Justice Denied

by John Suter Linton

  As Justice Harrison so succinctly and eloquently put it, there is no way of knowing what Ms Beckett’s life would have been had she not been charged. That applies to all those unfortunates to whom justice has been denied, with Colin Campbell Ross the ultimate, tragic victim.

  It was the famous jurist Sir William Blackstone who wrote in the eighteenth century: ‘It is better that ten guilty escape than one innocent suffer.’ It must be remembered that this presumption in favour of the innocent is never absolute.

  CHAPTER

  1

  Jimmy Driscoll—The Death of the Police Verbal

  In the early 1970s a gang known as the Toecutters became active in the Sydney underworld, torturing fellow criminals for information as to the whereabouts of stolen loot. The method was simple and effective: amputate fingers and then toes to force disclosure of the treasure’s hiding place; when the information is revealed, stop amputating. The loss of blood usually resulted in death. The bodies, it is believed, were then weighted and taken out past Sydney Heads and fed to the sharks, never to be seen again. A few, however, did wash up along Sydney’s shoreline and panic set in. A lot of gangsters on both sides decided it was better to hide than risk becoming a victim.

  One alleged member of the Toecutters was John Patrick ‘Jake’ Maloney. He was forty-four years old, and was holed up in a safe house in Revesby, a southwestern suburb of Sydney on 24 November 1972. Shortly before midnight, Jake Maloney was alone in the house, his lover having just left. While the house was securely locked, a window was partially open. He went to the bathroom before going to bed and was shot dead. Death was instantaneous from two bullet wounds to the back of his head. The murder weapon was a .22 machine gun pistol. There was no sign of a struggle and the murder had all the hallmarks of the work of a professional hitman.

  Two of New South Wales’ top detectives, Detective Sergeant Noel Charles Morey and Detective Roger Caleb Rogerson, were assigned to investigate the Jake Maloney murder and related crimes. The Morey–Rogerson pairing was not by chance. They had worked together for over six years. In the seventies, that duo bestrode the Sydney law enforcement world like a colossus. Modesty and diffidence were not hallmarks of their style, but efficiency and success were.

  Roger Rogerson had not yet reached forty, but he was so admired there was talk of him as a possible future commissioner of police. In his heyday, Rogerson was the perfect, unshakeable witness. The judges liked him and his style and it showed. His image was that of a dependable pillar of truth, duty and authority. Accordingly, he was able to stretch the rules to the limit. Not yet fifty, Morey was destined to rise to the very top as chief superintendent in charge of the CIB.

  Initially, suspicion for Maloney’s death fell on two men: Linus Patrick Driscoll, known as Jimmy the Pom, or just Jimmy to his friends, and Richard Kaczmarek. There was no suggestion the two men were acting together. In fact, they were enemies. But both, police believed, had their reasons to want to see Jake Maloney dead.

  On the morning of 19 October 1972, Jimmy Driscoll had found a bomb made with ten sticks of gelignite fitted with a remote-controlled detonator hidden under the back seat of his car at his Oatley residence in the southwest of Sydney, just over ten kilometres from Revesby as the crow flies. Driscoll immediately called the police, and Sergeant Ross Nixon from the New South Wales Police ballistic unit and an army disposal expert, Major Morrison, attended the scene. Detective Sergeant Brazel and Detective Senior Constable McMillan from the consorting squad also responded. Brazel and McMillan alleged Driscoll told them, ‘I’ll handle it in my own way,’ and made mention of the Maloney brothers, Jake and Billy. He had a motive to kill them, no doubt.

  A month earlier Richard Kaczmarek’s Paddington residence, in Sydney’s east, had been peppered with a fusillade of shotgun blasts, blowing out windows. Again, police believed Kaczmarek blamed Maloney for the attempt on his and his family’s lives.

  After Maloney’s murder, Morey and Rogerson pulled Kaczmarek and his brother Kazimierz—‘Kaz’—in for questioning. After some initial unwillingness, they sided with police and claimed that about a week before Maloney’s death, Driscoll had said he intended to shoot Maloney.

