for the second Katoomba murder. The judge said ‘only old age or infirmity’ would stop Mallard from carrying out his homicidal desires. He then uttered the phrase which had been made law three years earlier: ‘never to be released’. This was only the third time it had been used since its introduction. That sentence literally meant Mallard would die in gaol. Mallard had still not turned forty. He recognised the melancholy of his situation when he gave an interview to the Sunday Telegraph newspaper on 28 August 1994. Having been dubbed the ‘Lonely Hearts Murderer’ by the media at the time of his trial, Mallard told the interviewer, pathetically, he would rather have been hanged.

* * * Some mental conditions presently have no cure. Having a mental condition or illness is always a misfortune. Even if induced by drug and/or alcohol abuse, mental illness requires medication and treatment. In the sentencing context, such illness must be dealt with logically and fairly—having a mental impairment can no more justify a longer sentence than where the offender is paralysed. Sometimes, however, an illness will reduce the sentence. Diagnosis of mental impairment is difficult. There is no scientific procedure, such as a blood test or brain scan, to analyse the subject. Much depends on the truthfulness and accuracy of the history given by the patient. As Justice Murphy astutely observed in Veen No. 1, in some cases, it may sometimes be more in the client’s interest not to rely on psychiatric evidence and mental impairment as Veen did. Such psychiatric evidence risks an element of preventative detention creeping in, or a gaol sentence increasing what would otherwise be the sentence which, objectively, determines the gravity balanced with the subjective features. It is ethical and impeccable to tender and rely upon psychiatric evidence which is sympathetic and mitigating, but perfectly proper to withhold the reverse. These are, after all, adversary proceedings. Deciding what to do with offenders who, at the expiration of their sentences, still remain a threat to the community is a long-standing and continuing problem. One sure way of protecting the public is keeping offenders in gaol beyond the end of their sentence. Then the question arises, what is the point of fixing sentences for psychotherapy and the like in the first place? Is this not just the prohibited ‘preventative detention’ under another name? In Mallard and Veen there were absolutely tragic sequels after release from gaol. Both men again committed almost identical criminal homicides. That supports the correctness of the sentences of penal servitude for life imposed by the trial judge. In Mallard’s case, a life sentence was mandatory following conviction for murder. Although the expert evidence he called was highly impressive, his defence of diminished responsibility had failed. In Veen No.1, the defence succeeded and the conviction was for manslaughter only, but Justice Rath exercised his discretion and still imposed the maximum of life imprisonment. The High Court substituted twelve years and did not specify a non-parole period. Shortly after Veen’s second trial, legislation was introduced reducing the maximum sentence for manslaughter from life to twenty-five years. This was no accident, and it raises interesting technical legal questions. Had Veen been sentenced for the second homicide after the amendment, Justice Hunt would have been constrained by the 25-year maximum. The change, subsequently, to twenty-five years should be taken into account if ever Veen applies for release from his life sentence. It is also important to remember in this context that prisoners no longer earn remissions for good behaviour in New South Wales—they were abolished in 1988. That was another cruel piece of legislation in the name of law reform. Even without remissions, twenty-five years would have elapsed for Veen in 2011. The Veen/Mallard dilemma was resolved differently by the availability of sentence of imprisonment for the term of the prisoner’s natural life. That sentence was available and applied when Mallard was sentenced to life the second time. It was implicit with Veen’s sentencing. Release can never take place. Only death determines and concludes their punishment. Today, even where a life sentence is not imposed for murder, the days of release on licence after fifteen to twenty years in gaol are effectively gone. Sentences requiring time in gaol to be even double that are now frequent. These are, however, set by judges in open court and are subject to appeal. That is a preferable procedure than administrative decisions made essentially in private by boards and not subject to appeal. It must be conceded that killers who kill again after having served their time are as great an evil to the community as the serial killer. Plainly, their mental problems provide an explanation but not an excuse for their crimes. The enormity of the subsequent tragedy done to the victim is not diminished by the perpetrator’s mental condition. Surely a modern, sophisticated society can devise a better and safer remedy to deal with tragic cases like Veen and Mallard than putting them in gaol and literally throwing away the key for one and keeping alive hope for the other? The protection of the community is the paramount consideration, but detention in a secure hospital environment, as in the United Kingdom, would be a sounder solution. Sentences of preventative detention are available by statute in New Zealand, which means an indefinite period in gaol or custody. During its duration such an order protects the community by removing the offender from it. There must be a more humane way of dealing with offenders with very serious mental problems, rather than the ancient and unscientific definition of legal insanity and diminished responsibility and the M’Naghten rules, which explain but do not excuse mental impairment. Medication can provide a safe solution, but it is dependent upon the patient’s cooperation. That is easier to state than to enforce. There remains a need for legislative and judicial recognition of the legal consequences of mental impairment. In a civilised society it seems there remain at least three options to address the problem of protecting the public where there is a high risk of re-offending. They are: 1. Restore capital punishment; 2. Detain the offender in a maximum security prison until the offender’s life ends; and 3. Offer humane treatment until it is safe conditionally to allow the offender back into the community. Perhaps the bottom line is, there is no bottom line. In 2013, the New South Wales Attorney-General, Greg Smith SC, a highly experienced silk before and after politics, introduced legislation for five-year extensions of sentences already served by violent offenders. This was directly aimed at protecting the community. Queensland has similar legislation. The approval of the Supreme Court was required for such orders. The real sting was the number of five-year extensions is unlimited. This approach drastically infringes the centuries-old rights of man in a free society. As with the reintroduction of capital punishment, one suspects this legislation enjoys strong community approval. With all homicides, the mood of the community remains overwhelmingly and unapologetically punitive and harsh. In a democracy, through parliament, the community makes the law. The courts are merely there to interpret and enforce it.

* * *

In Mallard and Veen there were two outcomes on a collision course: the protection of the community and the treatment of two men whose control of their own conduct was devastatingly impaired. The solution to this problem is not the court system. Much greater hope lies in a medical breakthrough in treatment at some time in the future. Not surprisingly, the community view of preventative sentencing has been extremely conservative and, indeed, punitive. Other than in Veen No. 1, juries are traditionally reluctant to mitigate criminal liability in horrible cases. The horrific, motiveless nature of the homicide, frequently of a loved one, obviously diminishes sympathetic considerations of the totality of the evidence. This is understandable and is open to the jury. While the outcomes are equally tragic, a stabbing is easier to understand by the jury than beheading or another bizarre act. In Mallard’s cases, he failed both—or is it three, if you include Victoria?—legal attempts to explain his criminal conduct. On the other hand, Veen succeeded in both of his. In the first, he persuaded a jury, but not the trial judge on sentencing. In the second, the Crown accepted his plea of diminished responsibility. The outcome for both, however, was not identical. Rodney Mallard’s sentence left him devoid of hope or a future. Richard Veen, however, had an opportunity, all because he was sentenced prior to the changes of 1989 and the reduced 25-year maximum sentence for manslaughter. He, therefore, had the legal right to have his sentence redetermined under the act. The highly experienced silk John Nicholson SC, a former Senior Public Defender and judge, took up Veen’s crusade. Mr Nicholson is now back in private practice and is known for taking on battlers with unpopular causes. Richard Veen certainly fitted the category. The Aboriginal Legal Service briefed Nicholson and he was finally successful in his application on behalf of Veen. Earlier, Justice Brian Sully had accepted Veen need not serve out a life sentence in custody, and set a fixed, non-parole period of thirty years, which is dated back to Veen’s arrest in 1983. This meant he was eligible for release in 2013. It took another two years to convince the parole board to release him. Less than a year before his sixtieth birthday, Richard Veen was finally a free man, albeit conditionally. He is under strict conditions and wears a monitoring bracelet. Should he break any of his conditions, he will immediately be returned to prison. For the first time since birth, Veen will not spend his birthday institutionalised. He’s seen the inside of orphanages, juvenile detention centres and adult prisons. The majority of his life has been confined behind high walls. During the years in gaol, Veen suffered some of the worst and most inhumane institutions available, notably the OBS at Long Bay. At the time of writing this book, Veen is living in a caravan. The humble abode he now finds himself in must be heaven compared to the hell he would have suffered inside. Sadly, Veen has cancer, but at least he is in more comfortable surroundings and is receiving treatment. The inescapable fact remains that two human lives have been lost to Richard Veen’s criminality. The retribution exacted by society has been heavy, and sanctions to ensure observance are strict. To paraphrase from Shakespeare, the quality of justice and mercy have finally come together. Hopefully, Veen’s twilight years will be calm and healthy. Sadly, Mallard remains devoid of all hope. The distinction between him and Veen is not the level of criminality or moral turpitude, but the level of mental impairment. Mallard’s bizarre devil worship diminishes his responsibility, but the law decided it wasn’t enough. Veen’s diminished responsibility was because of brain damage caused by alcohol. That was accepted. The fact of mental impairment in both Mallard and Veen was never in dispute, merely its level. Moreover, that level is incapable of being calculated scientifically or diagnosed like a broken limb. That too is a matter of human judgement, with all its frailty.

CHAPTER

11 Tim Anderson—Conspiracies and Bombings

In 1978, just as today, along with all major cities of the world, Sydney and other Australian cities were at constant risk of a terrorist attack. To illustrate my point, on 17 November 1966, a bomb exploded at Melbourne’s General Post Office; in May and June 1971 there were bomb threats made against the Qantas and Ansett airlines respectively; on 6 September 1972 two bombs exploded in George Street, Sydney, aimed at the Yugoslav General Trade Agency; in 1975 there was a bomb threat made against Woolworths and a letter bomb exploded in the Queensland Premier’s department on 19 November. Then, in 1977, bomb threats were made against Coles, and Sydney’s Boulevarde, Hilton and Noah’s Northside hotels. The one most people remember and, despite my list above, believe to be the first terrorist bombing on Australian soil, was the explosion outside the Hilton Hotel during the Commonwealth Heads of Government Meeting (CHOGM) on 13 February 1978, at around 1.40 am. The bomb had been planted in a public rubbish bin and exploded when the bin was emptied into a garbage truck. The two garbage collectors, Alec Carter and William Favell, were killed instantly. A uniformed police officer, Paul Birmistriw, who was on guard duty at the entrance of the hotel, died some nine days later of injuries he received. Shrapnel and debris was blown as far as 100 metres, injuring eleven others. Inside the Hilton, about a dozen Commonwealth leaders were sleeping, including our own prime minister at the time, Mr Malcolm Fraser, and the Indian prime minister, Mr Morarji Desai. Mr Fraser and the premier of New South Wales, Mr Neville Wran, requested an immediate mobilisation of the army, and almost 2000 troops descended on the city. Mr Fraser told journalists: ‘at this stage it must appear that the dead and injured are utterly innocent victims of a senseless act of violence’. The Sydney Morning Herald on 14 February wrote in the editorial, ‘Australia this week had a new and shocking experience … it was our first full taste of Twentieth Century terrorism.’ New South Wales Police special branch and the Australian Secret Intelligence Organisation (ASIO) conducted a joint investigation. Four months elapsed without any hint of a breakthrough. The bombing remained unsolved and a major international embarrassment, as well as a major tragedy. This was despite a $100,000 reward and a team of 100 full-time detectives. Enter 26-year-old Richard Seary. He told police a small Indian religious sect, the Ananda Marga, which meant ‘path of bliss’, was responsible. The Margis, as the sect’s members were known, had apparently been involved in worldwide protests for some years, demanding the Indian government release their spiritual leader, Pabhat Ranian Sarkar, or ‘Baba’ as he was called by the faithful, who was serving a life sentence for murder. Not surprisingly, the Free Baba Ananda Marga campaign was not a popular one in the community at large—it was very much a minority cause. Seary, nonetheless, convinced the authorities the Indian prime minister was the Margis’ target. The problem was, neither the police nor ASIO had any hard evidence. They didn’t have any evidence, other than Richard Seary. He was the best police special branch and ASIO could recruit. Seary became a member of the Ananda Marga in March 1978, having been a member of the Hare Krishnas from 1972 to 1974, before leaving the sect to go to England. He returned to Australia in 1976. The Ananda Marga was a small, unsophisticated group into which he was readily accepted. Welcoming Seary to the fold were long-time Margis Ross Dunn, Paul Alister and Timothy Anderson, all in their early to mid twenties. Tim Anderson was the sect’s publicity officer, writing copious media releases to inform Australians of their cause. Acting as a police informant, Seary soon earned his stipend and notified police of an upcoming bomb plot, involving Anderson, Alister and Dunn, to murder the New South Wales leader of the extreme right-wing National Front, professed Nazi Robert Cameron. ASIO and the special branch swung into action, obtaining warrants for phone intercepts and listening devices, and putting the three Margis under surveillance. The crime of conspiracy is very serious and is committed the moment a criminal agreement is entered into. Should the crime be prevented by efficient police work, the community benefits, but the actual crime is committed not when the deed is done but when the parties involved agree to make it happen. On the night of 16 June 1978, Alister, Dunn and Seary drove to the western Sydney suburb of Yagoona where Robert Cameron lived. On arrival at Cameron’s house, the police swooped and arrested Alister and Dunn. In their car, police found a homemade bomb. Anderson was also arrested at the Ananda Marga headquarters in Queen Street, New-town, an inner-west suburb. All three were charged with conspiracy. They were dubbed the ‘Yagoona Three’ by the media. The authorities interrogated each conspirator, which resulted in three verbals or, to put it more politely, unsigned police records of interview, admitting to planning to bomb Cameron’s house. There was no evidence linking the trio to the Hilton bombing. It appeared arresting the Yagoona Three for conspiracy was a situation of the authorities taking what they could get. If the police couldn’t get the three for the Hilton bombing, then they would get them for the conspiracy. According to Seary, Alister and Dunn were tasked to plant the explosive at the Yagoona house, while Anderson would produce a media release. He also said the three Margis told him they had ‘fixed’ the Hilton bombing, and Anderson had stated, ‘You’ve got to be willing to die for your ideology.’ Police claimed Dunn told them during his arrest, ‘We will never be stopped … Ananda Marga will cleanse the world.’ The Yagoona Three were committed for trial at a hearing in September, despite vigorously denying all of Seary’s allegations and the unsigned police records of interview, and saying they had only intended to graffiti Cameron’s house, not blow it up, hence the cans of paint. Alister and Dunn denied knowledge of an explosive device being in their car. The trial was set for 19 February 1979 before Justice John Flood Nagle. Prosecuting for the Crown was WH ‘Sandy’ Gregory QC, who led Anna Seeto, a very able prosecutor herself. Appearing for Ross Dunn was Public Defender Michael Adams. The forceful and impressive Marcus Einfeld QC appeared for Tim Anderson. Einfeld was an authentic leader of the Bar, having taken silk at thirty-nine. The scholarly and eloquent Ken Shadbolt represented Paul Alister. Shadbolt had a polished and persuasive forensic style, ideally suited to a case in which there was an inevitable conflict with top detectives. This was a very strong team. All three became judges. Given the quality of advocates on both sides of the table, the trial was hotly contested, but resulted in what could be considered a draw. The jury couldn’t return a unanimous verdict. It was not one eccentric juror holding out—they were hopelessly deadlocked: fifty-fifty. It was a

mistrial, leaving Anderson, Alister and Dunn to face a second trial on 9 July. For the second trial, before Justice Jack Lee, Bill Job QC led for the Crown. The defence side was without the formidable talents of Ken Shadbolt and Marcus Einfeld QC. Public Defender Sean Flood, a fighter of courage and commitment, replaced Ken Shadbolt at the last minute. He was a young man with an aggressive style. In later life, Sean Flood accepted an appointment as a Local Court magistrate. Substituting for an unavailable Einfeld was the courtly and elegant Sir Kenneth McCaw, a former Attorney-General, recently knighted and the recipient of the honour of Queen’s Counsel. Sir Kenneth was a brilliant parliamentary performer. His selection was considered to be a good replacement for Einfeld. He was also the Attorney-General who appointed me Public Defender some six years earlier. If Sir Kenneth had launched himself into a full-scale forensic attack on the police, as his instructions from Anderson demanded, it would have been an electrifying confrontation and, undoubtedly, impressed the jury. Unfortunately, it didn’t happen. As we found out, Sir Kenneth was a very experienced politician, but not so as a barrister. His worth in the trial was sadly overestimated. The tactic he employed was the discredited ‘confess and avoid’. This meant he would seek to gloss over the confession—the verbal—thus avoiding any confrontation with police or the trial judge, and pass the arrest off as ‘all a bit of a misunderstanding’. As if any jury would accept such a flimsy claim. It never worked, and it didn’t for Tim Anderson. It may even have given the jury the impression the wise Sir Kenneth didn’t believe the accused. This was not Tim Anderson’s defence, not his instructions, and not his sworn evidence. Sir Kenneth’s tactic didn’t extricate Anderson from his predicament, but buried him deeper. Sir Kenneth’s approach was in opposition to the instructions, not only of his client, but of each of the defendants. To each of the accused the unsigned confessions were acts of perjury. Although none of the three had a criminal record, on arrest, each behaved in an identical fashion. According to police, Anderson, Alister and Dunn all owned up and confessed to the crime. Then each, coincidentally, refused to authenticate the confession with his signature. Therefore, each confession was denied authenticity. As was the custom in the seventies, the perennial question arose, yet again: Why would three cleanskins be so cooperative as to make a full confession yet, at the same time, firmly decline to authenticate it with a signature? This was the principal trial issue. Michael Adams, who was still representing Dunn, doggedly pursued the verbals. One valiant exchange between Adams and Justice Lee highlighted the drama. It ended with the judge’s taut observation, ‘when [police] are held up as perjurers, there is no room for niceties’. And don’t we all know it? The prejudicial pall of the Hilton Hotel bombing hung over the trial. The voluble Seary claimed that, while driving to Yagoona, Alister and Dunn had admitted being the Hilton Hotel bombers to him. But he did not bother to tell the police that momentous news until much later, well after the arrests. Seary’s reason was he was unhappy with the way police treated him and he decided to drip-feed them information. That decision provided the basis for a strong attack on Seary’s credibility. The defence resolved that, on balance, it was better to make capital of it, even though this allowed the jury to hear otherwise inadmissible prejudicial evidence. Experienced counsel were divided on the wisdom of introducing the Hilton prejudicial evidence. Seary, however, was a vital target. They opted to risk it. The defence answer to the prosecution was stark but simple: Seary was an absolute liar. Crown prosecutor Bill Job QC made much of the introduction of the Hilton bombing and, opportunistically, put the accusation straight to all three defendants during cross-examination. His questioning highlighted, unfairly, the highly emotive non-issue of the still unsolved Hilton bombing. Anderson, Alister and Dunn held their own and denied any involvement. Justice Lee was a fair judge. He did not exhibit a bias for either the Crown or defence, but set out the facts plainly for the jury to decide. During his summing up, Justice Lee did instruct the jury that the confessions called for support from other evidence and should not be given too much weight. The jury swiftly returned from their deliberations and found all three guilty of conspiracy. Justice Lee then imposed upon each young man a sentence of sixteen years penal servitude. Despite their prior good character, the judge declined to set a minimum term. In conclusion, Justice Lee praised the police. Not a good day for the Yagoona Three. Each of the men showed great fortitude in their adversity. Perhaps their public relations presentation could have been a shade better. For example, after being convicted, they defiantly asked Justice Lee to impose life sentences upon them. Their taunt might have been bold, but it was hardly wise. The challenge of Anderson and Alister for the judge to impose maximum life sentences was not arrogance or rebellion, but a valiant protestation of innocence. Brave yes, but also foolhardy. It wasn’t the smartest of taunts, not that any taunting of a trial judge is smart. My first involvement with any of the Yagoona Three came when I appeared for Ross Dunn in the Court of Criminal Appeal in October 1980. That was the year in which I took silk. He impressed me then as an earnest, softly spoken young man, desperately unhappy about finding himself, although innocent, in gaol serving a long sentence. At this time I also, naturally, briefly met Tim Anderson and Paul Alister. Anderson, particularly, struck me as an intelligent and strong-minded type of person. Like Dunn, Anderson and Alister were unhappy with their lot, but also determined to prove their innocence. They were all handling the circumstance, not of their making, as best they could. Sadly, the Court of Criminal Appeal dismissed their appeal.

