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.
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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 198
3.
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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 two-dimensional 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 Me
lham, 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.
Justice Denied Page 10
