Kidnapped

by Mark Tedeschi

  Fred was a bachelor, with a strong Catholic faith and an enormous sympathy for his fellow humans, especially those for whom he appeared: the less fortunate, the friendless, the unlucky. Whereas some subsequent Public Defenders wisely adopted a philosophical attitude to their inevitable losses, he felt each one. When he defended Stephen Bradley for the shocking murder of Graeme Thorne in 1961, he believed his client to be innocent – the only person in Sydney with that belief. Fred felt for each of his clients, worthless though others might think them.

  He was a very careful, meticulous advocate, cautious about asking the adventurous question, hardly ever putting a client in the witness box. In those days Judges and Crown Prosecutors tended to treat accused persons in the witness box with little courtesy and less fairness. He was a superb advocate on pleas of guilty for persons with shocking records. I remember his submission: ‘The Prisoner has paid for those past convictions; he should not be punished again for the same offences.’

  Of all the many fine advocates who have been Public Defenders, few tried harder or more effectively than this able, but extremely modest man. Some counsel who appeared for hopeless, friendless, villainous clients believed that they were entitled at least to sympathy from their counsel. Fred was one of those, but he gave more than sympathy. He gave first class advocacy.2

  * * *

  Just three days after Stephen Bradley’s arrival in Sydney, a brief preliminary hearing of the Inquest into the death of Graeme Thorne opened at the City Coroner’s Court in George Street North before the Coroner, Mr CS Rodgers, in order to allow a single witness who was going overseas to give his evidence before departing. The main Inquest hearing was adjourned until 5 December.

  * * *

  We do not know exactly when or why Stephen Bradley came to change his story and to repudiate the truthfulness of his confessions to the police, but it certainly happened while he was in custody and before the Inquest. This sort of sudden about-face is not unusual in accused persons who are remanded in gaol while they await their committal proceedings or trial. In the prison community there is a hierarchy of ‘gaolhouse lawyers’ who are only too willing to express their views about the best way to defend a case, often based on personal experience in multiple court appearances. The more trials that a prisoner has undergone, the more his opinion is valued – no matter what the outcome of his cases. It was in all probability in this context that Bradley came to realise the futility of his denials of responsibility for the death of Graeme Thorne.

  * * *

  When Stephen Bradley first arrived at the remand section of Long Bay Gaol, he was placed in a protection wing because the gaol authorities recognised that he was at risk of serious harm from other prisoners. Prisoners have their own hierarchies of status and morality, and one who has harmed or killed a child is very much at the lower end. If one believes prisoners, the gaols are full of innocent people, but when it comes to a child killer, protestations of innocence are useless to protect the offender from attacks – both physical and verbal – by other prisoners.

  The protection wings in the gaol system are designed to offer a safer environment to prisoners at risk of harm from their fellows, but in reality they are merely a parallel gaol system in which there is a reduced level of violence, because everyone there is fearful of becoming a victim. The warders in protection are no more able to guarantee safety than they are in the normal gaol population. The protection wings contain a greater proportion of ‘VIP prisoners’ who are of a higher calibre in terms of education and life experience, due to their former positions in society – as police officers, prison officials, government employees, lawyers, doctors, accountants, financiers and other professional people who have fallen seriously foul of the law. The protection wings also house most of the prisoners known as ‘rock spiders’ – those who have preyed sexually on children. Even in the protection areas, the rock spiders are shunned by other prisoners. One will also find in protection the most hated prisoners of all, who are known as ‘rats’ – those who have ‘turned’ and agreed to give evidence for the prosecution. The real aristocracy of the prison population – the safe-breakers, the bank payroll robbers and those who have taken the police on high-speed car chases – would never be seen in a protection wing.