* * * Of course, there were still questions about who bombed the Hilton. The community and the media all wanted answers. The authorities, however, believing Seary’s claims that Anderson, Alister and Dunn were responsible for the attack on CHOGM, were content with having the Yagoona Three behind bars, even if only for conspiracy. As time passed, more and more theories began spreading as to what might have really happened that warm February morning. There were conspiracy theories on top of conspiracy theories. One of the strongest suggested ASIO and special branch had planted the bomb themselves, to then ‘discover’ and defuse, as a publicity stunt to justify their existence. If so, it went horribly wrong. To try to sort fact from fiction, a coronial inquiry was held in September 1982, just over four and a half years after the bombing. The inquiry heard evidence from a range of people, including the Crown’s star, Richard Seary. Based on the evidence, particularly Seary’s, Stipendiary Magistrate Norman Walsh found a prima facie case of murder existed against two members of Ananda Marga, Ross Dunn and Paul Alister. Tim Anderson was not mentioned. Mr Walsh then, prematurely, ended the inquiry. No charges were ever laid against any of the Yagoona Three from the coronial findings. As an aside, so brilliant was Michael Adams’s cross-examination of Richard Seary, the star Crown witness, at the Hilton Hotel bombing inquest at Glebe that it was included in James Glissan’s collection of great cross-examinations, Cross Examination – Practice and Procedure – An Australian Perspective. It must be said there were never any half measures involving the future Honourable Justice Michael Adams QC. Adams was a rising star at the Bar and this trial proved it. He did not have the years of experience of Bill Job QC, but he certainly matched his opposite number in intellect. Adams’ style was robust and forceful yet, at the same time, observed the etiquette of the Bar. Apart from the conspiracy theories, and not because of them, there was a strong movement calling for the release of Anderson, Alister and Dunn. The trio’s supporters ranged from politicians, celebrities and the like, to the man on the

street. Supporters believed an injustice had been done to the trio. At the least, the act of violent terrorism seemed at odds with the beliefs of the Ananda Marga. The Ananda Marga were protesters and not criminals. The sect continues to this day and believes in yoga and meditation, that we are all part of a collective consciousness, and advocates a world of justice, security and peace for all. Hardly the basis for a radical extremist group. It’s worth noting that Ananda Marga had been on ASIO’s radar a year before the bombing and, while recommending the sect be banned, ASIO found no evidence of extremism or of plans to bomb CHOGM prior to Seary’s allegations. At the time, Ananda Marga were seeking publicity for their unfashionable cause, to free their religious leader from an Indian gaol. Dunn, Alister and Andersen then appealed to the High Court of Australia in 1983. Despite having, again, the great Ian Barker QC, the five judges on the bench dismissed the appeal, delivering their decision in 1984. One of the arguments for appeal was the trial judge had erred in law by setting aside a subpoena directing ASIO to produce all files relating to Seary’s involvement. The judges inspected the ASIO documents and, with only Justice Lionel Murphy dissenting, held that none of the documents were relevant to the issues at the trial. The contents of the documents were marked secret, and have never been revealed. It was a crushing blow. The three young men now seemed destined to see out their sixteen-year gaol sentence.

* * * While the Ananda Marga’s cause to free their leader was still relatively unknown to the populace, the movement to free Anderson, Alister and Dunn, conversely, gained huge momentum. Supporters held public protests, appeared on news outlets, and kept the Yagoona Three in the spotlight. Whether it was due to this public outcry of injustice, or discoveries made behind the scenes, the New South Wales Attorney-General Paul Landa made a surprising, but welcome, announcement. On 7 March 1984, he ordered a judicial inquiry into Anderson’s, Alister’s and Dunn’s conspiracy convictions. It was a sensational decision. The hopes of the Yagoona Three were now revived when all had seemed lost with their failure in the High Court, the final court of appeal. Their fate now rested not with a jury of twelve or an appellate court of three or five judges, but with one man as appointed by the Attorney-General. That man was the Honourable Justice James Wood, a very newly appointed judge of the Supreme Court of New South Wales. He was forty-three. This was the beginning of the distinguished judicial career of Justice Wood spanning over twenty years on the Supreme Court bench, seven of which he was Chief Judge at Common Law. Justice Wood, with a soft voice, was possessed of unfailing courtesy and equanimity, while also presiding with an impressive firmness and authority. The inquiry would be heard in No. 6 Court at the Darlinghurst Court complex. So, four years after having unsuccessfully represented Ross Dunn at the Court of Criminal Appeal, I was now selected to represent Tim Anderson at the inquiry. Anderson remembered me from the appeal, but was hesitant in taking on, yet again, another barrister to represent him. He needed lots of persuasion to accept me as silk, along with my junior, Jim Glissan, and solicitor, Michael d’Arbon, as his lawyers for the Wood Inquiry. There would be no legal cost to him or his family—the government would meet the legal cost of all three young men, indeed, the legal costs of everybody involved. Few could blame Tim Anderson for his reluctance to accept legal aid and lawyers. He was probably more intelligent than most of the lawyers, myself included, and he knew the case backwards. The legal system, police, judges and lawyers through every step, including the High Court lawyers, had failed him. Given the circumstances, Anderson’s lack of confidence in our legal system could hardly be characterised as unreasonable. He, in fact, wanted to represent himself. To support his case he produced the following chart, showing the range and quality of legal representation up to and including this point. Anderson’s list includes, with James Glissan and myself, two chief magistrates, two city coroners, a police prosecutor who became a magistrate, a Knight of the Realm, two Chiefs Justice of Australia, a president of the Court of Appeal, a judge of appeal, two Federal Court judges, two Solicitors-General, two barristers who became High Court judges, a half-dozen Supreme Court judges, and double that for the District Court bench, and an array of eminent silks.

Anderson was, and is, highly intelligent and articulate, and he certainly knew his defence well enough to have made a capable advocate, despite lacking a legal degree. But as much as Anderson would have preferred to appear for

himself, there were logistical problems. We would be subpoenaing, among other documents, all material being held by ASIO and Special Branch in relations to the Ananda Marga and the conspiracy against Robert Cameron. Due to the complexity and the form of the material produced, it was simply not practicable for Anderson to be available to review the documents and, therefore, to appear for himself. After all, the Yagoona Three were still serving their time at Long Bay. Ultimately, Tim Anderson agreed to allow James Glissan, Mike d’Arbon and me to present his case. He was a good client. His analysis and contribution to the conduct of his case was invaluable. His elderly parents, who were strongly supportive of their son, travelled from Victoria for the inquiry and lived in a flat at Manly, on Sydney’s northern beaches, for its duration. When the Wood Inquiry began, the Yagoona Three were brought to and from Darlinghurst Courts in a prison van with other prisoners. As the inquiry proceeded, the trio qualified for, and obtained, work release. They then travelled, unescorted, by bus to and from the Metropolitan Training Centre at Long Bay, the former women’s prison. Justice Wood graciously gave Anderson, Alister and Dunn his permission to sit in the comfortable chairs in the empty jury box. They behaved impeccably. They had a six pm deadline to return to gaol using public transport. After court most days they spent the time at my chambers consuming litres of apple juice, not my preference, but much valuable work was done during those conferences. Jim Glissan and I conferred with Marcus Einfeld QC, Michael Adams and Tom Molomby on virtually a daily basis, including weekends. Einfeld, Adams and Molomby appeared for petitioners—as they are referred to in these hearings —Ross Dunn and Paul Alister. We usually met in Mr Einfeld’s chambers in Martin Place, the centre of Sydney’s central business district, discussed matters long into the night and planned tactics for the next day. All-day Saturday meetings were not unusual. Marcus Einfeld was a fierce advocate and strong leader. Such was his dedication and ambition, he would go on to be a justice of the Federal Court of Australia and of the Supreme Courts of New South Wales, Western Australia and the Australian Capital Territory. He would also become president of the Human Rights and Equal Opportunity Commission between 1986 and 1990. Einfeld retired as a judge in April 2001, but the tranquillity of retirement was shattered when he was gaoled for perjury: he had lied in an attempt to avoid a traffic infringement for speeding. Even so, Marcus Einfeld’s legacy and vast achievements remain, particularly his leadership during the first Yagoona Three trial and now the inquiry. Einfeld, Adams and Molomby received close to appropriate fees for their magnificent legal aid work. Glissan and I were fiscally more attractive propositions for the government—we simply continued to receive our salaries as Public Defenders. During the inquiry, Michael Adams even travelled overseas to pursue evidence. He had been involved in the case from the committal proceedings, to the two trials, the Court of Criminal Appeal, the High Court and now the inquiry. Other than the petitioners, Michael Adams’ knowledge and history was also vital in our preparations. Those Public Defenders who had previously appeared for the trio, such as Ken Shadbolt and Sean Flood, often called in to say hello. At the start of the inquiry, Justice Wood made a crucial early ruling: he would not allow the inquiry to be a rerun of the two earlier trials, he would only hear new evidence. The judge’s objective was not to review the two trials, but evaluate the ‘new’ evidence. This meant the disputed police records of interview would not be given again. The ruling meant our clients would have no evidence that fell within the framework to give. That did not please them. As would be expected from wrongly convicted men, all they wanted to do was again publicly proclaim their innocence. James Glissan and I reasoned this decision was not a setback, but a positive development, as it removed any prospect of the judge hearing their evidence and not accepting, or even rejecting it. Justice Wood would have gained little or nothing from observing the demeanour of the witnesses. Experienced detectives being cross-examined by Einfeld, Adams and me would add little to assist the judge either. This ruling also suited the wily tactician, Frank McAlary QC, who appeared for the detectives concerned. Their virtual ineligibility to give evidence greatly reduced the possibility of a negative finding against his clients, the arresting detectives. His brief was not to support the convictions. After all, the Yagoona Three had served almost seven years. The task of keeping them in gaol was enthusiastically performed by Michael Finnane QC for the Crown. McAlary’s primary job was to avoid an adverse finding against the officers concerned. And an adverse finding was a real possibility with a judge as independent as Justice James Wood. We, as counsel for the petitioners, were not seeking to lay blame or be agents of a witch hunt, but to seek freedom and vindication for our clients. The evidence presented at the trials was, however, documented and available to Justice Wood. Several times I was at pains to ensure this would not operate to the detriment of the petitioners. The judge had before him the transcripts of both trials, but it is never possible to assess the credibility of a witness solely by reference to the transcript. Without Justice Wood’s decisiveness the inquiry could literally have dragged on for a year. It would have cost the state, which funded all legal representation, millions more. The judge quickly assessed the issues and ensured proceedings did not get out of control. That was no easy task given the overcrowded bar table, not populated with timid or modest advocates. Justice Wood did not wear a wig or civil or criminal robes. Nor did counsel wear robes. Nor was the judge preceded into court by his tipstaff. Although he was a Supreme Court judge, he was sitting in the more humble office of Justice of the Peace. Having said that, it was really a royal commission in all respects but name. That technicality was to meet the rarely used terms of the legislation, which allowed the inquiry to be convened pursuant to Section 475 of the Crimes Act. A constant visitor to the inquiry was state Labor MP and Member for Illawarra, George Petersen. Mr Petersen, a noble crusader for lost causes if ever there was one, had campaigned tirelessly for years for an inquiry. Many credit his efforts with the decision of the Attorney-General, Paul Landa, to order the Wood Inquiry. It must also be said the decision of the Attorney-General to order the inquiry was a courageous one. Malcolm McGregor QC was an inspired choice as counsel assisting the inquiry. For those who remember, he bore a striking physical resemblance to the British film star Alistair Sim. If you have no idea who I’m referring to, a more contemporary, albeit cartoonish, reference would be a healthier looking Montgomery Burns from The Simpsons. This comparison is in no way meant as an insult or reflection of Mr McGregor’s personality. Far from it. Through the inquiry, McGregor’s stance, although neutral, occasionally revealed he found aspects of the police investigation troubling. He was a Crown Prosecutor who was on special duties assisting Solicitor-General Mary Gaudron QC. She would become the first woman to be appointed to the Bench of the High Court of Australia. The law offers no greater distinction than an appointment to that court. Justice Gaudron’s claims to legal distinction were set in stone long before her elevation. As counsel assisting the judge, Mr McGregor determined the order of witnesses and the pace of the inquiry. Any judicial inquiry can only be effective if all relevant material is placed before it for evaluation and judgement. McGregor left no stone unturned. He and those assisting him used, as their chambers, the jury room adjoining No. 6 Court, where the hearing took place. He shared the room with Wayne Haylen, later to become Justice Haylen, and his secretarial staff. The secretary of the inquiry, who sat in the courtroom in front of the judge in the associate’s position, was a young

man named Robert Hulme. He was at the beginning of his legal career. And what a career it was. He became a Crown Prosecutor, Public Defender, District Court judge, and then Justice RS Hulme of the Supreme Court. Facilities for counsel, witnesses and the public at Darlinghurst Court are virtually non-existent. The fine old Colonial building has simply run out of space. In the whole complex there are two toilets, and no interview rooms or refreshment facilities. Judges and Crown Prosecutors, however, have their own excellent chambers. Marcus Einfeld, who was sometimes referred to as the ‘field marshall’ of the petitioners’ legal team, imperiously commandeered the witness room of the next-door Central Criminal Court. We moved in all of our files and books and affixed on the door an unauthorised sign asserting our claim. It didn’t last. Court authorities retaliated by not only removing the sign, but the door with it. This bureaucratic act produced a letter of complaint from Einfeld to Chief Justice Sir Laurence Street. An unsatisfactory compromise was reached: we were allowed some storage space for our files and transcripts, but the location was on the other side of the court complex, well away from No. 6. The most comfortable conferences, if not the most productive, were over gourmet schnitzel meals at the Balkan Restaurant on the other side of Taylor Square in Oxford Street, presided over by Michael Adams. The subpoenaed material, which had been denied to the petitioners during their trials, revealed what ASIO had on the Ananda Marga: not a lot. It may grieve my former clients for me to say it, but Ananda Marga was never a powerful or influential group and in Australia it was tiny. As ASIO and special branch tapes revealed to us during the Wood Inquiry, the group was spectacularly overrated. While there were allegations, none were strongly supported with reliable evidence. With the subpoenaed files from ASIO and special branch, more was being learned about the Crown star, Richard Seary, and his involvement. What was learned was, basically, Seary was a narcissistic liar. He had, initially, blamed the Hare Krishnas for the bombing, but later switched to the Ananda Marga. At the time of the inquiry, Seary had conveniently relocated to England and declined an invitation to attend the inquiry. Seary revelled in the fact that, being out of our jurisdiction, he could not be compelled to appear. It was of crucial importance to persuade Justice Wood to reject Seary as a witness of truth and reliability. I began my submissions recalling the eighteenth-century advocate Curran, who is reputed to have dismissed the evidence of a police informer with a florid passage along these lines: ‘I conjure you, suffer him not to fake an oath; the hand of a murderer should not pollute the purity of the Gospel, if he swear, let it be upon the knife, the proper symbol of his profession.’ Florid but fair. Dealing with this very case in the High Court of Australia, Justice Lionel Murphy said of Seary, ‘The record shows that Richard Seary … must be one of the most unreliable persons ever presented as the principal prosecution witness on a charge of serious crime.’ I described Seary’s refusal to attend the inquiry as ‘craven cowardice’, and condemned his attempt at ‘clandestine correspondence’ with the judge, adding, ‘the infamy of this man, Seary, and his consequences … chills the blood of decent people’. In setting out our case I explained, The evidence in this inquiry discloses that these young men have suffered one of the truly spectacular miscarriages of justice in our legal history … the full story was not told because the inspection of certain material [referring to the ASIO files] not being allowed … to allow these convictions to stand on the evidence before Your Honour, it would be an affront to the community’s sense of justice. The evidence compels these findings: first of all, that the trial miscarried because relevant and highly significant material relating to Seary was wrongly withheld from the petitioners … Seary was presented by the Crown as a credible witness. Fresh evidence at this inquiry renders that presentation as untenable … the cross-examination of the petitioners was improper … [the Crown case] falls into three compartments: the evidence of Seary, circumstances and inferences said to arise, and the alleged verbal admissions … if any of these compartments falls, or Your Honour regards it as tainted by doubt, that is the end of the matter and it would be unsafe to allow the verdicts to stand. In his book Free Alister, Dunn and Anderson, Tim Anderson quoted a submission of mine about Seary: ‘not only able to lie but he was able to lie convincingly. He could take an acorn of truth and turn it into an oak-tree of falsehood.’ In retrospect, addressing a judge and not a jury, that was probably a bit over the top. In common with Marcus Einfeld and Michael Adams, however, I found it difficult to maintain objectivity in the face of what appeared to be an injustice, which wrongly kept three innocent young men of good character in gaol for seven years. We prepared for the Christmas law vacation when, in a shock development, Richard Seary was funded by the New South Wales government to return to Australia to give evidence. Seary was a cross-examiner’s dream. To be fair, it was never going to be an equal contest. Each time, cross-examination pitted an experienced barrister against a selfconfessed garrulous deceiver with mental problems. On his own admission, Seary was a liar who inhabited a fantasy world. The car which Seary told Alister and Dunn he had borrowed, unbeknown to them, had been stolen. Alister and Dunn, with Anderson, were set up by Seary. It was Seary who convinced the others to target Robert Cameron under the deception they would spray paint slogans over Cameron’s house. Therefore, to Alister and Dunn, the purpose of the Yagoona trip was to spray graffiti on a house. Childish? Yes. Vandalism? Certainly. A major violent crime was never on their agenda, at least, not in the minds of the two Margis. Seary used this opportunity to plant the homemade bomb in the stolen car, having alerted the police, who elaborately tracked the car to Yagoona, where others lay in wait. Cracking Seary in the witness box was good theatre, but it was not the main game. The centrepiece of the Crown case against Alister, Dunn and Anderson was always the disputed verbal admissions. From the outset, the prosecution realised relying upon the word of Seary alone was building a house of straw. It was surprising, then, that it allowed him to become the focus at the inquiry. The Crown erred in allowing the credibility of Seary to become the focus, instead of highlighting the army of police to whom the admissions were allegedly made, or who claimed they were present and were, therefore, witnesses when they were made. It was the police evidence, not Seary, that Justice Jack Lee featured during the second trial. In New South Wales State Parliament, George Petersen MP, not a lawyer, shrewdly analysed the case as a layman and lashed out at the obvious injustice. Mr Petersen was a top orator. As recorded by Hansard on 7 March 1985 in the grievance debate, Petersen rose in the Legislative Assembly and stunned the chamber by saying: The case of the Ananda Marga trio, sentenced in 1979 to 16 years’ jail for conspiracy to murder Nazi Robert Cameron, shows that it is only a short step from using such tactics against criminals to using them against people involved in political activity. In the case of the Ananda Marga trio the recent Section 475 inquiry has demonstrated that the chief Crown witness, Richard Seary, is a pathological liar, a dangerous lunatic, and a contemptible psychopath who will do and say anything to gain attention. Whilst his evidence is worthless, the real problem is that it is supported by verbals concocted by five police officers … In the High Court in 1977, Mr Justice Gibbs warned juries that sometimes police fabricate evidence to secure conviction of people they believe to be guilty … One must be grateful to counsel for the Crown for publishing these verbals in full. Detectives Burke and Gilligan have Ross Dunn confessing: ‘We will never be stopped. Ananda Marga will cleanse the earth.’ Detectives Godden and O’Brien invented comments from Paul Alister such as: ‘Nazi racists do not belong here. You have prevented us from doing this but others will follow.’ Detective Roger Rogerson has the highly