  He may have been a polite and well-mannered expat Englishman, but Driscoll had a scary side. And there was more, albeit circumstantial, evidence against him. Driscoll owned two machine pistols that fired bursts of .22 bullets and he had a reputation for brandishing the modified pistols at people he didn’t like. He called his little pistol machine guns the Silent Ones because each was fitted with a silencer and could send out a lethal spray of bullets without making much noise. His associates later claimed they had seen Driscoll test fire the Silent Ones in the backyard; while neighbours hosed their gardens, ‘Jimmy hosed his plants with lead’. No need for weed killer.

  Less than a month after the murder, by sheer chance, an abalone diver found the murder weapon and the silencer. The machine pistol was wedged in a rock crevice under the sea off Sydney’s iconic Bondi Beach. Bondi, it just happened, was where Driscoll had been working as an assistant manager at the Astra Hotel around the time of Maloney’s murder.

  If Driscoll did kill Maloney, the only question was why? Driscoll and Maloney were friends. What would have caused them to fall out and for Driscoll to believe Maloney had planted a bomb in his car? And then execute Maloney a month later? Friendships in the underworld are tenuous at the best of times and can change in a minute over the slightest disagreement. Police learned Driscoll’s soon-to-be sister-in-law, Gaye Dauroff, was having an affair with Maloney. Other than the killer(s), Gaye was the last person to see Maloney alive. Had the affair been known to Driscoll, police ascertained, it would not have endeared Maloney to him and, therefore, given Driscoll yet another motive.

  In reality, Driscoll couldn’t have cared less about the affair.

  After Maloney’s death, Driscoll immediately went into hiding. This, Morey and Rogerson believed, was an admission of guilt. To them, innocent men don’t hide from the police.

  The police certainly didn’t entertain the idea Driscoll may have fled out of fear. The bombing attempt on his car had proved not only he but also his family were in danger. And if he hadn’t killed his friend, was Driscoll fearing he’d be next, or that an attempt would be made to frame him for the murder? Another reason to run. Against that, if Maloney’s death was Driscoll’s version of vengeance upon the would-be bomber, then the source of danger had been extinguished by Maloney’s death, and there would not have been any need for him to run away.

  The Maloney murder was a murky underworld case with more than one suspect but the police seemed determined to get Jimmy Driscoll. Morey and Rogerson had no witnesses and the case was built around one criminal’s word against another, a possible motive or two, and a bit of suspicion, but no proof. None at all.

  But Morey and Rogerson were patient men; they knew their day would come and it did.

  Using an alias, Jimmy Driscoll lived in Melbourne for a little over eighteen months until an informer alerted police. At 6.45 pm on 5 July 1974, a cold, wintery Friday night, Driscoll was arrested by Victorian police without incident in the heart of the Melbourne CBD. The police then notified Sydney.

  A search was conducted of Driscoll’s residence and certain property seized, including one .22 machine pistol. As it was bagged, Driscoll pleaded with the Victorian police officer, Detective Senior Sergeant Lalor, to take particular care and note of the gun, and Lalor did. Driscoll didn’t trust NSW Police not to interfere with it and try to link it to Maloney’s murder. At this time, perhaps, Driscoll was unaware of the discovery of a .22 machine pistol at Bondi, which police had established was the murder weapon.

  Driscoll was taken to the Russell Street police headquarters.

  When notified of Driscoll’s arrest, Detective Sergeant Morey dropped everything and prepared to fly to Melbourne. He had been waiting a long time to interview Driscoll and, presumably, held a faint hope he would make some admissions and they cou
ld extradite him to New South Wales.

  On that same night, solicitor Colin Heazlewood was halfway through dinner when he received an urgent phone call. It was from his senior partner, David Baker, with the news that Jimmy Driscoll had been arrested and telling him to ‘get to the airport and get to Melbourne fast’.

  The firm Baker and Heazlewood was a two-man practice operating from a shopfront in Liverpool Street opposite Central Court. Baker, when he rang Heazlewood, was too far away at his Kurrajong property at the foot of the Blue Mountains. David Baker was a rotund character. His love of prime beef steaks and vintage red wine, not necessarily in that order, was legendary. His burliness masked a shrewd criminal law brain and a fierce dedication to his clients’ interests. Money was never Baker’s motivation—he was an idealist. Justice for Jim Driscoll remained his crusade long after the money ran out.