  When Stephen Bradley first arrived at the protection wing at Long Bay Gaol, he was placed in a cell close to the warders’ office, because he was considered to be particularly at risk of harm. Within a few days, though, he had made connections with other prisoners and even with some of the warders. His congenial personality soon won him social acceptance from other prisoners and respect from the warders, who considered him a model prisoner with whom they could share a joke without fear that he might unexpectedly become violent or abusive. Prisoners’ conversations at Long Bay – like inmates around the world – inevitably turn to everybody’s favourite topics: what are you in for; did you do it; when is your next hearing date; which lawyer do you have representing you; what is your defence; have you made any admissions to the police? Countless hours of the day, which would otherwise pass at a grindingly slow pace, are spent discussing the strengths of prosecution cases and the merits of proposed defences. Stephen Bradley’s conversations were no different.

  When Bradley felt safe and confident enough to discuss his own case with a few of his fellow prisoners, he was surprised by their reaction. They were aghast that he had confessed to his involvement in the kidnapping, both orally and in writing; that he had taken the police on a run-around to the various locations involved in the crime; and that he had agreed to participate in a line-up. They were particularly scathing when they heard that he had admitted in front of his own solicitor to the voluntariness of his confessions, pointing out that Mr Holt would now have to withdraw from representing him. It was during these conversations that it was explained to Bradley by one of the ‘VIP prisoners’, who seemed to know more than the others about the law, that even if the prosecution could not prove exactly how or when Graeme Thorne had come to die, he, Bradley, would in all probability still be found liable for the death and convicted of his murder.

  When Bradley protested that the prosecution had to prove beyond a reasonable doubt that it had not been an accident, the other prisoners laughed uproariously and said that he clearly did not know how juries worked. They told him that any jury of ordinary people would be so horrified at the kidnapping that they would hold him responsible for whatever happened to the child while in his ‘care’. The VIP prisoner also mentioned the probability that the Crown would rely on ‘felony murder’. When he expressed ignorance of this, the prisoner patiently explained to him that if an offender commits a crime that carries a penalty of life imprisonment, such as intentionally causing grievous bodily harm that results in a death – even an accidental one – the perpetrator can be convicted of murder, although no death was intended. When Bradley self-righteously declared that he had not inflicted grievous bodily harm on the child, the prisoner raised his eyebrows and retorted, ‘So, how did he get his cracked head?’

  The advice of his gaol colleagues – particularly the ones who had once been part of high society – convinced Bradley that his defence of an accidental death would not stand up against the evidence, leaving him no option other than a total denial or capitulation. The realisation that his previous defence was doomed caused Bradley to go into a great depression. It was the long-term prisoners – the ones who had spent much of their adult lives in and out of gaol, the ones who knew the tricks the police could get up to, and the ones who were well versed in manoeuvres to jerk a miraculous acquittal out of the jaws of an impending conviction – who bucked him up and gave him some hope of a way out of his morass. Any confession, they explained, even a written one, can be challenged. In fact, at trial the accused gets two chances to knock out a confession – one in front of the judge by requesting that he exclude it from the evidence, and another by challenging its veracity in front of the jury.3 Juries, they explained, know that police fabricate
confessions, or forcibly extract them through ‘biffs’, threats of violence or, most insidiously, by threatening to charge family members unless the suspect gives them the confession they want. ‘What kind of threat?’ asked Bradley. ‘Ask yourself what sort of threat would cause you to admit to something you haven’t done,’ they told him.

  After much thought and many more conversations with his ‘gaolhouse lawyer’ friends, Bradley came up with what he considered to be a most credible story of intimidation by the police to explain his willingness to comply with them. They had threatened him that unless he fully cooperated and confessed to the kidnapping, they would haul Magda back from England in a similar fashion to the way they had dragged him from Colombo, and charge her with complicity in the kidnapping. Upon her arrest, the children would be taken away from her, and they would undoubtedly end up in an orphanage in London while she languished in gaol. Surely, any father would understand the intense pressure that such coercion would place on him to comply with the police.