intelligent political analyst, Tim Anderson, using this language, ‘It will not stop here. What was going to happen tonight is the only justice Cameron and his kind deserve.’ Rogerson’s inventive genius was demonstrated particularly when he had Anderson’s reply to the advice that he would be charged with conspiracy to murder recorded as ‘(No reply in English – outburst in foreign language.)’ Counsel for the trio, Marcus Einfeld, QC, and Bill Hosking, QC, pointed out that in none of their evidence and in none of their admitted writings and words are there any expressions remotely reminiscent of the alleged confessions. One bizarre example is that Dunn is said to have boasted of being reborn in the Ananda Marga—a concept which is western Christian and quite foreign to Ananda Marga ideology. Regarding Anderson, Mr McGregor commented that a more articulate response might have been expected from the Ananda Marga’s publicity officer … It is pointed out also that whilst all three men have different personalities from one another, there are nine phrases that are found in two or more confessions, as if all the confessions had a single author or group of authors. Who was the author, or were the authors? … Counsel raise five other points regarding these particular confessions: first, that each readily confessed notwithstanding prior adherence to a policy of not talking to the police; second, that no confession provided any information that the police did not know already; third, that each defendant spoke admitting guilt, and then lapsed into uncooperative silence; fourth, that each was interviewed at two different places, hours apart, and spoke the same way each time; and fifth, that each confessed boastfully to an adherence to the terrorist cause and then spent the next seven years denying it … In short, although counsel for the trio do not say so, the conviction was a frame-up. It is quite pertinent that their submission should ask how the convictions can be upheld when the Government stated last November that it is about to outlaw such confessions. I have no illusions that the recording of confessions by electronic methods, or a provision that a witness of the accused’s choice must be present for a confession to be legal, will totally outlaw such practices as those so well analysed by Messrs McGregor, Einfeld and Hosking.

* * * Michael Finnane QC, in his closing address to Justice Wood, criticised the petitioners for failing to give evidence at the inquiry. This was hardly fair, given the judge’s clear indication he would only receive fresh evidence. I felt obliged to take the unusual step of interrupting Finnane’s closing to point this out. An acrimonious exchange resulted and was brought to an end by the judge firmly observing that he was quite capable of giving appropriate weight to the various segments of the evidence. And he was. The inquiry was not a court and, thus, the hearing was not adversary proceedings. In any case, the petitioners had nothing to fear from going into the witness box. They relished the idea. Each had given evidence at the two trials and had been trenchantly cross-examined. Indeed, the cross-examination of Tim Anderson by Bill Job QC in the second trial was the subject of an appellate challenge which drew criticism by the Court of Criminal Appeal. Through all of their travails, the Ananda Marga men never had a single victory in a courtroom. When the evidence and addresses concluded, Justice Wood simply ‘retired’, as the saying goes, to write his much awaited report. And he did that in his own time. Whatever the finding, there was no appeal process available. It was a blend of the due process of executive and judicial function. The independence of the judiciary ensured the impartiality of the process. In due course, Justice Wood’s report was formally submitted to the governor, but in reality to the government, which tabled it in parliament. As a result, on 15 May 1985, Ross Dunn, Paul Alister and Timothy Anderson were released with a pardon after six years and eleven months in gaol, but not exonerated or adequately compensated. That was not the judge’s fault, it was the decision of the government of the day. In his findings, Justice James Wood ruled that Seary had lied on at least fifty occasions. He described Seary as ‘a person of considerable intelligence and imagination who craved recognition and status and who was willing to exaggerate, bend the truth and lie in appropriate circumstances’. At the end of the day, the police did not come in for the criticism which was well and truly open to the judge to make. Wood did, however, state: While some criticism can be levelled at the police in hindsight for an inadequate investigation of Seary before his recruitment, I am left in no doubt as to the bona fides of the officers who were concerned in the inquiry, and who made the necessary decision to operate him in the field. I am satisfied that police engaged in the shadowy area of intelligence have to work with the personnel and inside sources available. In very few cases will a potential informer or non-service agent be a person of unblemished character. Paul Alister, Ross Dunn and Tim Anderson were awarded $100,000 each in compensation, which, in my opinion, was ridiculously inadequate for what they had gone through. Alister and Dunn moved to an Ananda Marga community in Queensland, and Anderson pursued a PhD at Macquarie University. Tim Anderson’s own book, Free Alister, Dunn and Anderson, which he wrote during his seven years in gaol, is a stirring insight into their legal fight and incarceration. To his credit, it is devoid of bitterness. He graciously gave me a copy, which he inscribed, To Bill—many thanks for all your sincere efforts. It is dated 9 September 1985, literally hot off the press. Sadly, Tim Anderson’s ordeal was not over yet.

* * * Sometime before 1989, police received information related to the Hilton Hotel bombing from a highly suspect source. Raymond John Denning was a career criminal. He’d been institutionalised for most of his life from his early teens, serving sentences for armed robbery, break and enters, car theft, assaults, and having escaped most of the prisons he’d been serving time in. Towards the end of his career, Denning turned police informant, no doubt earning favours for dogging on his mates. Denning was eventually released in 1993 and died of a heroin overdose in June that year. During the period Tim Anderson had been imprisoned on conspiracy charges, he and Denning had shared the same prison, along with hundreds of others. According to Denning, he and Anderson befriended each other and Anderson openly admitted, on different occasions, he had set the bomb at the Hilton Hotel. You can select the company you keep, but that choice is lost when you become a prisoner; it is one of the many dangers of prison life. The identity and quality of your fellow inmates is determined not by you but by the gaol authorities. Confessions to another prisoner while in gaol are prolific, but always highly suspect—much, much more suspect than the unsigned record of interview. The gaol environment forces strange friendships. The idea, however, that Tim Anderson could resist confessing to the police, but would confide in Raymond Denning, is absolutely unbelievable. He and Denning had nothing in common, no common interests, education, sporting or other concerns. True, they were fellow prisoners, but with a big difference: Tim shouldn’t have been in gaol in the first place, as was later proved, and Denning was a hardened criminal with a long record culminating in a life sentence.

Police believed Denning, although Denning had not revealed the conversations until four years after Anderson’s release on the Yagoona conspiracy. Denning’s information led to Anderson being charged with the Hilton Hotel bombing on 30 May 1989, four years after his pardon on the conspiracy charges. This, then, set about a shock development. Enter Evan Dunstan Pederick, a 33-year-old Brisbane public servant and Ananda Marga member who, on hearing of Anderson’s arrest, went to police and admitted he was involved in the bombing under orders from Tim Anderson. He said Anderson had provided the explosives and Pederick planted them in the bin to detonate remotely on the Indian prime minister’s arrival, but it didn’t work, so he panicked and ran. Pederick, who had failed in securing immunity for himself, was dealt a swift blow. On his own admission, he was charged and found guilty on three counts of murder, despite arguing he was only guilty of conspiracy to murder the Indian prime minister. The judge found he had been reckless in leaving the explosives in the bin. He was sentenced to twenty years in gaol. With Denning’s and Pederick’s statements, supported by Pederick’s plea of guilty, the most feared prosecutor of his era, Senior Crown Prosecutor Mark Tedeschi QC, convinced a jury of Tim Anderson’s involvement in the bombing. In October 1990, Anderson was given the extraordinarily lenient sentence of fourteen years gaol for the triple murder. Life imprisonment, without hope of ever being released for such a heinous crime, would have seemed to be inevitable. It was never alleged Anderson had actually planted the bomb, but he was convicted on being an accessory before the fact, otherwise known as an accomplice. The presiding and very experienced judge, Justice Michael Grove, said Anderson had been ‘brainwashed’ by the Ananda Marga cult when he instigated the bombing. On the day of the verdict, the Sydney Morning Herald ran the headline, Guilty: the Hilton bomber. It also wrote the bombing had been ‘finally solved’. In June the following year, Anderson appealed his conviction to the Court of Criminal Appeal. His senior counsel again was the brilliant Ian Barker QC, who had argued the Ananda Marga appeals in 1980 in the same court. The Crown Prosecutor was Mark Tedeschi QC, who had, only months before, secured Anderson’s conviction at trial. It is rare for the Crown Prosecutor at trial to retain the brief for the appeal, but Tedeschi did nonetheless. The credibility of the witnesses, Denning and Pederick, came under heavy fire from Ian Barker QC. Huge work had been done cross-checking dates and examining the statements of each witness. In doing so, glaring errors became obvious. For one, Denning was not even in the same prison as Anderson on some of the dates he claimed Anderson had confessed to him. Pederick had also given police three different scenarios of how and when he planted the bomb, but none were plausible due to security, arrivals of dignitaries and other factors. On 6 June 1991, the three judges on a particularly strong Court of Criminal Appeal came to a unanimous decision. They agreed the verdicts of guilty in Anderson’s trial were unsafe and unsatisfactory. Chief Justice Murray ‘The Smiler’ Gleeson dismissed Denning as a ‘notorious prisoner’. In relation to Pederick he said, ‘on any view of the matter, his account of the events of 12 February 1978, and in particular of the circumstances relating to his actual attempt at assassination, is clearly unreliable. He is incapable of giving a description of those events which does not involve serious error.’ It is difficult to imagine a shakier basis than that adopted by the Crown to charge Tim Anderson with the Hilton Hotel bombing. Chief Justice Gleeson continued, ‘I do not consider that in those circumstances the Crown should be given a further opportunity to patch up its case against the appellant. It has already made one attempt too many to do that, and I believe that, if that attempt had never been made, there is a strong likelihood that the appellant would have been acquitted.’ So, rather than order a retrial, the full bench quashed Anderson’s conviction and he walked free a second time. The unanimous judgement of that bench is enshrined in Volume 53 of the Australian Criminal Reports, bound distinctively in blue and red with gold lettering proclaiming (1991) 53 A.Crim.R. 421.

* * * In May 1995, Evan Pederick recanted his confession. After six years in gaol, Pederick decided he might be innocent. He accused police of failing to test his evidence and state of mind. In an interview he granted to News Limited, he gave a possible explanation as to why he would have confessed by posing this question: ‘Is it possible that in 1978, dominated by the influence of the Ananda Marga and yet in conflict with the demands of the sect, I had acquired a deep sense of guilt which expressed itself in an obsession with the cataclysmic events for which Ananda Marga was held responsible at the time? I do not know.’ In 1997, the NSW Court of Criminal Appeal dismissed Pederick’s new claims. In rejecting his appeal, the judges insisted the decision of the court ‘cannot be validly interpreted as casting doubt upon its previous decision to acquit Anderson’. Six months later, Pederick was released on parole. Pederick was flawed but, like his fellow turncoat Seary, he deceived a jury and achieved another grotesque miscarriage of justice. Was he truly a penitent for committing such an atrocity? Evan Pederick’s personality remained a complex blend with many facets and cultures. But diffidence was never an attribute. Even years in gaol did not dim his relentless search for the spotlight.

* * * Despite there being no evidence linking Alister, Dunn or Anderson to the bombing, efforts to punish them for it were unrelenting. Gaol, loads of it, was their punishment. Bad luck for those three men who had been selected to take the blame. Appeals all the way to the High Court failed. They stayed in gaol for almost seven years until cleared and released following the Wood Inquiry. Today, Dr Timothy Anderson is a University of Sydney senior lecturer. His is not a case of turning one’s back on crime and reforming with maturity—he was never a criminal in the first place. Yet he served, all up, nearly eight years in maximum security gaols. Disgraceful! In the tormented process, Dr Timothy Anderson became the only innocent man in Australian history to be framed twice, cleared twice and released from gaol twice. Today he maintains the clear criminal record of which he is justly proud. Although not part of the investigation team, the ubiquitous Detective Roger Caleb Rogerson was, on the night of the Ananda Marga Three’s arrests, put on standby to organise the police confessionals. There are three typed confessions belonging to the men but, alas, they joined the growing band of alleged recalcitrants who were not prepared to go that extra, binding, step of cooperating by signing the confessions. In those days, that was seldom an obstacle to convictions, as the three men so sadly found out. But for Labor MP George Petersen, Attorneys-General Frank Walker and Paul Landa, Public Defender Michael Adams and solicitor Will Hutchins, these three young men would have served out that long and crushing sentence. I have not seen Will Hutchins since the inquiry. The chart Tim Anderson drew up reveals his involvement from 30 June 1978. His dedicated contribution to the Yagoona Three legal cause began with Michael Adams soon after their arrest. I read Richard Ackland’s piece in the Sydney Morning Herald on 7 June 2013, which said of Mr Hutchins, ‘30 years later his skills are still devoted to the Prisoners’ Legal Service, an underpaid but crucial body which specialises

in helping prisoners fronting the New South Wales Parole Authority. Not an easy task as seeking and successfully negotiating conditional release for clients invariably very much down on their luck.’ That is vintage Will Hutchins. The fourteen-year sentence Dr Anderson received for the Hilton Hotel triple murder was, in a context devoid of any remorse or any redeeming features, astonishingly lenient. It is extremely doubtful whether the seven years in gaol as an innocent man would, as a matter of strict law, potentially have even been available as a mitigating feature. Nonetheless, it is difficult to imagine how the correct sentence for such an atrocity could be anything other than incarceration for the term of his natural life. Even if the judge thought he was innocent he was powerless to act in any way which was inconsistent with the jury’s verdict. In the end, the justice system did not fail and the men were cleared, but the cost to these three young lives remains enormous. No one should ever have to suffer what Paul Alister, Ross Dunn and Dr Timothy Anderson did all those years.

CHAPTER

12 Angelo Maric—Guilt by Hearsay

Terrorism is not a product of the twenty-first century; it has been around in its many forms for as long as mankind. During the 1960s, 1970s, and into the 1980s, Australia found itself in the middle of a long-standing war between Croats and Serbs that dated back to 1929. In truth, it was probably earlier, as both sides clung to their nationalist identities while being forced to live under one banner: Yugoslavia. Nearly every Australian capital city was subject to letter bombs, parcel bombs and conspiracies to murder. The then communist Yugoslavian government even accused Australia of being a recruiting and training ground for the right-wing extremist Croat group, Ustasha. It was this group that was blamed for the 1972 bombing of two Yugoslav-related businesses in Sydney. The bombs exploded on 16 September, a Saturday, at business premises at 668 George Street, Sydney, near Central Railway Station. The owner, Josef Martin, was badly injured. Depending on the news reports of the day, sixteen to eighteen people suffered varying, but minor, degrees of injuries from the blast. Shortly after, further up George Street at number 736, a second bomb was discovered and detonated in the street without anyone being hurt. This was terrorism on a major scale. The bombings were, no doubt, a political hot potato, as evident from this news report in the Canberra Times: Australia has assured Yugoslavia since the bombing of two Yugoslavian offices in Sydney that it would not tolerate being used as a base for terrorism, a Department of Foreign Affairs spokesman said yesterday. The assurance was given on Friday in a reply to a formal protest from the Yugoslav Ambassador to Australia, Mr Uros Vidovic. The protest followed an attack on September 16 on a Yugoslav travel agency and a Yugoslav clothing factory in Sydney, when 16 people were injured. The then Federal opposition leader, Mr Gough Whitlam, commented the bombings in Sydney at the weekend showed there were threats to life and limb in Australia on a scale which the country had never before seen. Mr Whitlam would become Prime Minister of Australia after the Federal election on 2 December. Even before these incidents, the Commonwealth Government was under pressure to closely vet immigrants from southeastern Europe and the Balkans, and deport any Croats or Serbs who committed acts of violence. In response to the Sydney bombings, and similar happenings in Melbourne, however, the Australian Secret Intelligence Organisation (ASIO), the federal police and every state police force joined to identify and weed out extremists. Rewards totalling $40,000—more than the price of an average home back then—were also offered for information leading to an arrest. The reward was funded by both the federal and New South Wales governments. Raids were conducted across the nation involving, at times, over 200 officers. The raids uncovered a cache of weapons and explosives, and gathered valuable intelligence material. In fact, in one raid, police uncovered a plan to assassinate the Yugoslav ambassador to Australia, Mr Vidovic; the then prime minister, Gough Whitlam; Attorney-General, Senator Lionel Murphy and his wife; as well as the Sydney detectives who were working on investigations into the activities of Croatian extremists. By November, around thirty people had been taken into custody in New South Wales alone. Even so, police had yet to find those responsible for the George Street bombings. Then, on 27 November, uniformed officers, detectives and bomb squad officers from the New South Wales Police Force raided houses across nine suburbs in Sydney. They arrested six persons, one of whom was 28-year-old crane driver Angelo Maric. Maric was a Croatian migrant and selfprofessed patriot. After being interviewed by police, Maric allegedly confessed to having made the bombs and claimed, ‘I done it for Croatia … I hate all Yugoslavs. I blow them up in Sydney. They kill my people … I only make them [bombs]. Something must have gone wrong. They should have exploded after all the people gone home.’ He was then charged with having maliciously caused grievous bodily harm to Mr Martin and with aiding, inciting and counselling a person or persons unknown who placed the explosives. Angelo Maric’s trial was held late in 1976. The four-year delay was never explained. Maric, of course, denied having anything to do with the bombings. The Crown evidence against him was his confession. And, as was the custom in the seventies, the damning confession was unsigned. Angelo Maric was yet another victim of the police verbal. The trial judge was the formidable Justice John O’Brien, a dour man of Irish heritage. His lugubrious mien had earned him the soubriquet of ‘Happy Jack’. There was not a high acquittal rate in trials listed before him. The son of a country schoolteacher, Justice O’Brien possessed a fine legal brain which befits a scholar who graduated from Sydney University with first class honours and the University Medal. He enlisted in the army as a private soldier and saw service in the Middle East and New Guinea during World War Two. At the end of the war he had attained the rank of major and went to the Bar. He specialised in common law, industrial and criminal law, and was also Crown prosecutor in conspiracy trials. In 1964 he was appointed as a Judge of the Supreme Court of New South Wales. Angelo Maric was ably represented by Public Defender, Charles Luland. Luland had studied law at night while working in the day as a sergeant in the Commonwealth Police force. To my knowledge, the unsigned record of interview was not in the Commonwealth Police’s armoury. Mr Luland may have thought he had an easy task, not only because Maric denied having made the confession, but his alibi was rock solid: Angelo Maric wasn’t even in Sydney, let alone New South Wales, at the time of the bombings. He was, in fact, in Townsville, North Queensland, over 2000 kilometres away. And it wasn’t only Maric’s word the court was asked to believe; there were a number of work colleagues who vouched for him and offered to appear as witnesses. A pretty good alibi. Justice O’Brien, however, took more than his usually active role in the trial and dismissed the alibi. In the judge’s view, Maric didn’t have to be in Sydney to have made the bombs and encouraged others to plant them. Then, during the evidence of the Crown witness, Norman David Pratt, Justice O’Brien took over the questioning, leading the witness in answers that were prejudicial to the accused, Maric. Devastatingly, the judge elicited from Pratt that it was said about the accused—not by him or to him—‘Maric was good at making bombs’. This was hearsay at best, which is completely inadmissible in normal circumstances. Juries decide their verdicts on the facts, not rumour. Yet it was this the Crown relied upon to suggest Maric’s guilt. The inference being drawn was, if Maric heard this statement and didn’t deny it, it must be true and he must be guilty. Pretty optimistic drawing of the long bow, I would have thought. This was day seven of a nineteen-day trial. From that moment on, a fair trial was doomed. The trial should have

