Justice Denied

by John Suter Linton

  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 fro
m 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.