  Bradley’s fellow prisoners had also explained that his counsel did not need to win over every member of the jury. In fact, he only needed to convince a single one of them, because the requirement for a unanimous verdict meant that one vote in his favour in the jury room could thwart the whole process.4 It was unrealistic to hope for an acquittal, but a hung jury would be as good a victory – especially if the Attorney-General decided that there was no point putting him on trial again.

  Bradley had faith in his own ability to convincingly mount his defence to a jury of his peers, and a belief that, with the help of solid counsel like Mr Vizzard representing him, he could convince some of the jurors to his point of view. His main concern was that a jury of twelve ordinary, Anglo-Australians would inevitably be biased against a man like him, who had come from Eastern Europe, who spoke with an accent, and who had been married three times. He had met this kind of prejudice on numerous occasions and been able to overcome it with his charm and intelligence, and he was confident that, if he had an opportunity to project his personality in the courtroom, he would be able to overcome it again. It went without saying that he would need to give evidence in his own defence, so that he could charm that one juror he needed to win over. He made a mental note to tell his counsel to make sure there were some women on the jury. He rarely failed to enchant someone when he set his mind to it, and he was sure that this time he would once again work his magic.

  * * *

  A week or two after Bradley’s incarceration at Long Bay and prior to the inquest, Fred Vizzard went to see his client at the Long Bay Gaol, accompanied by his instructing solicitor, Mr Pat Smith from the Public Solicitor’s Office. Vizzard had already been supplied with copies of all the statements and Bradley’s written confession, and he had read the whole brief very carefully. He recognised that he was to represent the most hated man in Australia, but as the State’s only Public Defender he was accustomed to such situations. He took very seriously the right of any person accused of crime to be represented by the barrister of their choice, and the duty of that barrister to do his best for the client.5 Bearing in mind the confessions, he was fully expecting his client to acknowledge his guilt and instruct him to plead guilty, appealing to the mercy of the court on sentence. There was not the slightest suggestion in the brief that Bradley was suffering from any mental illness, so a psychiatric defence was out of the question.

  Vizzard met his client in a small, airless cubicle in which a dividing window separated the two lawyers from their client, so communication was laboured and tiring. Vizzard had been in these cramped conditions at Long Bay on numerous occasions, and it never ceased to amaze him how relieved his clients were to see him, even in this insalubrious environment. This client, however, was different, maintaining a confrontational and haughty attitude. To Vizzard’s surprise, Bradley insisted on his innocence and gave an account of being pressured by the police to cooperate and confess. Vizzard was quite used to receiving unexpected instructions from his clients, and his general approach was to accept them and advance them in court. Such is the role of the professional advocate! In this case, however, he could not resist probing his client just a little to test his resolve to pursue this surprising defence. He asked Bradley to acknowledge that he would stand up in court to say that he had been coerced, and Bradley confirmed that he was ready, and indeed keen, to face his accusers and be cross-examined. Vizzard could see that Bradley was adamant that this was to be his defence, and so, in the best traditions of the Bar, he assured his client that he would do his best for him. As their discussions continued, and Bradley outlined his and Magda’s histories, Vizzard could not help feeling that this charming man, who had a family of his own, who claimed innocence so firmly, and who had suffered so much trauma in his life, was incapable of committing such a heinous crime as the one he was charged with.

  * * *

  Fred Vizzard’s belief in Stephen Bradley’s innocence was his default position that he adopted with all his clients who professed their innocence. This approach in a defence counsel has advantages and disadvantages. The main benefit is that the barrister can genuinely appear to the jury to hold a passionate belief in his client’s innocence, rather than merely being a paid mouthpiece. The principal detriment is that it tends to blind the barrister to the inherent weaknesses in their client’s case, and permits them to mount arguments that defy common sense and have little appeal to a jury. In the author’s experience, the best defence barristers are those who have a healthy scepticism for their clients’ assertions and focus on the need for counsel to maintain integrity and credibility in front of the jury if they are to succeed. However, many people facing trial for serious crimes prefer to have a barrister who believes them without qualification, rather than one who is more mindful of the intricate tactics required to conduct the defence case effectively.