been terminated. Mr Luland tried to undo the damage to his client’s cause due to the judge’s error, but to no avail. The judge again took over the questioning. Mr Luland again objected. He asked the judge to take the extreme step of discharging the jury, thus aborting the trial. This application failed and the trial proceeded. Justice O’Brien made no attempt, either then or in his summing up, to cure the grave prejudice he had caused. In December 1976, Justice O’Brien sentenced Angelo Maric to sixteen years imprisonment with a non-parole period of four years. For someone found guilty of exploding bombs in George Street, Sydney, no challenge to the severity of the head sentence of sixteen years imprisonment could be made. The crime was at the top of the sentencing range. The non-parole period of four years, however, being one quarter of the head sentence, appeared very lenient. This meant, once Maric earned parole he would be under supervision for a record period of twelve years. Did Justice O’Brien think the lenient non-parole period would discourage an appeal? Well, it didn’t. During the years Maric was in gaol, under sentence after his trial and awaiting his appeals, he lost weight and visibly aged. It may have been due to the fact that gaol, while unpleasant for all prisoners, bears more heavily on first offenders. His decline in health may also have been due to the tortured emotions of an innocent man suffering an unjust imprisonment. Senior Public Defender, Howard Purnell QC, appeared for Maric in the Court of Criminal Appeal. He had the gifted Paul Byrne as his instructing solicitor. Both were of the opinion the trial had miscarried. The basis for appeal was obvious: the trial judge erred by dismissing Angelo Maric’s strong alibi in favour of the unsigned police record of interview, and the inadmissible, prejudicial evidence introduced by the judge himself caused the trial to miscarry. Indeed, Justice O’Brien should have accepted Mr Luland’s request to have the trial aborted. Those arguments, unfortunately, were not good enough for the Court of Criminal Appeal, which split two to one against Maric. Purnell had persuaded one of the appeal judges, Justice Tony Larkins, an injustice had occurred. So much so, Justice Larkins delivered a strong dissenting judgement criticising the trial judge. He said, ‘How could the tag of bomb maker, and a good one at that … ever be forgotten by the jury?’ Although the appeal had been lost there was still a chance the High Court of Australia would see reason. Howard Purnell QC was, of course, briefed to also appear in the High Court and he chose me as his junior. Paul Byrne continued as our instructing solicitor. Howard Purnell and I needed no reminders of the dangers and harshness of gaol life. It was certainly brought home to us one morning when conferring with Angelo Maric in the legal boxes of the Central Industrial Prison at Long Bay. As we talked, smoke and shouting heralded the start of some inmate-led disturbance. As the atmosphere literally thickened with smoke, Maric, obviously caring for our safety above his own, advised us to leave quickly. We did, while feeling empty at leaving our client behind. Not that Maric had a choice. The problem with an appeal to the High Court was to invest it with that ‘special leave’ quality. The fact Justice Tony Larkins had delivered such a strong dissent in the Court of Criminal Appeal was a starting point. There is no test which defines special leave; to be granted so lies in the discretion of the High Court. Indeed, attempts to define it have been abandoned. Howard Purnell advised Maric his chance of success was borderline, but worth a try. The High Court of Australia was sitting in Brisbane. In fact, this was the same day in 1979 that Purnell and I appeared before the High Court to appeal Richard Veen’s sentence. Back then, photostatting, or copying, legal documents was not taken for granted as it is today. It was a big task. There were no USBs, compact drives or even floppy disks to condense everything, it was all hard copies. Purnell and I travelled with copious amounts of paperwork all relevant for arguing our clients’ causes. As I looked out the window of the plane, I could see Purnell’s red (QC) and my blue (junior) bar bags bulging with law books, sitting on the motorised trolley on the tarmac at Sydney Airport. Rain poured down, drenching the bags as they sat waiting to be loaded. The High Court was initially reluctant to grant special leave but, having done so, they showed no hesitation in ordering a retrial. It was an ‘incurable irregularity’, so said Acting Chief Justice Harry Gibbs, who gave the leading judgement. He held the trial judge’s intervention was mistaken. Justice Gibbs went on: ‘It is hardly possible to conceive of evidence more likely to prejudice the jury against the applicant to his detriment … I find it quite impossible to be sure that the scales were not tipped against the accused by the wrongful admission of this evidence.’ Justice Lionel Murphy was critical of the Crown’s failure to support defence counsel Charles Luland’s application for the discharge of the jury. Yes, the same Lionel Murphy who was a senator and Attorney-General in the Whitlam Government, and named as a target for assassination. What can one say, it’s a small world. Justice Murphy held the Crown should not be able to take this stance without penalty, knowing the worst that could happen on appeal would be a retrial. Being wrongly told Angelo Maric was a skilled bomb maker could hardly be more damaging evidence than in a bombing trial. The harm done by this disclosure was heightened by the fact it was elicited by a question from the judge, and the jury was never told to disregard it. It was highly prejudicial. Justice Murphy regarded it so seriously, he voted against any retrial. He felt Maric should be acquitted and released. He was a lone voice on that aspect, but he made his point. Senior Crown Prosecutor Bill Job QC conceded, as he had no option but to do, that the challenged evidence was inadmissible. Charles Luland’s action, requesting Justice O’Brien abort the trial due to his interference, turned out to be a winning appeal point. Indeed, it was crucial and saved the day for Maric, Howard Purnell and me in Brisbane. Luland was a fine lawyer. Like myself, he rose to the office of Deputy Senior Public Defender, before being poached by the first Director of Public Prosecutions, Reg Blanch QC, as one of his deputies. Charles Luland then went on to become Judge Luland QC of the District Court. Angelo Maric’s retrial was scheduled for 2 November 1979. The presiding judge was the astute Justice David Yeldham. Reading through all the material related to the case against Angelo Maric, Justice Yeldham turned to the jury, soon after they were empanelled, and instructed them to find the accused ‘not guilty’. The retrial didn’t even begin in real terms. Suffice to say, Justice Yeldham saw there was no case for Maric to answer. He was set free. Angelo Maric’s ordeal was over, but he would recover slowly from the wasted and torturous years in gaol, during all of which he never lost hope. Maric was thirty-five years old when he walked out of court that November morn. He was born in 1944 and died peacefully on 3 July 2015, at age seventy. He left behind a wife, two children and five grandchildren. I only hope the remaining thirty-five years of Maric’s life were filled with great love and happiness. Reading his obituary, I believe this was so.

CHAPTER

13 Anita Cobby—An Unfailing Test of Civilisation

Appearing at the 1987 Anita Cobby trial was to be my last appearance as defence counsel. I did not volunteer. At this time I had been elevated to Deputy Senior Public Defender and was chosen by legal aid chief, Ron Newham, to be briefed to appear. Legal aid was granted to all five accused. It was a sound decision, if not a popular one. The entitlement to legal aid for those too poor to afford it, and nowadays that is almost everybody, is an entitlement based on the foundation of our criminal justice system of the presumption of innocence. That presumption exists unless, and until, it is removed by proof of guilt beyond all reasonable doubt. Without legal representation the eventual trial of the accused would have been a travesty. Punishment of the guilty or clearing the innocent always require decisions on substantial issues of fact and law. In their own way the police, the courts and the community, through the jury system, all conscientiously combined to bring finality and justice to all and, most importantly, to nurse Anita Cobby and her family and friends. Before I begin telling of my involvement in the trial, I’d like to make a few observations concerning sentencing and justice. In 1987, and for a very long time prior, judges had a wide discretion in deciding sentences they could impose on those proven guilty. As you would have noticed in previous chapters, prisoners rarely served the full length of their sentence for various reasons, such as early release on parole or licence because of good behaviour. That has now stopped. The New South Wales government introduced its Sentencing Act 1989, which became known as ‘truth in sentencing’. This means prisoners now serve whatever sentence is handed down, which includes a predetermined period where parole can be granted. Gone are the days of earlier release earned by remissions for good behaviour, which, in my opinion, is a retrograde step. Modest rewards for good behaviour and punishment for bad are surely basic penology? Also, since 1989, should anyone be given a life sentence, it means just that: the prisoner will die in prison. Justice David Hunt was a great judge of the last century and delivered many wise and scholarly judgements. Such was his international reputation, he served as a judge for three years on the United Nations War Crimes Tribunal at The Hague. Justice David Hunt said these words during one of his sentencing hearings: In the Old Testament, in the second Book of Moses called Exodus, the author laid down the law concerning acts of violence in these terms: ‘And if any mischief follow, then thou shalt give life for life, Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe.’ It is, as I say, an understandable desire on the part of the victim or those whom he or she leaves behind to have the Law of Moses applied. But we now live in a civilized community. Winston Churchill, during a debate in the [UK] House of Commons in 1910 said this: ‘The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.’ A civilized country does not act in the way that Moses laid down. Capital punishment has been abolished and, except in extraordinary circumstances, which do not exist in this case, the law does not regard itself as permitting a slower and more painful death by locking away the murderer and throwing away the key. When he spoke those words, Justice Hunt’s apparent confidence there would be no such future legislation turned out to be misplaced. It is interesting to note, of the eight biblical punishments laid down in Exodus, only capital punishment survives in civilised countries today, and in very few of those. Australia is no longer one of them. Today, with the judge invested with a specific legislative discretion, which enables them to throw away the key, there is a sentencing hearing with statutory questions to be determined and reasons given justifying that most extreme of steps. Judges apply the law as it stands, not make it. In New South Wales, a person serving life has received the ultimate in punishment, which is utterly devoid of mercy or hope.

* * * The tragedy that would shock the whole of Australia began just before ten pm on 2 February 1986. Registered nurse, 26-year-old Anita Cobby, had been having dinner with friends after finishing her shift at Sydney Hospital on Macquarie Street, next to State Parliament House in the city. She caught the 9.12 pm train to Blacktown in outer western Sydney to her parents’ home, where she was living after recently separating from her husband. On arrival at Blacktown Station just before ten, she went to find a phone to call her father. The usual routine was for Ms Cobby to phone her father, Gary Lynch, to collect her by car. This was well before mobile phones and, unfortunately, the public phone at the station had been vandalised, so Ms Cobby decided to walk home. As she did, an HT Holden Kingswood slowed beside her and stopped. Two of the five male occupants jumped out and grabbed her, pulling her into the car as she screamed. Anita Cobby was then robbed, bashed, raped and tortured before having her throat cut. So severe was the cut, it almost left her decapitated. Her bloodied, naked body was left in a secluded cow paddock at Prospect, not far from Blacktown, and was not discovered for two days. Everyone in the car that dreadful night had a passport to doom. None more so than poor Ms Cobby. When Ms Cobby’s body was found, the New South Wales government posted a $50,000 reward for any information leading to an arrest. In the hope of jogging memories, a policewoman dressed as Ms Cobby travelled on the 9.12 pm train to Blacktown while her colleagues interviewed passengers. Anita Cobby’s murder was front-page news. Gruesome details of the offences and the harrowing atrocity gradually unfolded. Understandably, the community, indeed the whole of Australia, was outraged. Even the police involved in the investigation were deeply affected. Led by Detective Sergeant Ian Kennedy, a top detective of his day, it took police just under three weeks to track down, arrest and charge five individuals with the murder. They were nineteen-year-olds John Travers and Michael Murdoch, and the Murphy brothers, 33-year-old Michael, 28-year-old Gary and 22-year-old Leslie. The five were hated and reviled by the

community. They all came from deprived backgrounds and were of below-average intelligence. They were petty criminals accused of a major crime. I was briefed to appear for Michael Murphy. Given the dreadful nature of the crime, the atmosphere in the community following the arrest of Ms Cobby’s alleged killers was one of brooding malevolence. It manifested at the first formal court appearance of the five accused at the tiny Westmead Coroner’s Court. Opened in 1984, Westmead Coroner’s Court was brand new and located inside the grounds of the huge Westmead Hospital complex. Uniformed police were present in large numbers in case of trouble. Ominously, a dummy dangled from a noose tied to a tree branch. A large crowd had gathered. Some held up placards calling for the restoration of the death penalty. Showing solidarity with Ms Cobby, uniformed nurses were prominent. The magistrate was the city coroner, Derrick Hand. Formalities were short and Mr Hand promptly fixed the committal proceedings for the more secure surroundings of the Coroner’s Court on Parramatta Road at Glebe. As the prison van edged out of the Westmead Hospital, the crowd surged forwards. They banged on the sides of the van and booed and catcalled. Attempting to defuse a nasty situation, someone called out, ‘Ladies, ladies, the police are only doing their job.’ The crowd’s anger was not directed towards the police. It was clear the chances of finding a sympathetic jury in the Sydney metropolitan area—or the world—were zero, and chances of finding a cool and impartial one were slight. Before the advent of the Public Solicitor and legal aid, the unrepresented accused standing trial was at a tremendous disadvantage. Even an old lag did not know the intricacies of procedure or evidence, nor even the possible options in presenting their defence. In this situation, the judge is obliged to tender advice. Of course, that was not done in a cosy fireside chat scenario, but in a terse, prescribed, formal fashion in open court. An accused could always elect to appear for themselves. As the legal cliché goes, an accused who prefers to appear for himself has a fool for a client. The role of counsel for the accused in any criminal trial can be controversial, particularly where there has been a grave crime. Defence counsel has a duty to act for his or her client with vigour, but also with ethical propriety. There is a popular misconception that a true defence counsel must believe in the client’s innocence. Nothing can be further from the truth. A competent and vigorous defence is essential to a fair trial. The personal belief of counsel is irrelevant. The lawyers’ duty is to argue, firmly, the case of their clients and not to express a personal opinion. Often, this is forgotten by the public. The so-called ‘cab rank’ principle simply restates the rule that barristers do not choose their clients. If it were the other way around, despised causes and hated accused would be denied an experienced, professional voice. Fearless independence for barristers is fundamental. Even more so where there is a Public Defender involved who holds that independent statutory office with all its privileges and its responsibilities.

* * * In seeking the convictions of the five men, the Crown relied upon the legal doctrine of common purpose. To explain common purpose, judges use an example of two would-be bank robbers. One drives the getaway car, while the other enters the bank and demands cash of the teller using a replica pistol. The teller refuses and is then shot. It turns out the pistol was not a replica. Both men are charged with murder although the driver has never left the car. There follows disputed questions of fact and law. First of all, was there an agreement to use a replica and not a real pistol? The answer could be decisive in determining the driver’s level of criminal responsibility. Likewise, did the driver know his accomplice well enough to reasonably expect him to bring a real pistol and use it? In other words, you can still be guilty of murder if you have never set eyes on the victim let alone wanted them to be killed. The defence of each of the accused in the Anita Cobby case was that Travers alone had the knife. Travers alone stabbed Ms Cobby. He alone was to blame for her death. The Crown case was, irrespective of what each actually did that night, all were equally responsible for her death and each was guilty of murder. Because each knew what Travers was likely to do, therefore all were equally culpable under common purpose. For the Crown, this was true as a matter of law and, equally compellingly, as a matter of fact and commonsense. Even so, questions remained as to the extent of each accused’s personal involvement. In that respect, their signed confessions were the Crown’s trump cards. The defence claimed the confessions were obtained improperly and by force. To present the client’s case, those allegations had to be put. They were all denied by the police. Mere presence that night in the car, then the cow paddock, leaving aside what each offender himself did, was a matter of the gravest wickedness. The law, through the courts, had the task of determining the degree of culpability using rules which have evolved over centuries and long before 1788 and the arrival of the First Fleet, carrying with it the ‘invisible cargo’ of the common law. The line of defence which emerged was, even accepting the Crown case, the worst that could be sheeted home to Murdoch and the Murphys for the death, in terms of legal liability, was the crime of manslaughter. That line of reasoning was barely intellectually respectable but, nonetheless, required a competent presentation to the jury. Was only Travers accountable for murder and one or more of the remaining four only guilty of manslaughter? This had to be considered calmly and unemotionally and, I have to tell you, on these facts it was not an easy task, even for an experienced defence counsel like me. That initial question was limited, of course, to the homicide, not the rape and sexual brutality. My difficult role was to seek to protect the interests of Michael Murphy.