  Heazlewood was the opposite of Baker in personality. He was an urbane, rugby-playing young man who was a foil to the ebullient Baker. He was later called to the Bar and built a highly successful common law practice.

  On arrival at the Ansett Airlines domestic terminal, Heazlewood recognised the famous Detective Sergeant Morey immediately. The reverse was almost certainly not the case. With the ink barely dry on his practising certificate, Heazlewood solved that problem by plucking up the courage to introduce himself. Morey was with Detective John O’Hagan. Detective Roger Rogerson had not been able to make it. Had he been there, Rogerson, a renowned tactician, may have counselled caution to his boss. As it was, Morey’s vanity probably prevented him from acknowledging Heazlewood’s unwelcome arrival on the scene as important.

  ‘I suppose you are going to Melbourne to speak to Driscoll?’ Heazlewood nervously asked.

  Morey replied, ‘I am going to Melbourne to make inquiries about him.’

  ‘He was arrested today.’

  Sergeant Morey acted surprised. ‘Was he? I didn’t know that.’

  That was untrue. Morey did know. Sergeant Morey’s professed ignorance of Driscoll’s arrest was a downright lie designed to mislead Heazlewood.

  Colin Heazlewood was very much the new kid on the block. His experience, if any, of this tense sort of situation would have been a tiny fraction of Mr Morey’s, who obviously underestimated Heazlewood’s resolve. Detective Sergeant Morey was a strong character, the embodiment of power and authority. No one in his presence dared doubt it. He was not one to be trifled with. Heazlewood, however, was obliged to put duty before self-interest and summoned the courage not to confront Mr Morey but to challenge him.

  ‘If he is to be interviewed I would like to be present.’

  ‘No way,’ Sergeant Morey quickly responded.

  Heazlewood refused to back down. ‘I am asking you formally if I can be present when he is interviewed?’

  ‘No.’ Morey was adamant.

  ‘I suppose I will see you at Russell Street, but hopefully not tonight … in the morning?’

  ‘No, not tonight,’ Morey agreed. There was no ambiguity in that reply.

  Anyone would have accepted Morey meant he would hold off conducting any interview until a reasonable time the next day and, if Driscoll so wanted, Heazlewood would be invited to sit in. It is the client’s right, not the solicitor’s, to request legal representation at a police interview.

  Before boarding the plane, Morey decided to dictate his version of the brief exchange with Heazlewood for O’Hagan to record in his notebook. At the time, the police notebook was considered sacrosanct in giving accurate accounts of events. Police were taught to write down all conversations with the date and time and, if possible, to have all parties sign the book before ruling it off. The credibility of the information in the notebook comes from the recording of events prior and after, showing them in true chronological order. Recording a conversation at the time it is happening, or very soon after, gives credibility to the accuracy of that recording. If the account is false then the credibility is obtained by deception.

  Perhaps the usually astute Morey had realised the importance of that meeting at the time. Heazlewood’s swift arrival at the airport had seriously compromised Morey’s plans and was a major setback to the police cause. A year’s work was in jeopardy. Morey knew permitting Heazlewood to be present at any interview would allow Driscoll to be reminded of his right to remain silent, not that Driscoll wouldn’t have known it for himself. Time was the enemy and that was what forced Morey’s hand. Morey did, at least, keep his word he wouldn’t interview Driscoll ‘tonight’—Friday, 5 July.

  * * *

  The new day, 6 July 1974, was all of ten minutes old when Morey and O’Hagan began their typed record of interview with Driscoll. The next few hours would prove decisive. Morey had consciously excluded Heazlewood from the process and concealed the solicitor’s presence and availability in Melbourne from Driscoll. Denying the young solicitor any access to his client was a grave step. Not only was it an unfair one, it was also against the law.

  The five-page script would take about two hours to produce. According to Driscoll, who was in the room, Morey dictated it to O’Hagan from start to finish, Morey composing both the questions and the answers, which were attributed to Driscoll. The end result was a quite tentative narrative without a direct admission of guilt. What Morey had created was like an amateur stage play with Detective Sergeant Morey as the protagonist and Driscoll a reluctant costar.

