Justice Denied

by John Suter Linton

  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 resul
t. 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 e
arlier: ‘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?