* * * On 16 March 1987 when the trial began in historic No. 5 Court at Darlinghurst, the Central Criminal Court, the bar table was crowded with five, sometimes six, robed barristers and their instructing solicitors for what the press soon described as the ‘trial of the century’. Closest to the judge, with his own lectern, was the grim, unsmiling Crown Prosecutor, Alan ‘Slipper’ Saunders QC. The origin of the soubriquet ‘Slipper’ is lost in the mists of time. It was definitely not derived from being a soft and comfortable opponent. The Crown had no better or more able advocate. He dominated the bar table with his reputation, experience and sheer forensic skill. We had been regular opponents over the years. I didn’t like him. He didn’t like me. The rest of the cast at the bar table is best described by top Sydney journalist, Julia Sheppard, in her book Someone Else’s Daughter, The Life and Death of Anita Cobby. I take the liberty of setting out, verbatim, two paragraphs of the book describing the rest of us. I believe she erred on the side of charity. David Wetmore, representing Gary Murphy, was known as ‘Sandy’. His long fair hair blended most perfectly with his barrister’s wig. Without that wig and his robes, he didn’t look like a barrister, especially with the tiny diamond stud earring he wore. His broad Canadian accent would boom across the courtroom. He would subtly use his sense of humour to relieve the solemnity of the trial. Neck and neck in the good humour stakes was Michael Murphy’s barrister Bill Hosking, a QC and a totally different style of man to Sandy Wetmore. Hosking, always in a dark suit, would take to addressing the jury or a witness with his hands clasped in front of him in a

choir boy grip. He had a round face, pale skin and could recite apt pieces of Shakespeare at any given time, always to the blank stares of the defendants. He knew his law and pushed it to the limit. Marcus Bleasel, representing Michael Murdoch, was a tall, thin man with a neat beard with reddish highlights through it. In his 30s, he was younger than the other barristers around the bar table. Bradley Mulligan, Leslie Murphy’s counsel, was a personable-looking fellow. He was quiet and sometimes had a red complexion. The bar table for the defence was a cross section of age, experience and styles. The day’s proceedings always began with what became a ritual loud knock on the large oak door leading from the judge’s private chambers. Preceded by his tipstaff wearing a black frock coat and carrying a white staff topped with an elaborate gold crown, in came the judge. Not a tall man, he was resplendent, wearing the royal scarlet robes of a Supreme Court judge sitting in the court’s criminal jurisdiction. Justice Maxwell was the epitome of duty, courtesy and dignity. The usually solemn atmosphere at Darlinghurst was absent the morning the trial began. A huge number of potential jurors milled around in front of the sandstone pillars, spilling over onto the lawns fronting Taylor Square and Oxford Street. Television crews seemed everywhere, as were radio network reporters. The press had their usual, reserved, prime seats on the judge’s left, facing the jury. The police had done their duty. The magistrate, Mr Hand, his. Next, the Crown Prosecutor and his instructing solicitors were ready. The judge and the jury were now in place. Also present, in almost reviled solitude, were the lawyers all funded on the modest legal aid rates, except me, on the salary of a Public Defender. The others would only receive the extremely nominal legal aid fees of the time in accepting these briefs. Far from helping the four other barristers’ careers, or bank balances, appearing in this trial was a positively negative factor. There are no lawyers made rich on the meagre fees paid for by legal aid cases. It is done as a noble service by the profession. The concept of legal aid itself seemed to be on trial. Legal aid is effectively the post-war creation of the New South Wales McKell Labor government, ensuring the honest battler is not subsumed by the power of the state. I lost count of the number of friends and strangers who asked me ‘Why on earth would you accept a case like this?’ or ‘Do you enjoy it?’ There is a simple answer, apart from duty. There are many, many occupations and professions which are not only more unpleasant, but some are also very dangerous. There is the challenge of appearing in what you know is a losing brief for a particularly despised client. Particularly, where there is no real issue as to identity, and the crime is so harrowing and has such cruelty, there will be not a scintilla of public sympathy for your client. This was such a case. During it and afterwards I received considerable personal criticism for accepting the brief. Even my son, James, who was still at school, was criticised by other boys. They wanted to know why his father would appear in such a terrible case. This trial clearly raised the question, does the community want symbolic or real representation for major criminals? Under our system the accused is not guilty until our grand, but still imperfect, system has run its full course. The spectacular miscarriages of justice staining our history highlights the still inherent dangers which arise through human fallibility. A major safeguard is that all court proceedings—with the rarest of exceptions—are open to the public and, perhaps more importantly, open to and subject to intense scrutiny by the media. There was certainly no absence of that for this trial. In such a case, where there is justifiable community anger, counsel has at least two options. One can merely go through the motions to ensure it appears the formalities of a fair trial were observed. Alternatively, counsel does what he or she should do in every case. That is, to do one’s professional best for a client who would not have a clue what that involves.

* * * The trial began sensationally with a false start. Most of the first day was spent empanelling the jury. Not surprisingly, many prospective jurors sought to be excused and were. The trial was not only to be a long one, but harrowing also. As the five defendants rose to state their plea, John Travers gave a different response to the rest. They were all facing charges of murder, kidnapping, robbery, assault with intent to rape, and theft of a motor vehicle. The case against Travers was unanswerable as it was he who had the knife. He recognised the hopelessness of his case and pleaded guilty to the lot, which then made front-page news in the afternoon tabloids. The Sun ran with the headline, ANITA MURDER MAN GUILTY. The article went on, quite accurately but unnecessarily, referring to Michael Murphy as a ‘prison escapee’. The older Murphy brother had escaped from Silverwater Correctional Centre where he was serving a 25-year sentence for a string of burglaries and thefts. This was outrageously prejudicial and, probably, a contempt of court. The next morning, I asked for the jury to be discharged and the trial be aborted. The rules of the court are designed to ensure there is a fair trial: fair to the prosecution and fair to the accused. In many situations, where the scales are even, they usually should be tipped in favour of the accused. Where necessary, if the rules are not observed, they are enforced by a higher court. A fair trial, although unlikely before this mishap, had become impossible. In the end, Alan Saunders QC did not oppose my application. Justice Maxwell reluctantly agreed and the jury was discharged. That was one of the very few procedural wins in the trial but, in the end, it counted for nothing. I then asked for an adjournment for six months when, hopefully, the atmosphere would be less poisonous after such a long lapse of time. That received short shrift. The expression is ironically apt, given it owes its origin to the few minutes grudgingly afforded the criminal, about to be executed, to make his confession. Justice Maxwell granted an adjournment of one week only. That could achieve little or nothing, and the trial went on. My application to discharge the jury was criticised as ‘obstructionist’ and ‘point taking’. The journalist’s error was probably not a deliberate one, but the damage done was substantial. I had bought the offending newspaper right outside the court gates in front of the Oxford Hotel. It may not be a surprise to know the atmosphere of prejudice was very high even before this incident. To those critics my answer is this: the very experienced judge had no hesitation in recognising the harm done and discharging the jury. Also, very significantly, Alan Saunders QC did not oppose that course of action, although his support was, to say the least, lukewarm. My real complaint was only being granted the short seven-day adjournment, which was a mere token. An inevitable disadvantage in having the first jury discharged was having, again, to sit through the tedious hours of Alan Saunders’ opening address. The Crown Prosecutor’s opening address is not recorded. Sometimes these addresses are major, colourful productions promising the world and setting the stage. Sometimes they do not live up to that promise. From past experience, and just to be on the safe side, I asked Justice Maxwell to order Alan Saunders’ address to be recorded by the shorthand writers. His Honour declined my request. As an indication of how seriously we viewed the situation, the Public Solicitor retained a highly skilled private legal stenographer, Ms Nicola Burgess, to do the job for us. She sat behind me. It was hard going but she was able to produce for us a copy of the Crown’s opening address the next morning. It was not my idea of bedside reading. Copies were available to other defence teams. The Crown neither asked for

nor was offered one. That was the atmosphere at the bar table throughout the trial. Opening the Crown case to the jury, Alan Saunders QC lived up to his reputation, describing in detail the callousness Anita Cobby suffered. He described Ms Cobby’s ordeal as ‘sustained degradation, brutal, unbridled lust culminating in one of the most savage brutal murders the State has ever known’. Any wonder the media called it the trial of the century. The first witness set an atmosphere of indescribable sadness: Anita Cobby’s father, Gary Lynch. He was a tall, dignified figure. He gave brief, formal identification evidence relating to his late daughter. While he did so the silence in the courtroom was deafening. He then joined his wife at the back of the court where they remained for the duration of the trial. Gary and Grace Lynch attended the trial each day. They showed great dignity. Because of police fears, security was tight and gallery and lawyers alike were searched after each adjournment. In the process, Ms Cobby’s parents often had to stand in a line with their daughter’s killers’ lawyers. Never once did they show anything other than great class. Propriety and protocol prevented us from exchanging a single word. There were no eyewitnesses to Ms Cobby’s ordeal, and the principal evidence was the individual confessions. It must be said, the account of one in the others’ confessions could not legally be used against another. This means, the confession can be used to prove the guilt of its author, but not prove guilt against any coaccused mentioned in the confession. This is a safe and fair way to view confessions, because the confessor may want to shift the blame to their coaccused. It should be for a jury, hearing evidence, to determine the accountability of each accused. The exception to this rule is where the coaccused agrees with another’s confession. More astute police try this stratagem, to get offenders to agree with each other’s confessions, even in part, thereby implicating themselves. While not unlawful, the strategy is discouraged. Accepting the confessor’s account only against the person making it is a technical, but important, rule. The Crown had the powerful advantage of not having to ask the jury to rely on circumstantial evidence alone, but on the words out of each accused’s own mouth. At the outset, sadly, there could be no argument about the fact poor Anita Cobby had been murdered. The trial was all about, 1. the involvement of all or any of the accused; 2. if that issue were resolved adversely, the extent of involvement; and 3. having decided the extent of legal liability, whether the particular accused is guilty of murder or manslaughter. In part, Michael Murphy’s case, and that of his two brothers and Michael Murdoch, was that Travers inflicted the fatal wounds on Ms Cobby with a knife and was acting on his own account. Travers had pleaded guilty to this. So far as the murder charge was concerned there was really no direct evidence to support a conviction of the others for murder on the basis they assisted or encouraged Travers to commit murder. Michael Murphy allegedly told the police, ‘I didn’t want her to be killed. [Travers is] a maniac. It’s his fault, I told him not to kill her … He’s a f***ing lunatic. I just wanted to piss off … What I done I’m prepared to cop. It’s just that c*** Travers …’ In legal terms, it was the defendants’ case that they were neither party to a common purpose to commit murder, nor had they intentionally assisted or encouraged Travers to commit the murder. That was not technical legalistic jargon. It was fundamental. It must be conceded on the Crown case there was evidence they, as Travers’ co-offenders, were criminally liable either as principals or accessories for the murder, as well as the other grave crimes alleged. They denied this. Sydney Morning Herald journalist Jenny Cooke’s account of my address began with the headline POLICE BASHED MICHAEL MURPHY, QC TELLS JURY. The art of the advocate is not only to be able to argue a hopeless and unpopular case, but to sound convincing doing so. Prisoners alleging they were assaulted by the police rarely have any visible injuries to point to. Sometimes they are lying. Sometimes not. That is not for counsel to determine, but for the judge and jury. Michael Murphy was adamant he had been bashed and only signed the record of interview to avoid further punishment. When a person is charged they are always fingerprinted and photographed, the familiar mugshot. If Murphy were telling the truth, we reasoned, his arrest photograph would support his story. It was subpoenaed. Curiously, it was not produced. A lame explanation was given that somehow, without explanation, the film had been lost. We were at a dead end in obtaining what could have been vital evidence. On Murphy’s instructions, we made a formal complaint to the ombudsman. Surprise, surprise, we got nowhere. The show must go on. There was, however, some visible evidence of injury to Michael Murphy’s face. The injury occurred during Michael Murphy’s arrest. Detective Sergeant Kennedy was an impressive witness. He was a big man with a strong voice. With a measure of drama, I challenged Sergeant Kennedy to explain the injury, expecting him to deny it. Sergeant Kennedy was ready for this challenge. He calmly conceded, ‘It may have been because I had my foot on his head as he lay on the floor.’ There was slight, unsympathetic laughter from the police benches and the gallery. The explanation cancelled out any potential mileage from the wound. It must be conceded, public sympathy towards my client incurring a bit of police rough stuff during the arrest inspired zero public sympathy. Nevertheless, it was required of me, by my client, to argue the validity of his confession and to ask the judge to rule it out of evidence. Hence the voir dire, a trial within a trial where the judge hears evidence in the absence of the jury, finds facts and makes a ruling of law on the admissibility of evidence. Not surprisingly, Justice Maxwell preferred the police version of events and let the confession in. In the circumstances, and not having sufficient evidence of mistreatment, any other ruling would have been astounding. It must be conceded, in Michael Murphy’s signed but disputed record of interview, while emphatically denying involvement in the murder, he had admitted to rape. Defence strategy in this trial was to seek to avoid confronting and emphasising prejudicial evidence and to direct the focus to more favourable features. That is easy to say, but the harsh reality of the situation was such favourable facts were very thin on the ground. Michael Murphy’s defence was a legal nightmare. On his instructions, he was not guilty of any crime. The law provides being present when a crime is committed is not an offence. But to infer that coaccused John Travers, who pleaded guilty, committed the murder of his own volition, was to stretch reality beyond credible limits. In her book, Someone Else’s Daughter, Julia Sheppard perceptively introduces, in a professional and noninflammatory way, the shock of hearing aloud in court the ‘c*** and f*** forbidden words’, so frequently used in the evidence. ‘Hate’ is also a four-letter word. It connotes the feeling of antipathy and loathing towards the accused. It is not a nice word either. The use of c*** and f*** by each accused in their statements was a badge of crudity, ignorance and an extremely limited vocabulary. That was starkly demonstrated when Ms Bev Dalley, the judge’s associate, was required time and again to read those words aloud from documents. The law required the confessions be read aloud to the jury in the always packed courtroom public gallery. Gasps soon gave way to stunned silence as the ladylike associate read each accused’s crude account. Ms Bev Dalley was warmly described, again, by Sydney Morning Herald court reporter Jenny Cooke as ‘looking like an 18th century governess’. While I have never seen one of those ladies, I think I know the picture Jenny Cooke was endeavouring to convey. It exemplifies how true dignity is not compromised by coarse and extreme vulgarity. A lady is always a lady. Ms Dalley was not compromised. Everyone felt sorry for her; she was merely doing her duty. It was in those ghastly accounts that c*** and f*** so profusely defaced the shameful narrative.

These readings were damaging stuff, but nothing compared with the police photographs of the scene and the postmortem details. Again, what was my client’s defence? ‘I wasn’t there’ and ‘If I was, it was for sex and not for murder’. Merely stating those horrible alternatives underlines the gargantuan task facing the defence. Given the basis of the ‘Travers is a maniac’ defence, this unanswerable question always loomed large: Why, then, ever be in his company? I repeat, this was not an easy case.

* * * Just before the judge was adjourning the trial for morning tea on the Thursday before Easter, a lady from the court office came into the courtroom with a message for me to ‘ring Mr Trevor Haines’. Mr Haines was the Under Secretary of Justice, the public service permanent head of the Department of the Attorney-General and of Justice. There was no number. He would usually have rung me at my chambers in Phillip Street, so it must have been urgent. I had only spoken to Mr Haines twice since my appointment as a Public Defender fourteen years before, and one of those occasions was at a Christmas party. Naturally, I was concerned about why he would want to talk to me himself. Unfortunately for me, my whereabouts were no secret. On a daily basis, my name was in the papers for all the wrong reasons, defending in the Cobby case. At the morning tea break I rang Mr Haines from the public phone outside the robing room. Mr Haines was extremely polite, but merely told me to ring ‘the attorney in his electorate office at Cootamundra’. ‘The attorney’ was Her Majesty’s Attorney-General, the Honourable Terry Sheahan MP. I rang and got through to him personally and, straight away, he indicated he was considering appointing me a judge and to consult my wife, Judy. I was to let Mr Haines know the following Tuesday. I was shocked. No, I didn’t need to take him up on his offer to reserve my decision—I accepted on the spot. After the call, it was back to the tension of the Anita Cobby trial. I was unable to tell a soul about the phone call, except Judy. Absolute confidentiality had to be observed until Cabinet approval and the Attorney-General’s formal announcement. When Justice Maxwell returned to court after the morning adjournment, the voir dire of a coaccused continued. The phone call had shaken me but, fortunately, I had no role to play for the rest of the day. How should the AttorneyGeneral’s decision affect my future conduct of the trial? The answer was simple: not at all; it was business as usual. True, this was a highly publicised trial and, true, the atmosphere at the bar table occasionally became heated. In close to twenty years at the Bar I had never come under adverse notice, so there was no reason to fear a sudden change now.

* * * In cross-examination of Travers’ next-door neighbour, Mrs Greensmith, I had sought to establish a ghastly prior incident wherein Travers had killed a lamb with a knife at a barbecue. The admissibility, and then the wisdom of asking such a question, was far from certain. Alan Saunders QC objected to it. Presumably, this meant the Crown did not wish the jury to know of Travers’ weird behaviour. It was near the end of proceedings on a Friday, and the court adjourned for the weekend with the judge yet to rule on my question. On the Monday morning, Mr Saunders solved the problem by withdrawing his objection and the question was allowed. Had the Crown changed his mind or his tactics? Many observers thought I had erred in opening up Travers’ slaughter of a lamb at a barbecue, that it played into the hands of the Crown. But I knew the answer before asking the question so it was not a case of a loosely phrased question eliciting a devastating surprise answer. My decision was a crucial one. On one hand it supported Murphy’s ‘maniac’ label for Travers. This certainly hinted at the fact Travers was uncontrollable and was unlikely to heed the pleas of mercy from any of the others. My ultimate decision was to place before the jury undisputed proof of mindless butchery, putting the blame for murder where it solely belonged—on Travers. On the other hand, it made Michael Murphy’s decision to be with Travers that night stupid, to say the least. The criticism of my question may be valid, but I don’t agree. The stakes were incredibly high and I was already putting two alternative and inconsistent defences to the jury. Remember, my brief from Michael Murphy was ‘I wasn’t there’ and ‘If I was, it was for sex not for murder’. True, neither defence had an instinctive or logical appeal. My client’s desperate situation, however, did not allow for a safety first approach. With my question allowed, my cross-examination of Mrs Greensmith resumed. She then told of seeing Travers in his backyard holding a live lamb whose throat had been cut. This was his precise modus operandi when he killed Anita Cobby. In re-examination, Mr Saunders, over my objection, then established through Mrs Greensmith that at least three of the accused were present when this event occurred. I immediately objected to this prejudicial evidence. My application to discharge the jury was refused. Given all of the circumstance, that was a pretty ambitious application on my part. I had, of course, foreseen that possibility, and when it arose, sought to have the best of both worlds. I was not the first nor only barrister to do so. Whether or not that was an error of mine remains, at best, an open question. No one is perfect, particularly yours truly. Since then, I have agonised over the wisdom of ever asking about the lamb in the first place. The mere presence of my client as a member of a gang of five in that lonely, deserted cow paddock after the violent abduction of Anita Cobby was highly prejudicial in itself. This trial was not the review of a game of chess, it was the tale of a wild, out of control, violent attack that ended in the murder of a defenceless woman. My decision to elicit the evidence regarding Travers’ shocking behaviour was based on my view it was relevant and important. So important, its significance outweighed its prejudice, and it was ultimately for the jury, not me as counsel, to determine or suppress. Even if murder were reduced to manslaughter, sentences well in excess of twenty years were still inevitable. That outcome was perhaps a super optimistic objective in a hopeless case. All five were fortunate that thirty-two years earlier the death penalty had been abolished in New South Wales. Otherwise some, or even all of them, would have paid the ultimate price. Anita Cobby did.

* * * There were no light moments in this trial. Though a sort of one came out of court when the jury requested a view of the paddock where Ms Cobby’s body was defiled, abandoned and found. This was at Prospect, some distance from the freeway to Penrith, and not far from one of Sydney’s few remaining drive-in theatres. The judge, his associate and tipstaff travelled by hire car with a police motorcyclist escort. The jury was conveyed in a tourist coach. Crown Prosecutor, Alan Saunders QC, and his instructing solicitor, Jenny Betts, were driven there by detectives. Defence counsel were left to their own devices. For security reasons, the accused remained in the holding cells below the court at Darlinghurst. My instructing solicitor was Greg Drake, who himself later became a successful barrister. He drove us there in his ancient Holden, which had seen better days. The radio aerial was a twisted wire coat hanger. We made it to the scene

of the view, but were blocked by an officious young policeman. He informed us, peremptorily, the road was closed and chided us, if that be the correct word, for not obeying the ‘road closed’ sign back nearer the highway. Greg Drake politely dissented. I remained silent. Rare for me, some would be unkind enough to say. The policeman enquired as to who we thought we were, or words to that effect. Mr Drake alighted, drew himself up to his full six-foot-two-inch stature and said imperiously, ‘Constable, I am driving senior counsel for Michael Murphy.’ The constable then smartly saluted, more out of uneasiness, and waved us through to join the legal cavalcade. Michael Murphy had not achieved much other than heartbreak and tears since his childhood, so it was ironic that the announcement he was our client moved the western Sydney constabulary when Greg Drake’s battered limousine could not. As part of our preparation of the case, Greg Drake and I had already inspected the paddock but we attended the viewing to ensure there was no irregularity involving the jury. Away from the court complex, the possibility is ever present of something going wrong, such as a bystander communicating with a juror to the prejudice of the accused. At the paddock, there was a light mist of rain and a low fog. It lent an air of eeriness to the tragic scene. The rural tranquillity disturbed only by the occasional lowing of a cow struck a discordant note, as we remembered the violence done there so recently, which had brought us all together.