  It starts with Driscoll refusing any legal representation and, instead, putting his trust in Morey. It ends with Driscoll thanking Morey for his fairness. A neutral onlooker would have given longer odds of Driscoll putting his life in the hands of Morey over his solicitor than of the Yarra River freezing over, even though it was winter.

  The claim that police will be untruthful and break the law to secure the conviction of guilty criminals is not a heresy promoted by civil libertarian extremists. Bending the rules was widely recognised at the time and sought to be justified on the basis it prevented serious offenders escaping punishment for serious crimes. The justification is always that the police know the criminal is guilty but lack enough real evidence to put him away. That artifice does not attract community condemnation—far from it. It is recognised by many citizens as ‘old-fashioned policing’ which protects the community from evil. But countenancing the gaoling of someone who the police genuinely believe to be guilty by illegal means is simply not on in a civilised society. If it were, we would have trial by jury substituted with trial by police.

  Driscoll feared becoming another victim of precisely that philosophy. Justice had been denied at Sydney Airport that night from the moment Mr Morey denied knowledge of Driscoll’s arrest. It was a lie and it proved two things: a determination to get Driscoll at any cost and a preparedness to lie to do it.

  Driscoll, however, kept his nerve. There was one vital part of Morey’s game which Driscoll still controlled and refused to play: he would not sign the fabricated confession. Driscoll was adamant—he had made no contribution to that document.

  After dawn on the morning of 6 July, both Roger Rogerson and David Baker arrived in Melbourne. Driscoll’s lawyers were well and truly on the job, but they didn’t know anything about the record of interview. They didn’t know of its existence because Driscoll had not been given a copy. Nor was it disclosed to the Victorian magistrate during the extradition hearing.

  Back in Sydney, with both Baker and Heazlewood available, the police claimed Driscoll elected to go it alone and make another damaging record of interview. Again, Driscoll was not given a copy. And again, he concluded by thanking Mr Morey for his fairness. A less grateful prisoner might have described it more as arrogance than fairness.

  There must be something about the witching hour. Jake Maloney’s murder occurred around midnight. The five-page Melbourne interview was created just after midnight. The Sydney interview allegedly commenced at 11.30 pm.

  In the Sydney record of interview, Roger Rogerson resumed his role of typist for Detective Sergeant Morey. Driscoll’s
style of expression was completely different in the brief second interview: he was portrayed as far more remorseful and resigned to his fate. And this time the record was a full confession with an acknowledgement by Driscoll that the evidence was ‘strong’ against him.

  Morey says: ‘I said “I want you clearly to understand that what I have shown you and what you are saying is being fully recorded on the typewriter, and it will be produced in evidence. I want you to understand this, that you do not have to say anything, as anything you do say will be given in evidence.”

  ‘[Driscoll] said, “Yes, Mr Morey, but I expect to get the full sentence for killing Jake. I didn’t expect that you would believe everything I said because Jake was a dreadful man who turned against his brother. As a result of that he became opposed to me. The evidence I know is most strong, particularly in regard to what you told me about the Kaczmareks, but I can only say this, that I do not expect them to stand up and relate their evidence when I am present in court, because they know that if they do they are finished for all time.”’

  Concluding the Sydney interview, Morey gave this evidence: ‘I said, “Having shown you these exhibits have you anything to say.” He said, “Not really, Mr Morey, thank you very much for your fairness. I would like you to give me the opportunity to thank you for your fairness at court today.”’

  Apparently Mr Morey forgot to take him up on the offer when Driscoll appeared at a preliminary hearing. Driscoll thanking Morey certainly never happened. If it had, a public expression of gratitude in open court would have surely put to rest forever the fabrication allegation and been a prelude to a plea of guilty.

  The Melbourne document was very incriminating but subtly so—there was no direct admission of guilt. Was the late arrival on the scene next day of Roger Rogerson the event that prompted the second Sydney record of interview to make certain a confession? Did the Sydney interview bear the professional imprint of Roger Rogerson with his legendary eye for detail? We will never know.