  Stephen Bradley was quite content to be represented by Fred Vizzard. He believed that his own charm and intelligence, supported by Vizzard’s unquestioning belief in Bradley’s innocence, would ultimately win the day and convince the jury to acquit. But first, there was the Coroner’s Inquest to deal with.

  * * *

  On 5 December 1960, the Coronial Inquest opened in Court 3 of the Central Court of Petty Sessions in Liverpool Street, Sydney. The court sat all that day, and then again on 13 and 15 December. Public interest in the hearing was intense, with queues of people jostling to get into the courtroom at the beginning of each day and after each adjournment. The Coroner was assisted by a Police Prosecutor, Sergeant Don Goode. Fred Vizzard appeared for Stephen Bradley.

  This type of Coronial Inquest has a dual function. It enables the Coroner to make a formal finding in relation to the cause of death of a person, but if the Coroner finds that there is sufficient evidence to warrant a finding that a particular person was criminally responsible for a death, he can refer the case to the Attorney-General and the Clerk of the Peace,6 so that the person can be put on trial for homicide. In this situation, the Inquest hearing also functions as a substitute for committal proceedings. The purpose of committal proceedings is to ensure that there is a sufficient body of evidence to warrant the matter being sent to one of the superior courts for trial by jury. It also provides an opportunity to disclose the prosecution’s evidence to the accused person, so that they know the case against them and are able to prepare their defence for trial. Committal proceedings, as well as an Inquest, are generally not the occasion when the defence presents its case. In fact, in most instances, the defence does its utmost to conceal what its tack will be if the matter goes to trial. This was the approach taken by Vizzard during the Inquest into the death of Graeme Thorne.

  The only hint of his client’s defence that Vizzard gave during the Inquest emerged when he cross-examined Sergeants Doyle and Bateman to suggest that Bradley had made his confessions under duress. He suggested that the police had threatened to haul Magda Bradley back from England to charge her, and that they had used this as a lever to extract
a confession from Stephen Bradley. It became clear during the Inquest that Vizzard would also challenge the validity of the scientific and pathological evidence. Dr John Laing, the government forensic pathologist, gave evidence that Graeme had died from asphyxiation or a skull fracture, or both, and that the head injuries could not possibly have been caused by some movement of the boy himself inside the boot of the Customline. Dr Laing was of the view that the fracture to Graeme’s skull had been caused by considerable force from a solid, blunt object.

  Magda Bradley’s friend, Jacob Fogel, gave evidence about the picnic rug he had given her many years earlier. When shown an image of the rug in a photograph – one of those printed from the discarded negatives found by Mr Browne in the garden at Manly – Fogel admitted to Vizzard that all he could say was that it was the same colour and pattern as the one he had given his friend. Public interest was considerably heightened on 15 December when Bazil and Freda Thorne gave evidence.

  * * *

  Bazil and Freda Thorne were not permitted to come into the courtroom to listen to the proceedings before giving their evidence, so when they were finally called they were frustrated because they were determined to hear every bit of evidence that they could. They believed that their presence in Court was not only on their own behalf, but also as representatives of their darling son who had so cruelly been deprived of his life. They were there to witness justice being done for Graeme, and if that meant hearing gruesome details of his confinement in a car boot, or the brutal circumstances of his death after a blow to the head, or the disgustingly disrespectful way in which his body had been discarded, that was just something that they had to endure for his sake. They believed that only by going through this torturous process could they begin to properly grieve for their son, and only when the course of justice was completed could they finally start to repair their lives. They were keen to assist in any way they could to see that justice was done. The sight of Stephen Bradley in the depersonalised environment of the stark, wooden dock in the middle of a courtroom was easier to deal with than the identification parade, when they had been in a small room at the CIB. It was abundantly apparent that, with the exception of the defendant and his counsel – as well as the Coroner, who remained appropriately impassive – the whole courtroom was sympathetic to them.