* * *
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 non-inflammatory 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 post-mortem 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 Attorney-General’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.
Justice Denied Page 22