* * * The trial had lasted three long months. During the course of his summing up, Justice Maxwell said to the jury in a context of reproach: … however, I should also remind you that the attack by the accused on the conduct of the police has also been stark and dramatic. You have had delivered to you in the address of Mr Hosking of Queen’s Counsel and to a lesser degree Mr Mulligan and Mr Bleasel an unbridled attack on the police generally, but more particularly the police officers connected with the investigation of these offences. May I quote some of the allegations that have been put to you: Tearing up the rule of law; Grotesque submission, Obtained by torture; Return to the law of the jungle; Makes a sham and a farce of statements; There has admittedly been violence; Broken on the wheel of police brutality; Trial in a police station – and possibly the worst, ‘broken on the wheel of police brutality’. Mr Mulligan referred to the police activities as being similar to that which occurred when the military took over in Fiji. He also suggested to you that the unusual modus operandi of the interrogator is to be applied to these police, as far as Mr Mulligan’s client is concerned, namely that they are cruel and they are nice and he even went on to recall your memory of events out of the last war and, I assume, he meant to refer to the conduct of the Gestapo. Unfortunately, it was His Honour who introduced the prejudicial idea of that despised outfit, the Gestapo. Interrogations were commonplace for both Allied and Axis forces. Sadly, the judge could only think of the Gestapo. In my early days at the Bar in the seventies, ‘stark’ attacks on police truthfulness were not a happy assignment. Sometimes judicial disapproval was barely hidden. Formulas were designed in a bid to calm the atmosphere and avoid the disapproval of the Crown prosecutor and sometimes the judge. They never worked. The enormity of the inherent allegation was always ruthlessly exposed by them, but with no right of reply. Accordingly, in such a case not calling a spade a shovel became necessary. Sometimes it worked, sometimes it didn’t. Either way, the issues were defined in plain English for the jury. That is precisely what Bleasel, Mulligan and I were endeavouring to do in the much quoted passage from Justice Maxwell’s three hundred–plus pages summing up. For his part, Sandy Wetmore more than did his duty. Unlike the Local—formerly known as Court of Petty Sessions—and District Courts, sound recording was not used in the Supreme Court. Relays of expert shorthand writers recorded the evidence and then dictated the record to typists. Daily transcripts were thus available. Counsel’s addresses were not recorded, but every word of the judge’s summing up was. Strangely, in the event of an appeal, the judge’s summing up is always submitted to them for ‘revision’. Why? If any mistakes have been made it is surely far too late to then correct them. It seemed my address, or parts of it, were recorded by the judge himself, which he then quoted from in his summing up. If anything I had put was wrong or, worse still, improper, such an experienced judge would have immediately interrupted me to set matters right. Alternatively, or additionally, Mr Saunders QC could have interrupted by way of objection. Alan Saunders QC was anything but a timid opponent. One wonders why Justice Maxwell troubled to record my address and, if it was wrong, highlight it as he did by reminding the jury of it verbatim, uncorrected and unendorsed. Yes, it was pretty robust stuff. But my clients’ case had to be put by me as his counsel. The verbiage chosen in the heat of battle is now preserved in legal history. Timidity in putting a client’s case is easier, but surely not preferable. From the first day, this had been a turbulent and tense trial. Since the shock of Mr Haines’s phone call, I had not allowed self-interest to cloud my clear duty and professionalism. Then, in circumstances beyond my control, there was the need to resolve a difference between the judge and me over my client’s demeanour during his summing up. The judge departed from his typed notes and accused Michael Murphy of ‘smirking’ when he was describing Ms Cobby’s injuries. Murphy denied it and I felt obliged to ask the judge to withdraw the remark. This provoked a measure of turbulence, which was seized upon by the press. To put it mildly, this was an awkward moment for me. I feared that even the perception of any intemperate conduct in such an unpopular cause could well derail the Attorney-General’s decision to appoint me as judge, or defer it, perhaps forever. The effect of such an observation by the trial judge, particularly as my client, for what his word was worth, denied it, was so gravely prejudicial I believed I had no alternative but to protest courteously. Failure to do so would have been grossly unfair to my client and a clear dereliction of counsel’s duty. Justice Maxwell, thankfully, had a strong sense of justice and propriety. He withdrew the remark; a gracious closure, given it does not need a powerful imagination to work out whose version the world would prefer out of Michael Murphy and a distinguished Supreme Court judge. This did not stop the Court of Criminal Appeal later making an oblique criticism of me, noting my back would have been to the dock, and therefore the accused, at the time. That is simply not the case. In No. 5 Court at Darlinghurst the bar table is at right angles to the dock and the Bench and facing the jury box. In any event, the application was made on the basis of urgent contemporaneous instructions given to me by my client from the dock, via my solicitor Greg Drake. I was, as I had been throughout the trial, acting on instructions from my client. My own opinion played no part in making the request. The inscrutability and confidentiality of the jury room shields the tenor of their deliberations. They were instructed by the judge to banish prejudice and, to use the words of the juror’s oath, to ‘well and truly try and true deliverance make’. Pre-judgment and prejudice would have brought swift verdicts. The jury deliberated all day and were locked up in a secret location overnight to continue their deliberations. They were obviously conscientious and, from time to time, sought Justice Maxwell’s help. All communications were proper and in open court in the presence of the accused. First thing next morning, all accused were convicted on all counts.

* * * At this stage you’d think the court battles would be over: the verdict was in and all we had to do was await the sentence, which seemed pretty predictable. But there was a shock awaiting Leigh Johnson, Sandy Wetmore’s dedicated instructing solicitor. In a trial marked with constant tension and clashes at the bar table, there was no tenser moment than when Alan Saunders QC rose and asked Justice Maxwell to cite Leigh Johnson for contempt of court. Contempt of court is very serious. It can result in a gaol sentence, a heavy fine or even striking off the roll of legal practitioners. Leigh Johnson was a rising young solicitor with a soft spot for the underdog. She was instructing the able Mr Wetmore in this trial on a legal aid assignment. Had Ms Johnson criticised Mr Saunders, the police or, worse still, the judge himself? No, she had, after verdict, made a critical comment about the press, which it picked up. It seems, in answer to questions outside court, she had complained about what she perceived to be press bias. Like the rest of us, the press are not perfect. They make mistakes. An example of press error was the publication, on day one, of my client’s criminal record in The Sun newspaper. Leigh Johnson’s ‘contempt’ was blown out of all proportion for an inexperienced young solicitor. The comment was not made at a press conference. The media are hardly shrinking violets, too shy to thrust microphones and questions at participants outside court after a dramatic event inside. Justice Maxwell promptly referred the issue to the authorities. Leigh Johnson survived and, over the years, built a reputation for accepting this and many other unfashionable legal aid cases.

* * * The morning for the sentencing had arrived. At ten am there was a slight delay as Anita Cobby’s parents were not in court. When they arrived, all that remained was the formal ritual of judgement. Everyone in court thought they knew the result: life. Even so, there still was the possibility that release one day would not be excluded. Personally, I wondered if a future government would ever be brave enough to give any of the five an opportunity for release, however deserving. It would be, I thought, decades away before such a decision would have to made. The judge entered and was seated. Then the five accused, together for the first time since the first day of the trial, were brought up into the dock. There were police everywhere. The atmosphere in the courtroom was one of unprecedented tension. So high was the emotion, at one stage, the experienced, calm and respected judge, Justice Maxwell, was moved to tears. The press recorded him stopping with tears in his eyes and drinking a glass of water before resuming his remarks. Defence counsel had faced a hopeless task in securing a calm, detached hearing from the jury, but I had never seen a judge so upset before. When Justice Maxwell formally passed the sentences, ‘penal servitude for life’, the dignity of the Central Criminal Court gave way to wild scenes, and uniformed sheriffs struggled perfunctorily to restore order. The court had momentarily descended into unseemly uproar. In addition, Justice Maxwell specified and passed upon each of the five the following sentences: kidnapping, sixteen years; robbery with wounding, seventeen years; maliciously inflict bodily harm with intent to have sexual intercourse, twelve years; and theft of a motor vehicle, five years. To put it bluntly, the long concurrent sentences imposed were purely academic gestures. Justice Maxwell concluded with these words: ‘The circumstances of these prisoners and the circumstances of the murder of Anita Lorraine Cobby prompt me to recommend that the official files of each prisoner should be clearly marked, “Never to be released”.’ Justice Maxwell acidly observed any future plea for mercy by the five should receive the same level of mercy which they showed Ms Cobby that fateful night. No one had expected this bombshell. Not even the hardline Crown Prosecutor had asked for it. The judge then added more gratuitous, emotive remarks designed to influence authorities long into the future. As the law then stood, it was wrong for the judge to do so. It would be misleading to suggest this directive by the respected judge was greeted with anything other than overwhelming community approval. But that is not the test. Calm judgement is. Then came a sombre The Sun newspaper front-page headline, JAILED FOREVER. The article quoted the vastly experienced Justice Maxwell’s statement that this crime ranked with the worst he had encountered in his forty years with the law. Sadly, this was undoubtedly true. On reflection, there is perhaps little value in seeking to classify murders. Each has one awful feature in common: a valuable, innocent life has been needlessly and irrevocably taken. Except in cases of domestic violence, there are seldom any mitigating factors. There was no opportunity given to the Crown or defence to make submissions on the judge’s shock intention to add ‘never to be released’. There are all sorts of arguments which could have been advanced if we had not been ambushed. After the resultant gallery uproar, the trapdoor in the floor of the dock was opened by uniformed guards and the five stumbled down the steep wooden steps to the cells below and returned to prison. This would be their last time in a non-gaol environment not just for decades but, now, forever. The order was punitive and popular, but not logical. Fitness for eventual release, or indeterminate detention, is decided, if ever release is considered, decades down the track. Certainly not at the time of sentence. It is a fundamental principle of the criminal law that a prisoner, however reviled, is entitled to be heard before any order affecting their liberty is made. It was simply not done in this case. It is no answer to the criticism to say, in all probability, the judge would have added the rider in any event. Nor does the fact that the words ‘never to be released’ were highly popular with the media and public make it right. In 1987, a life sentence did not automatically mean spending the rest of one’s life in gaol until death. A life sentence guaranteed gaol, then lifelong supervision and sanctions and help. Fourteen years later, in 2001, New South Wales Parliament legislated to provide that a life sentence could mean that only death in gaol would see the completion of the sentence. This was claimed to be an advancement on the Sentencing Act 1989—truth in sentencing. In 2015, the fluctuating New South Wales gaol population was roughly around the 12,000 mark. There were fifty-one ‘lifers’ according to an article in the Daily Telegraph on 29 July. Only a handful of those fifty-one were post-2001 ‘die in gaol’ lifers. As was my custom, I went down to the cells with Greg Drake after the sentencing drama and uproar and advised Michael Murphy of his rights of appeal. I also told him other counsel would now be briefed to advise him in that regard. I did not tell him why. He expressed his thanks for my efforts over the past year and remarked, quite genuinely, he could not imagine what would have happened to him if he had not had the benefit of my professional services. Given, minutes before, he had been sentenced to penal servitude for life, with a gratuitous order he never be released, one hesitates to speculate what he meant.

* * * The challenge of the Crown’s assertion of common purpose by me was not legal fantasyland. Peter Hidden QC, leading Virginia Bell, both Public Defenders, argued its importance on appeal. Mr Hidden QC had just been appointed Senior

Public Defender and was on his way to the Supreme Court bench. Virginia Bell outdid her leader in two ways. After taking silk, she was elevated to the Court of Appeal and then to the High Court of Australia. Although I had left their chambers by the time the appeal was heard, I feel I may still claim, with some pride, their participation was one of the Public Defenders’ finest hours. It was a most difficult case and two of the finest lawyers, not only in the state of New South Wales but the nation, gave it their utmost. It was an unmatched legal quinella of learning, talent and commitment. The ‘never to be released’ order was a forensic ambush by Justice Maxwell. He, at that time, had no power to make it. It came completely without warning and, more importantly, denied the prisoners the opportunity to call evidence or make submissions to prevent it. Also of note is the absence of any specific endorsement of that order by the Court of Criminal Appeal in its detailed 81-page judgement when dismissing the prisoners’ appeals. After hearing argument on each ground of appeal, the presiding judge, Chief Justice Sir Laurence Street, conferred with his brother judges, Justices David Yeldham and Mervyn Finlay, and then progressively delivered lucid, eloquent ex tempore judgements at the end of argument on each ground. The other judges agreed with the Chief Justice each time. This process continued with each ground of appeal until a conclusion was reached. It was an intellectual masterpiece, with the only uncorrected error being that relating to Leslie Murphy alone and his mental incapacity, which won him a new trial by order of the High Court.

* * * Leslie Murphy was granted a new trial, but his success was short lived. The retrial took place before Justice Jeremy Badgery-Parker. Murphy was again convicted and sentenced to penal servitude for life—this time without the gratuitous ‘never to be released’ rider. The request it be added, which Alan Saunders QC made, notably for the first time, was rejected by Justice Badgery-Parker. Plainly Mr Saunders QC had adopted Justice Maxwell’s stern sanction between trials. Justice Badgery-Parker, however, was unpersuaded. Leslie Murphy, therefore, is the only one of the five with his prison file not marked ‘never to be released’. Surely this must permit a flicker of light for him at the end of the metaphorical tunnel. Even if always a ‘lifer’, Leslie Murphy might earn an occasional extra hour out of his cell in the sunshine, or another small privilege. None will ever minimise the gravity of the conduct which landed him and his disastrous brothers in gaol in the first place. Due to a serious error made by Justice Maxwell, which the Court of Criminal Appeal noted but did not correct, the High Court ordered for Murphy a new trial. Justice Maxwell had made a mistake in excluding, from the jury, evidence of Leslie Murphy’s mental retardation. Even good judges are not infallible. The evidence, which he wrongly rejected, went to the jury’s acceptance or otherwise of Leslie Murphy’s disputed police record of interview and, thus, his involvement in the murder. The Court of Criminal Appeal accepted this was a wrong ruling, but declined to correct it. Legal aid continued for the Leslie Murphy retrial and then to explore the legal avenues after his conviction the second time. Dedicated private lawyers had appeared from the first day in court at Westmead Coroner’s Court, to the committal hearing at Glebe, the trial at Darlinghurst, the Court of Criminal Appeal Queen’s Square, the High Court of Australia in Canberra and, for Bradley Mulligan, Leslie Murphy’s retrial at Darlinghurst. What legal aid achieved for Leslie Murphy underlines its worth. In the end, however, it was all for nothing. Was it a shameful waste of taxpayer’s money? That would certainly be the view of many. But the High Court does not lightly intervene in criminal matters. That it did in Leslie Murphy’s case, and ordered the retrial, is all part of the checks and balances of our system of justice. Ill-educated and illiterate, all five defendants had zero chance of understanding, let alone helping themselves if they remained unrepresented in a criminal system where justice is a mandatory requirement. Legal aid–funded representation was the watchdog.

* * * Michael Murphy was thirty-three when he was sentenced. In 1994 The Sunday Telegraph interviewed him. The article revealed he had not given up hope and was studying in gaol and learning a trade. He was estranged from his family. I read in the same newspaper in July 2015 that, due to a public protest unrelated to him, his prison classification has been adversely hardened. It is likely Michael Murphy will remain in gaol until he dies. That might well be the expectation of the community. Life imprisonment offers no hope of redemption, no recognition of rehabilitation as the years and decades pass. This is pure retribution and vengeance. The execution of the person in this situation would, although barbarous in the extreme, perhaps be more humane. The last hanging at Long Bay was in my lifetime, in 1939. Between 1901 and then, there had been twenty-three executions in New South Wales, as cited in the Australian and New Zealand Journal of Criminology Vol. 9. Today, the sentence of life imprisonment without the possibility of release is the law, explicitly sanctioned by a statute, which was passed by the parliament. This is the modern approach. It is hardly enlightened. While it is now the law, it is not retrospective. On the meaning of a life sentence, backpacker serial killer, Ivan Milat, was quoted in The Daily Telegraph on 1 April 2015 saying, ‘the longer I live, the longer my sentence is’. His life sentence was not mandatory, but discretionary, and expressly authorised by a post-Anita Cobby amendment to the Crimes Act. The experienced Justice David Hunt’s sentence was that Milat remain in gaol for the rest of his natural life. The United States of America has many states with ‘life without parole’ sentences. They are certainly popular. Others have the firing squad and lethal injection replacing those ‘humane’ alternatives of hanging, the gas chamber and electric chair. More uncivilised modes of execution in the Middle East do not bear comparison. It is interesting to repeat, in respect of ‘never to be released’, that the Court of Criminal Appeal was silent and the court’s findings, regarding sentence, barely occupy half of the last page of the 81-page judgement. The appeals are simply ‘dismissed’ but, inscrutably, the three judges specifically direct ‘the whole of the time served is to count’. If that involves an endorsement of the ‘never-to-be-released’ sentence, it is a curious means of expressing it. What possible benefit could there be in allowing credit for the year or so already served, if the court has just ordered that the five die in gaol? The police did their duty and were commended for it. The judicial process has run its course and has touched every level of the legal hierarchy. There has been the closest of appellate scrutiny. Now, the future of the five lies in the hands of some future executive government, not the courts. The provision of top-level advocacy for persons perceived to be undeserving is not well accepted by all. The worse the crime, then the deeper the public anger and the greater the need to ensure competent representation for any accused. Without it, a fair trial would be difficult if not impossible—just think of that dummy hanging from the tree in the Westmead Hospital grounds. A calm, composed, careful and competent judicial process is what we all aspire to. When it is achieved, justice is never denied.

Punishment remains an integral part of the penal system. The hangman’s rope and the lash gave way to the brutality of Grafton Gaol and the infamous OBS at Long Bay, where those condemned to hang awaited their fate. Then Katingal: modern, air-conditioned, no access to sunlight or human contact. Abolished. Demolished. Now Supermax at Goulburn. Forgotten from sentence until death.

CHAPTER

14 A Cautionary Tale …

It is always proper and correct to tell the truth, the whole truth and nothing but. In the justice system, at the time of arrest, telling the truth can, however, backfire. What we perceive as being an accident or misadventure can, in the eyes of the law, be a criminal act. I am not advocating lying here, quite the contrary: what I do advise is to keep quiet and seek legal guidance. The following story will explain why.

* * * Justice Michael Adams is a fine lawyer and a big man in more ways than one. Shakespeare said it best: ‘And then the justice in fair round belly with good capon lined, with eyes severe, and beard of formal cut, full of wise saws and modern instances.’ Those memorable lines are from the Seven Ages of Man speech in As You Like It. They describe Mr Justice Michael Adams to a tee. I never appeared before him, but we served together as public defenders. One case in particular stands out in my mind and, as prefaced, is a cautionary tale. I was briefed to appear at the Yasmar Children’s Court at Ashfield for a twelve-year-old boy charged with the manslaughter of his younger brother. The family lived on an orchard near Windsor. One day, skylarking with his brother, the boy fired a rifle which was kept nearby for use by his parents to scare off crows. The little boy was hit. He was beyond help when the ambulance arrived. The family, who were decent people, called their local clergyman and then the police. Not appreciating they were laying the foundations of another tragedy in the family, the parents and the minister advised the older boy he had nothing to fear and to ‘just tell the truth’. The police interviewed the boy. Applying the strict letter of the law, the boy’s answers made out a prima facie case of manslaughter. The boys’ mother and father were orchardists, and they had no knowledge of the concept of manslaughter by criminal negligence—the family regarded the death as a tragic accident. Of course, the boy had been careless, but he was barely a teenager. If committed for trial, he and his parents faced the ordeal of trial before a judge and jury at Darlinghurst. The likelihood of him being put in a boys’ home as punishment for causing his brother’s death chilled the blood. To me, the authorities and the police were acting coldly and unsympathetically. How else could this situation have developed to this point? The case deeply troubled me. It seemed to be one where the application of the law would cause injustice. Although on holidays at the time, Michael Adams generously offered to help me in the case. We had a number of conferences with the boy and his parents. Michael Adams then hit upon the strategy of seeking to have the interview excluded on legal grounds. The masterly argument, which he developed, was that the confession was not ‘voluntary’ and therefore was obtained contrary to the then Section 410 of the Crimes Act. If this strategy was accepted it would render the confession inadmissible. The lack of voluntariness was not the result of improper police pressure, but the fact the confession was induced by a ‘person in authority’. The authority being, to use the words of the section, his parents and the minister. As Adams explained it, the boy had been instructed and advised by his parents and the minister to answer all of the police questions. Naturally, he did as he was told. Without his statement, the police really had no case against the boy. The courtroom at Yasmar Children’s Court was the drawing room of the stately old home of the Ramsay family. The name Yasmar comes from Ramsay spelled backwards. The home is at the end of a long driveway leading from Parramatta Road opposite the landmark former Arnotts Biscuit Factory at Ashfield. The informal surroundings were designed to put young offenders at ease. The last time I had been there was to have a conference with a juvenile who had stabbed a taxi driver while robbing him. A detention facility adjoined the house, which has long since closed. The Children’s Court magistrate at Yasmar was Mrs Helen Larcombe. She listened impassively to the evidence and then my submissions on the admissibility of the statement. In the confined surroundings of the hearing room, Mrs Larcombe could not fail to hear Michael Adams’ frequent suggestions being boomed to me in his loud voice as I sought to persuade her. With a refreshing informality, she asked me if I would mind if she heard from Adams. I happily obliged and Michael Adams gave a strong presentation. Most magistrates would defer making a decision on such an argument, leaving it for a judge further down the judicial track. To the joy of the young boy and his family, and to our own, Michael Adams’ arguments prevailed. The magistrate dismissed the charge and the relieved lad was able to go home with Mum and Dad. He had suffered enough with the loss of his brother. He didn’t deserve to lose his freedom too. The young boy was fortunate in having the benefit of Adams’ learning and ingenuity. He was also fortunate in facing a magistrate who, while courageous and sympathetic, more importantly, also had a sound grasp of legal principle. Subsequent statutory amendments to the Crimes Act have transformed the law in relation to the admissibility of confessions, but certainly not for the better. Today, they are less protective of the person being questioned. The two virtues of the tragedy in the orchard case are Michael Adams’ adroit arguments, with which he brought the boy within the law as it then stood, and Special Magistrate Helen Larcombe’s compassionate judicial temperament.

CHAPTER

15 Never a Dull Moment …

The law is serious business. As I’ve stressed, people’s lives are at stake and a barrister’s job is to do their best for their client and the client’s family, remembering it is not the barrister who serves time in gaol if things go wrong. Having said this, there are moments of subtle humour and unexpected happenings that creep into the court. These moments do not affect proceedings in any way, but provide us stiff shirts with some points of conversation at the end of a long day. The following are such events.

* * * During a trial, potential forensic disasters can arrive without warning. That is, situations where a client, unknowingly, falls into a trap which then puts into question their protests of innocence. I was appearing before Judge John Brennan and a jury for a solicitor who, with her husband, was charged with an offence involving dishonesty and improper access to a Commonwealth Bank safe deposit box in Martin Place. Judge Brennan was an experienced and able judge of superb judicial temperament. He was widely respected for his calm, courtesy and impartiality. The prosecution case relied heavily on establishing the identity of the person who accessed the safe deposit box. Naturally, my client denied being that person. There was no security footage to help the prosecution. So, identification was reliant on who filled in the brief questionnaire, which was the bank’s procedure to access the box. The disputed identity had written, among other things, the word ‘forty’, but had spelt it as ‘fourty’. Handwriting experts were called by both sides and, of course, couldn’t agree. The solicitor was giving her sworn evidence when, quite innocuously, Judge Brennan softly asked the solicitor to write, in words, the number forty on a fresh piece of paper. The solicitor complied. Taking the pen and paper she dutifully wrote, ‘fourty’. Such an event was dramatic, compelling and damning to my client. Even so, the trial proceeded and my client, believe it or not, was acquitted, as was her husband.

* * * Another example of a client unwittingly falling into a trap occurred when I appeared for a lady who would have looked out of place sitting in the public gallery, let alone sitting in the dock of No. 1 Court at Darlinghurst. But here she was, sitting in the same dock which, in previous weeks, had been occupied by a bank robber, a prison escapee and an arsonist, to list just a few. She was a lady from one of the leafy, wealthy suburbs of Sydney. In her late sixties, she was neatly attired in a sober dress and twin set and sensible shoes. She was everyone’s grandmother with the requisite white hair, recently permed. What brought her to this? The roots of a shrub in her garden had encroached on her neighbour’s property by growing under the fence. Conciliation failed. Tempers flared. The neighbour, who was not a gardener himself, chose to exercise his undoubted sovereignty over his property by tearing out the offending roots with great vigour, choosing a time when the accused was turning over the topsoil of a garden bed with a garden fork. Alas, misfortune. The fork impaled the fingers of the grumpy neighbour. Such were the injuries he needed hospital treatment and he was taken there by ambulance. The police were called and my client was charged with malicious wounding. A trivial dispute had gone completely out of control. I was confident a jury would bring perspective and ultimately justice to the matter. The neighbour was a forceful and stubborn man, and it showed. My client, as her appearance revealed, was the complete opposite. She loved her garden. Other than her church, husband, family and bowls, the garden was her life. Usually, I did not favour the witness box; I preferred the accused tell their story directly to the jury from the dock, thereby avoiding cross-examination or any adverse comment. This time, however, given my client’s age and demeanour, I advised her to enter the witness box. After all, her case was simple: she was working in her own garden; she intended no harm. In short, the whole incident was misadventure. She told her side of the story and was unshaken by gentle cross-examination. Judges seldom enter the arena although they are permitted to do so. In this case, the presiding judge, ‘Mick’ Boulter, did as he was entitled and entered the fray. While still in the witness box, the judge instructed my client be handed the offending garden fork. I objected, with a feeling of imminent disaster. I was overruled. His Honour was not noted for a predilection for defence cases. The judge then asked my client to demonstrate exactly how she was using the fork when the neighbour suffered his misadventure. I watched with horror as she wielded it from chest height with a downward force which would have been the envy of a champion axeman at the Easter Show. Softly, the judged asked her to repeat the demonstration, which she did. To risk understatement, none of this assisted the accused’s case. Then the judge said he was having some difficulty observing the demonstration and invited my client to step down from the witness box to the floor of the courtroom, right in front of the jury box. All eyes were directed at her. She repeated her action and crashed the fork with enormous vigour into the brown linoleum where it made a quite loud thud as it thumped and quivered. The atmosphere was suddenly awful. She returned to the dock. After the Crown’s and my closing addresses, His Honour turned to the jury and summed up in a gentle, calm and even friendly way. He emphasised the need for cool reason during deliberations, and he need to put to one side any feelings of sympathy or emotion. He reread the medical evidence and drew attention to the photographs of the victim’s injuries. Finally, he told the jury any question of punishment was entirely out of their hands and exclusively in his. He, however, assured them he was very experienced and was adept at tempering justice with mercy. The lady was taken to the cells below to await her fate. This had not been the trial of the century, but it certainly reminded me of how enormously influential the judge can be to the outcome. After an awfully long retirement the jury

returned and found my client ‘not guilty’. She was freed to till another day.

* * * In the early 1970s I was defending a man on trial before Judge GP Donovan and a jury in No. 2 Court at the Penrith courthouse. The Crown prosecutor was Bob Lord. My client faced four fairly improbable charges involving alleged false pretences by him. It was his oath against the victim’s oath. The victim, whose surname was Nixon, had given his evidence in chief and it was my turn to cross-examine him. My questions began along the lines of, ‘Your name is Nixon?’ and the answer came in the affirmative. I then asked, ‘Are you related to the president of the United States?’ Judge Donovan volcanically intervened. ‘Really, Mr Hosking! What on earth can that possibly have to do with this case?’ The accused’s defence, in essence, was that the victim was a seriously deluded person. Following my client’s instructions, I therefore pressed the question again and, impatiently, the judge allowed it, remarking it was probably better to let me go on or we would be there all day. Then came the answer my client and I had hoped for. ‘Yes, I am related to President Nixon. In fact, I am his elder brother. After President Kennedy defeated me in the 1960 presidential election I retired from politics. After LBJ [President Lyndon B Johnson] decided not to stand my brother, Richard, stole the Republican nomination from me and was elected president.’ We were not there all day after all. The accused was acquitted.

* * * One time when I was working in private practice, again in the seventies, our chambers had a visit from a man who had made his fortune in the rag trade. His dilemma? He had been stopped by police and given a defect notice and fine of $20 for having a bald tyre. Hardly the stuff of legend, but it remains firmly in my mind. The man was as arrogant as he was rich and he wanted to fight the notice. He wanted the best and he wanted Tony Bellanto QC, that very fine and experienced criminal lawyer, to be briefed. Mr Bellanto believed, rightly, his talents were better suited to more serious matters. Not wanting to offend the client with a simple no, he decided to price himself out of the job. He told the client it would cost him $1200—an outrageous sum for the time. The client agreed. Taking me on as his junior, Bellanto and I waited in the Pymble Hotel carpark early one cold, foggy morning in July. The offence had occurred in the lower Hunter, about a two-hour drive north of Sydney, in the town of Kurri Kurri. Our client offered to drive us up. Mr Bellanto had asked the client to bring along the offending tyre. He did. In fact, when he arrived, he opened the boot of his red, top-of-the-line Mercedes, to show us several tyres in varying stages of wear. ‘There you are, Mr Bellanto. Take your pick. Which one do you think would be best to use?’ Bellanto was offended and appalled and suggested we call it a day. Having come this far, however, he was persuaded to continue his representation. I was extremely thankful, as this one case meant I had earned enough to pay my chamber’s rent for the month. Appearing at the Kurri Kurri Court House, our client pleaded guilty. Mr Bellanto delivered his usual tour de force in his speech in mitigation. The magistrate then decided not to record any conviction. Our client was ecstatic and overly thankful. He believed we had carried the day, but we knew better. It was very likely our client would have received the same outcome if he had chosen to be represented by the court’s duty solicitor. Still, a nice little earner, as they say.

* * * The following anecdote continues to do the rounds of barristers’ chambers to this day, though it does become embellished with each retelling. Even so, any reputation I may have had as a barrister was never enhanced by what you are about to read. When Justice Adrian Roden was a barrister, he and I got along well. Not friends, but well enough. Once he was elevated to the Bench, and I remained a barrister, something happened. Our professional relationship, for want of a better word, faded. To be fair, Justice Roden was a perfectionist and his advocacy technique as a barrister was precise and searching. As a judge he strived to achieve, from those who appeared before him, the same high professional standard. During sentencing proceedings, Justice Roden didn’t like hearing oratory from the barrister, nor did he rely just on the facts to determine what sentence to impose—he liked to hear from the client. Even then, it was rare for the judge to be impressed. Time and time again, the learned judge would reject the client’s evidence, including displays of remorse. He would impose a sentence based on his subjective assessment, which proved impregnable on appeal. In these circumstances my strategy was to rely on my client’s statements and avoid any interrogation by His Honour. It is, as I’ve stated before, never smart to antagonise any judge. On this occasion I was defending a man who’d shot a young boy dead. He was initially charged with murder, but the Crown reviewed the facts and later offered a plea of manslaughter. My client accepted. In the sentencing context it was my opinion this was manslaughter at the lowest end by criminal negligence, not the more serious scenario of an unlawful and dangerous act. Not advising my client to take the stand was my first mistake in upsetting Justice Roden. As I put the facts of the case forward, His Honour frequently interrupted and corrected me. When I argued the incident was a misadventure, Justice Roden looked down at me and asked, ‘That may be, Mr Hosking. But a vital question remains. How does your client explain the events leading to this tragedy?’ I hung my head, thumbing through the transcripts of my client’s record of interview. These were my client’s words, accepted by the police and unchallenged. Obviously I was taking too long with my answer, because Justice Roden impatiently raised the question with me again. ‘Well, Mr Hosking? I suppose I must put the question in words even you can understand. How does your client explain why the gun was loaded?’ ‘I don’t f***ing know.’ Justice Roden became flustered, understandably angry and threatened to discipline me unless I apologised and spoke respectfully. I looked up and, with my finger digging into the page, explained, ‘“I don’t f***ing know.” This was answer forty-six in my client’s record of interview, Your Honour.’ Justice Roden severely sentenced my client which, thankfully, was overturned at appeal. This encounter was brilliantly retold by journalist Malcolm Knox in his book Secrets of the Jury Room. The noted Victorian silk, Julian Burnside QC, quoted the ‘lively’ exchange in his review of Knox’s book. Maybe this had something to do with my being made a reserve judge in Victoria after my retirement?

* * *

There was another notable encounter with Justice Roden, which was retold at my swearing-in when I was appointed as a District Court Judge. The Solicitor-General, soon to be president of the Court of Appeal, Keith Mason AC QC, did the honours. He told of a time when I was, again at a sentencing hearing, presenting my client’s case for leniency, as Mr Mason put it, ‘in a way that was, no doubt, the closest to a silk purse that the particular sow’s ear would allow’. In any case, as I continued, my client suddenly started shouting profanities from the dock. I ignored the outbursts and went on with my submission. Of course, the swearing and volume increased and Justice Roden soon had had enough. He called for order and glared at me saying, ‘Mr Hosking, I think your client is trying to get your attention.’ I quickly and innocently replied, ‘My apologies Your Honour, I thought my client was addressing the Bench.’

* * * Judges are sometimes portrayed by popular culture as living in an ivory tower and being devoid of humour and with little—or no—personality. Judge George Smith QC is a strong exception to this stereotype. I remember when a sentence case of mine was called before Judge Smith. The facts and my client’s criminal antecedents were placed before the judge. As I rose to present the prisoner’s case, the judge said, ‘Yes, Mr Hosking this is, of course, a very tragic case.’ Encouraged by the judge’s sympathy for my client, I enthusiastically enquired, ‘Has Your Honour already read all the papers and reports?’ ‘No,’ he replied, ‘I just thought all your cases were tragic ones.’ Clearly, I had my work cut out and needed to introduce more variety into my repertoire. Another time, Judge George Smith interrupted the monotonous recitation of a long list of property stolen from a house. When the Crown Prosecutor read, ‘… and one clarinet,’ the judge interrupted, ‘I’ll stop you there, Mr Crown. I want you to know that anyone who steals a clarinet starts off a long way in front in my court.’ Perhaps His Honour had suffered having a noisy teenage neighbour. During the same sentencing proceedings, pleading for his client, colourful Canadian-born barrister, David ‘Sandy’ Wetmore, who was appearing for the young burglar, announced with a flourish in his broad North American accent, ‘Your Honour, my client will take the stand.’ The judge dryly observed, ‘Well, I suppose that is fair enough, Mr Wetmore. He has taken just about everything else in New South Wales which was not nailed down.’ George Smith’s easy judicial style created an atmosphere conducive to justice. His occasional humour was never cruel or unkind. Incidentally, Wetmore’s client received a three-year good behaviour bond.

* * * To end, there’s a quote from The Honourable Justice Keith Mason AC QC which is very true of those serving in the judicial system. It reads: ‘At the end of the day, judges and lawyers find it impossible not to be themselves, more or less, both on and off the bench.’

ACKNOWLEDGEMENTS

This book would not have been possible without the assistance, encouragement and understanding of the following people. Thanks to Kaye Tanner (nee MacDougall) who gave me invaluable support in researching this book. She and I were secretaries on the personal staff of The Hon Wal Fife when he was Minister for Mines in the Askin–Cutler New South Wales government. Her industry in researching the case of Mrs Dawson was outdone by her locating the transcript and newspaper articles for Chapter 2, ‘The Trial of Lady Chatterley’s Lover’. Then she proudly informed me that the judge was her uncle, Judge AG (Alec) Muir QC. He was also the judge in the trial of Chief Magistrate Murray Farquhar in which I also appeared, not as counsel but as a defence witness. That is not recalled in this book. To Des ‘The Ibis’ Andersen QC, whose support and inspiration saved my faltering career at the Bar from extinction. As did the late Judge Alan Viney QC who, in his solicitor days, sent me my first brief. Also Alister Henskens SC MP, Member for Ku-ring-gai, who assisted me to gain access to Supreme Court records. The Attorney-General for her permission to use official transcripts and law reports. Dianne M Johnston of DMJ Business Services for her patience and skill in deciphering the hieroglyphics of the handwritten manuscript. John Stewart, ABC television journalist. Stephen Jupp, manager, Court Services and Prothonotary Supreme Court of New South Wales and the staff at the Armidale Heritage Centre for access to the Armidale Express coverage of the Colleen Dawson murder trial. The distinguished Dr Angus M Cottee of Turramurra, without whose medical judgement and skills, in 2010 and again in 2012, the author would not have been available to produce this literary masterpiece. To Selwa Anthony, for having the faith. And finally to my only son, James, whose decision for our family to make that sad final trip to Boggabri in 2012 inspired this book.

INDEX

Aboriginal Legal Service 172, 181 Aboriginal people see Veen, Richard accidents 261–263 Ackland, Richard 214 Adams, Michael 5, 187–189, 191, 197–198, 201, 203, 213–214, 260–263 Aickin, Keith 170 alcohol, legal responsibility and 55–56 alibis see Maric, Angelo Alister, Paul 185–187, 189–193, 196–197, 203–205, 207–208, 213–214 Allen, Paul Anthony 154–157 Ananda Marga case vii–ix, 183–214 Wood inquiry ix–x Andersen, Des ‘The Ibis’ 32 Anderson, Tim 183–214 legal representatives 193–196 senior lecturer position 213 Anita Cobby case 224–259 Gary and Grace Lynch 227, 237, 251 armed robbery see Synnerdahl, Carl arson see Lady Chatterley’s Lover trial assault see also Lady Chatterley’s Lover trial; Schneidas, Peter by police, allegations of 239–240 audio recording of interviews see electronic recording of interviews Australian Secret Intelligence Organisation (ASIO) Ananda Marga case 184–185, 191–192, 196, 201–202 Yugoslav-bombing case 216–217 autopsies see Dawson case Badgery-Parker, Jeremy 256 Bagoly, Tanya 154–155 Baker, David 14, 18, 26, 28, 33, 35, 42 bank robbery see Findlay, Gary Barclay, William 152–153, 155–156 Barker, Ian 192, 211 Barwick, Garfield 23–24, 133–134 ‘battered wife’ plea see Dawson case; Lawford, Michelle Beckett, Roseanne (born Catt) 6 Bellanto, Tony 21, 26, 28–29, 32–35, 124, 269–270 Bellew, Geoffrey 48 Betts, Jenny 245 Birmistriw, Paul 184 Blackstone, William 7 Blanch, Reg 223 Bleasel, Marcus 232, 247–248 blindness, faked 87–91 bombing cases see Maric, Angelo; Tim Anderson case Booth, Robert 151–152, 154 Boulter, ‘Mick’ 267 Brazel, Detective Sergeant 11 Brennan, Gerard 173 Brennan, John 265 Brown, Alan 62, 64, 67, 69, 85 Bruce, Chris 122 Bryon, Ernest 136 Burgess, Nicola 237 Burke, Detective 205 Burnside, Julian 272 Burroughs, Patrick (book character) 90–91 Byrne, Paul 220–221 Callagher, Laurie Jean 152, 154 Cameron, Robert 185–186, 196, 204–205 capital punishment 3, 257–258 Carter, Alec 184 Carter, Prudence 49–59 Catt, Roseanne (later Beckett) 6 Cessnock Correctional Centre, escape from 89–90 Chamberlain, Alice Lynne 3 character evidence 57–59 Charles, Prince 153 children accused of manslaughter 261–263 interpretation of words of. see Dawson case wrongly accused 103, 105–109, 112 CHOGM bombings see Tim Anderson case Churchill, Winston 226 City Coroner’s Court 125, 228

Cobby, Anita see Anita Cobby case committal proceedings 134–135 common purpose, doctrine of 230, 239, 254–255 community anger 253–254, 259 compensation 4–6, 208 confessions 65 see also signed confessions; unsigned records of interviews admissibility of 70, 74, 262–263 to another prisoner 209–210 voluntary 262–263 conspiracy see Tim Anderson case contempt of court 250–251 Cooke, Jenny 239, 241 Cookson, HGD 62, 64 courts, levels of 1 Cox, Russell ‘Mad Dog’ 139–140 Craddock, Jack 95 Crimes Act on admissability of confessions 70, 74, 262–263 on determinate sentences 101 on diminished responsibility 161 inquiries under 104, 199, 204–205 on life sentences 258 Cross, Gloria 124 Cross, Ronald 113, 116–121, 124, 151–152 cross-examinations 191 Dalley, Bev 241 d’Arbon, Michael 193, 196 Dauroff, Gaye 12 Davidson, Tom 105 Dawson, Daryl 173 Dawson case 60–86 children in 61, 63–65, 69–71, 74 Deane, William 173 defence barristers see public defenders Denning, Raymond John 209–211 Desai, Morarji 184 diminished responsibility 55–56, 150, 179 see also Mallard, Rodney Francis; mental illness; Veen, Richard Dix, ME 153 dock statements 28–29, 56, 81 domestic violence see also Dawson case; Lawford, Michelle ‘battered wife’ plea 114 Donovan, GP 268 Doyle, Jim 67 Drake, Greg 246, 250, 254 Driscoll, Linus Patrick ‘Jimmy the Pom’ ix, 9–48 High Court on ix, 22–25, 28, 46–47 Driscoll, Pauline 45–46 Driscoll versus The Queen ix Dunn, Ross 185–187, 189–190, 191–193, 196–197, 203–205, 207–208, 213–214 Eastman, David 5–6 Einfeld, Marcus 187, 197–198, 200–201, 203, 205–206 electronic recording of interviews 46–48, 135, 206 Elizabeth, Queen 153 Enderby, Keppel 100–104 escapees from prison 87–91 Evidence Act 1995 47, 127–128 executions 3, 257–258 exhumation of remains 63–64 expert evidence 4–5 eyewitnesses 126, 135 fabricated confessions see unsigned records of interviews Favell, William 184 Ferguson, James Leighton 152–154 Findlay, Gary 125–132, 135–136 Finlay, Mervyn 255 Finnane, Michael 198, 206–207 fire-lighting see Lady Chatterley’s Lover trial Fitzgerald Inquiry ix Flannery, Paul 124 Flood, Sean 187, 198 Foord, John 23–24 framed victims 6 see also Tim Anderson case; unsigned records of interviews Fraser, Malcolm 184 Free Alister, Dunn and Anderson (Anderson) 203, 208 Free Baba Ananda Marga 185, 192 French, Norman 75 gangs 9–10 gaols, sadness of 2 Gaudron, Mary 173, 200 George Street bombings see Maric, Angelo Gibbs, Harry 23, 133, 205, 222 Gibbs, Stephen 139 Gibson, Bruce 107

Gilligan, Detective 205 Glebe Coroner’s Court 125, 228 Gleeson, Murray ‘The Smiler’ 211–212 Glissan, James ‘Jim’ 104–105, 108, 193–194, 196–198 Godden, Detective 205 Goldrick, John 125–136 good behaviour, remissions for 178, 225 Graham, Geoffrey 105, 107 Greensmith, Mrs 243–244 Gregory, WH ‘Sandy’ 187 Grove, Michael 105, 155, 210 Guerber, HA 120 Haines, Trevor 242, 249 Hall, Edward Marshall 3 Hand, Derrick 228, 233 Hare Krishnas 185, 201 Harrison, Justice 7 Haylen, Wayne 200 hearsay evidence 219 Heazlewood, Colin 14–16, 18, 21–22, 24–25, 28–32, 36, 40–41 Helby, Chris 96–97 Henderson, Geoff 105 Herron, Brian 133 Hicks, David 88–89 Hidden, Peter 172, 254–255 High Court at Darlinghurst 23 leadership and direction from ix Hilton Hotel bombing see Tim Anderson case Hogan, John 23 Hole, RG 64–65, 69, 74, 77, 85 homicide see manslaughter; murder Hoodwinked (book and movie) 87–91 Hosking, William ‘Bill’ (author) vii–x appointment as judge 242–243 description of 232 in Hoodwinked 90–91 ‘tragic’ cases of 272–273 Howie, Rodney N 173 Hulme, Robert 200 humour 264–273 Hungarian interpreter, use of 52, 56, 58 Hunt, David 143, 153, 172, 225–226, 258 Hutchins, Will 214 identification parades 126, 135 innocent people convicted 2–7 insanity see diminished responsibility; mental illness interpreters, use of 52, 56, 58 interviews see electronic recording of interviews; police briefs; unsigned records of interviews intoxication, self-induced 55–56, 58 Isaacs, Simon 72, 74–78 Jackson, Florence 158–159, 163, 165, 174 Jacobs, Kenneth 23, 134, 170 Job, Richard William ‘Bill’ 27–28, 30, 39–42, 45, 187, 189, 191, 207, 222 Johnson, Leigh 250–251 judges, impartiality of 33–34, 42–44, 57–58 jury discharge 75, 235–236 Justice (mythical goddess) 3 Justices Act, Section 48E 133–134 Kaczmarek, Kazimierz and Richard 10–11, 34 Kaldas, Nick 86 Keleman, Robert 173 Kennedy, Ian 228, 240 Kennedy, Marie and Mr 61, 68, 71 kidnapping see Anita Cobby case Kiraly, Jozef 49–59 Knox, Malcolm 272 Koraknay, Stephen 57 Krauss, Peter Werner 121–124 Lady Chatterley’s Lover trial 49–59 Lalor, Detective Senior Sergeant 13 Landa, Paul 104, 193, 199, 213–214 language children’s words. see Dawson case forbidden words in court 241 Larcombe, Helen 262–263 Larkins, Tony 220–221 Lawford, Anastasia 116, 120 Lawford, Michelle 113–124 Lawford, Mr 113–114 Lee, Jack 98, 187, 189–190, 204 legal aid Anita Cobby case 224–225, 229, 233–234, 256–257

Driscoll case 26, 28 Lady Chatterley’s Lover trial 54 Price case 99 Tim Anderson case 193–194, 197 legal representation, right to request 16–17, 20 line-up parades 126, 135 liquor, legal responsibility and 55–56 ‘Lonely Hearts Murderer’ see Mallard, Rodney Francis Lord, Bob 268 Lucas, Bill 160, 163 Luland, Charles 218–220, 222–223 Lusher, Edwin ‘Ted’ 98 Lynch, Gary and Grace 227, 237, 251 Lyons, Catherine 172–173 MacLeod, Stuart 52 Maddison, John Clarkson 125–136 Maddison versus Goldrick 129–130, 133 Makin versus The Attorney-General for New South Wales 174–175 mala fides (‘bad faith’) 77 malicious wounding 265–268 Mallard, Rodney Francis 156–165, 167, 174–178, 180–182 Maloney, Billy 11, 31 Maloney, John Patrick ‘Jake’ 10–12, 18, 31, 34 manslaughter see also Allen, Paul Anthony; Booth, Robert; Ferguson, James Leighton; Krauss, Peter Werner; Lawford, Michelle; murder accidental, by child 261–263 maximum sentence for 178 murder compared 75–78, 114–115, 167, 172, 177–178 Maric, Angelo 215–223 Marr, RJ 23 Martin, Henry 94–95, 97, 100–101, 111 Martin, Josef 216–217 Mason, Anthony 23, 170, 173 Mason, Keith 273 Maxwell, Justice 233, 235–237, 243, 247–253, 255–256 McAlary, Frank 198 McCaw, Kenneth 187–188 McClemens, ‘Jock’ 27 McDermott, Frederick Lincoln 3–4 McDonald, Angus 126–129, 131–132, 135 McGregor, Doug G 133 McGregor, Malcolm 199–200, 205–206 McInerney, Peter ‘Tex’ 97 McInerney, Sally 91 McInnes, Albert Henry 61, 68, 79, 82–83 McLeod-Lindsay, Alexander 4 McMahon, John 66–67, 72 McMillan, Detective Senior Constable 11 McNamara, Glen 48 McTiernan, Edward 113 Melham, Daryl 99, 101–102, 104–105, 108 mental illness 149–157 see also diminished responsibility forensic psychiatry 102 legal insanity 179 sentencing issues 176–179 Mewburn, John 141–143 Milat, Ivan 258 Milton, Rodney 154 miscarriages of justice 2–7 M’Naghten rules 149–150, 179 Moffitt, Athol 132 Molomby, Tom 197 Montgomery, Peter 57 Morey, Noel Charles 10, 12–21, 29–30, 36–38, 41, 48 Morrison, Major 11 Moses 225–226 Muir, Alec 53, 57–59 Mulligan, Bradley 232–233, 257 Mulligan, Mr 247–248 murder see also Dawson case; Driscoll, Linus Patrick; Findlay, Gary; Lawford, Michelle; Mallard, Rodney Francis; manslaughter; Price, Harold and Lorraine; Schneidas, Peter; Veen, Richard innocent people convicted of 3–6 Murdoch, Michael 228, 232, 238 Murphy, Chris 46–47 Murphy, Gary 228, 232 Murphy, Leslie 228, 232–233, 255–257 Murphy, Lionel 23–24, 170, 176, 192, 202, 217, 222 Murphy, Michael 228, 231–232, 235, 238–242, 244–246, 249, 254, 257–258 Mutton, Montague 151 Nagle, John Flood 146–147, 187 Nagle Royal Commission 138, 146, 172 natural causes, death from 6 Newham, Ron 224 Newman, Peter 175–176 Newport, Barry 174–175

Nicholson, Garry Robert 121–123 Nicholson, John 140, 181 Nixon, Mr (not the President’s brother) 268–269 Nixon, Ross 11, 31–33 Norrish, Stephen 172 Foreword by vii–x notebooks, police records in 16–17 O’Brien, Detective 205 O’Brien, John ‘Happy Jack’ 97–98, 161–164, 218–220, 222 O’Hagan, Helen 30–31 O’Hagan, John 14, 16–17, 41 O’Reilly, JK 54, 56 O’Reilly, Merick 64 Papayanni, Cliff 130–133, 135 pardons 3, 207 Pederick, Evan Dunstan 210–213 Peel, Robert 149 Peoples, William ‘Bill’ D 96 Petersen, George 199, 204–205, 213–214 Pettit, JJ 146–147 Pivetta, Steve 89 Pohl, Ziggy 4 police allegations of assault by 239–240 attacks on 247–249 honesty and frankness 85–86 records, in notebooks 16 police briefs 127–131, 133, 134 Porter, Chester 98, 130–131 post-mortem examinations see Dawson case Pratt, Norman David 219 preventative detention 169–170, 177–180 Price, Enid 108 Price, Harold and Lorraine 92–112 Price, Trevor 103, 105–109, 111–112 prison escapees 87–91 Prisoners’ Legal Service 214 Privy Council 174–175 psychiatric illness see mental illness public defenders 1–2, 67, 230, 255 first female 172–173 Hosking’s appointment as 167–168 Synnerdahl’s reticence about use of 91 Purnell, Howard 130–131, 168–170, 220–222 rape see Anita Cobby case Rath, Arthur 166–167, 171–172, 177 records of interviews see electronic recording of interviews; signed confessions; unsigned records of interviews remissions for good behaviour 178, 225 Rhadamanthine courts 120–121 Robert, Stent 96 Roden, Adrian 270–272 Rogerson, Roger Caleb 10, 12–13, 18–20, 41, 47–48, 205, 213 Ross, Colin Campbell 3 Rowland, James 104 Royal Arms, bowing to 26 royal commissions viii–ix, 3, 32, 138, 146, 172 rumour see hearsay evidence Samuels, Gordon 132 Saunders, Alan ‘Slipper’ 231–232, 235–237, 243–245, 248, 250–251, 256 Schloeffel, Mervyn 52–53 Schmalzbach, Oscar Rivers 102–103, 106, 152, 159–160, 163–164, 166–167 Schneidas, Peter 137–148 scientific evidence 4–5 Seary, Richard 184–186, 191–192, 201–204, 207–208 Secrets of the Jury Room 272 Seeto, Anna 187 self-defence considerations Dawson case 68, 83 Krauss case 121–124 Lawford case 114, 117–118 self-induced intoxication 55–56, 58 Sentencing Act 1989 225, 254 sexual assault see Anita Cobby case Shadbolt, Ken 90, 187, 198 Sheahan, Terry 242 Sheppard, Julia 232, 241 Shields, John 67, 73–74, 76–85 Short, Noel 128 signed confessions 230–231, 237–240 Sim, Alistair (film star) 199–200 ‘similar fact’ evidence 174 Slattery, John Patrick 105–108, 110–111, 144–145 Slattery Inquiry 112

sleeping pill use 55–56 Smith, George 272–273 Smith, Greg 179 Snelling, Harold 1 sodium pentothal (‘truth drug’) 103, 106–107, 109–111 solicitors, access to 16–17 ‘pub test’ to distinguish 20 Solomons, Adrian 151–152 Someone Else’s Daughter, The Life and Death of Anita Cobby 232, 241 ‘special leave’ quality 221–222 Stephen, Ninian 170 Stephens versus The Queen ix Street, Laurence 98, 132, 201, 255 suicide possibilities see Dawson case; Price, Harold and Lorraine Sully, Brian 181 Synnerdahl, Carl 86–91 Tanner, Leon 162 Taylor, Robert Lindsay 21–22, 77–79, 83–84, 130–132 Tedeschi, Mark 210–211 Terracini, Winston ‘The Hat’ 5, 159–160 terrorism cases see Maric, Angelo; Tim Anderson case Tim Anderson case 183–214 Toecutters gang 9–10 Toohey, John 173 Traill, John 130 Travers, John 228, 230, 235, 238, 240–245 ‘truth drug’ (sodium pentothal) 103, 106–107, 109–111 ‘truth in sentencing’ 225, 254 truth telling 260–263 underworld cases see Driscoll, Linus Patrick unsigned records of interviews (verbals) viii, ix Driscoll case 16–21, 38 end of 46–48 High Court on ix, 24 judicial inaction and 22 Maric case 217–218 not used by Commonwealth Police 218 ‘pub test’ to distinguish 20 Rogerson on 47 Tim Anderson case 186, 188–189, 204–206, 213 Veen, Richard 156, 165–174, 176–178, 180–182, 221 VERBAL (Murphy’s numberplate) 47 verbals see unsigned records of interviews video taping see electronic recording of interviews Vidovic, Uros 216–217 Vinson, Tony 143 vision loss, faked 87–91 voir dire evidence 75, 240, 243 Walker, Frank 213–214 Wallace, Vincent ‘Vin’ 72–78, 81, 83–84 Walsh, Norman 191 Walsh versus Regina 170–171 Ware, Ronald 57 West, Doris 68 Westmead Coroner’s Court 228 Wetmore, David ‘Sandy’ 232, 248, 250–251, 273 Whitlam, Gough 216–217 Whitton, Evan 32 Wilson, Ronald 173 witness box ordeals 82 see also dock statements witnesses 126, 135 see also police briefs Wood, James Ananda Marga Inquiry 193, 198–199, 201–202, 206–207, 213 Price case 112 Wood Royal Commission viii–ix Woodham, Ron 148 Wran, Neville 184 Wright-Short, Frederick 159–160, 162–163 wrongful imprisonment 4–5 ‘Yagoona Three’ see Ananda Marga case Yasmar Children’s Court 261–263 Yeldham, David 27, 33–34, 42–44, 136, 223, 255 Yugoslav-related businesses, bombing of see Maric, Angelo

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First Published March 2017 ISBN 9781489211071 JUSTICE DENIED © Bill Hosking and John Suter Linton 2017 Except for use in any review, the reproduction or utilisation of this work in whole or in part in any form by any electronic, mechanical or other means, now known or hereafter invented, including xerography, photocopying and recording, or in any information storage or retrieval system, is forbidden without the permission of the publisher. Extract from Someone Else’s Daughter by Julia Sheppard reprinted by permission of Pan Macmillan Australia Pty Ltd. Copyright © Julia Sheppard 1991. This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, resold, hired out or otherwise circulated without the prior consent of the publisher in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. All rights reserved including the right of reproduction in whole or in part in any form. Published by Harlequin Mira An imprint of Harlequin Enterprises (Australia) Pty Ltd. Level 13, 201 Elizabeth St SYDNEY NSW 2000 AUSTRALIA ® and ™ are trademarks of Harlequin Enterprises Limited or its corporate affiliates. Trademarks indicated with ® are registered in Australia, New Zealand and in other countries. Cataloguing-in-Publication details are available from the National Library of Australia www.librariesaustralia.nla.gov.au