The commonsense approach, or ‘pub test’, to identify a disputed verbal is simple: Does the unsigned confession contain any information not already known to the police and/or which could be fabricated with ease if they were so inclined? Perhaps the answer was given when, yet again, no copy of the Sydney record of interview was given to Driscoll. That was in defiance of the instructions of the commissioner of police. It was also deliberate and arrogant.
No one is above the law, but obviously Morey thought he was. He denied Driscoll his right to see his solicitor. He denied Driscoll his right to copies of the interviews. The high rank held by Mr Morey granted him no exemption from obedience to the commissioner’s instructions in that respect. Did he bend the rules in pursuance of a crusade to keep the streets ‘safe’ for ‘decent folk’? If so, that was misguided and unlawful. Police have no monopoly on virtue. In the Morey–Rogerson era both a commissioner of police in Queensland and a deputy commissioner of police in New South Wales were gaoled for dishonesty. So were a judge and a chief magistrate. Human frailty is not the exclusive preserve of the baddies.
Unknown to Driscoll, a carbon copy of the Sydney interview was put in his personal property but he did not actually receive it ‘for a long time afterwards’—three months to be exact. Having been refused bail, his property was stored at the gaol with him having no access to it. Again, was this the handiwork of Rogerson? If pressed, Rogerson could claim he had given Driscoll a copy of the record, and it was Driscoll’s fault for placing it in his belongings, which were then confiscated.
So much for the commissioner’s instructions.
Those instructions were precisely that, instructions: unambiguous and binding. A person interviewed must immediately be provided with a copy of the interview.
Driscoll remained adamant he ‘did not answer any questions’ and Detective Morey ‘manufactured every answer’.
* * *
At Driscoll’s trial in February 1975, the two unsigned records of interview were the key to the Crown case.
Appearing for Driscoll, Mr Tony Bellanto QC objected to the interviews’ admission into evidence. The court then heard, in the absence of the jury, Mr Heazlewood give his recollection of events at Sydney Airport on the night of Driscoll’s arrest and his conversation with Detective Sergeant Morey. Morey rejected Heazlewood’s version, and was backed up by O’Hagan’s notebook entry for that night. Morey denied telling Heazlewood he ‘didn’t know’ Driscoll had been arrested and denied ever blatantly refusing the young solicitor access to his client. He said he told Heazlewood he would inform Driscoll, as is Driscoll’s right, of Heazlewood’s availability and let Driscoll make the decision. Morey also added that he offered Heazlewood a lift into the city when they arrived in Melbourne, but the offer was politely declined.
The trial judge, Mr Justice RL Taylor, did not accept Mr Heazlewood’s evidence. He preferred the versions of the police who, not surprisingly, supported each other. Justice Taylor ruled Heazlewood’s evidence as inadmissible, thus the jury never saw or heard it. That was a devastating blow to the defence. By excluding Heazlewood’s evidence, Justice Taylor effectively deprived Driscoll of any real chance of an acquittal. Driscoll’s account of having been verballed was directly contradicted by the police, but without the evidence of Heazlewood, it was Driscoll’s word against three distinguished NSW Police detectives.
Each of the two unsigned records of interview were then admitted into evidence as a document. It was read aloud in open court to the jury by the judge’s associate and, as it was an exhibit, was provided to the jury when they retired to consider their verdict. The transcript of the trial evidence revealing Driscoll’s denial was never given to the jury.
The verdict of guilty was reached in just one hour, an amazingly brief retirement for a jury in a murder trial. The mandatory sentence of life imprisonment was imposed by Justice Taylor immediately. The whole procedure was over in less than a minute.
Gaol, possibly until he died, was Driscoll’s gloomy reality. There was no formula, as there is today, where subjective and objective factors are weighed, although a gangland figure convicted of a hit would not have many mitigating features available. In the 1970s release could be fifteen, twenty, twenty-five years away or never.
Still, being a bad sport, Driscoll didn’t accept the umpire’s verdict and he appealed to the Court of Criminal Appeal. Three judges to zero, the court threw out the appeal. They all agree with the trial judge that Heazlewood’s evidence was inadmissible.
It must be said the police verbal flourished at this time because of judicial inaction and, sad to say, sometimes active judicial encouragement.
There was one last, however faint, chance for Driscoll: appeal to the High Court of Australia, a court comprised of only seven judges for the whole nation. Not much hope there; the High Court hadn’t been very interested in the blight of unsigned records of interview in the past.
The High Court’s home, a palatial edifice on the shores of Lake Burley Griffin in Canberra, was three years away from opening. When Driscoll’s appeal was heard the High Court still sat at Darlinghurst in the same complex at Taylor Square where his trial had taken place. The Darlinghurst High Court room was quite small. In fact, it was the second smallest of the seven courtrooms at Taylor Square.
Representing Driscoll was Mr John Foord QC, a prominent barrister of the day who was later elevated to the District Court bench. Before the High Court, Foord now faced not the Senior Crown Prosecutor, but no lesser an opponent than the Solicitor-General for New South Wales, Mr RJ Marr QC. The Solicitor-General is second only to the state’s Attorney-General, the highest law office.
Marr’s junior counsel was Crown Prosecutor John Hogan, who later became the first holder of the new office of Solicitor for Public Prosecutions, the Crown law prosecuting authority. Hogan was subsequently appointed a Master of the Supreme Court. That archaic office is today more realistically called Associate Judge of the Supreme Court.
The eminence of both of these counsel indicates the importance attached to the case by the Crown law authorities.
The five-judge High Court bench was presided over by Sir Garfield Barwick. Also on the bench were two future Chiefs Justice, Sir Harry Gibbs and Sir Anthony Mason. They were joined by Justices Jacobs and Murphy. Sir Kenneth Jacobs had served eight distinguished years on the New South Wales Court of Appeal before his elevation to the High Court. To describe any High Court bench as strong is tautology, but it is difficult to imagine a more learned and distinguished assembly. Justice Murphy, like Sir Garfield, was a former Attorney-General for the Commonwealth.
Driscoll was not present. Applicants to the High Court are never brought in from the gaol on the day.
Mr John Foord QC argued the first trial had miscarried because the alleged unsigned police record of interview had been allowed into evidence and as a document. There was the further, much stronger, ground of appeal: that Driscoll’s solicitor, Mr Colin Heazlewood, had been wrongly excluded from the police interrogation at Melbourne’s Russell Street police headquarters on the night of Driscoll’s arrest. More importantly, indeed critically, Heazlewood had been prevented from revealing this to the jury.
Foord also revived an important legal question relating to the admissibility as documents of unsigned records of interview. Many other lawyers had tried and failed over the years to get the High Court to reconsider cases which relied on unsigned records of interview. It seemed like a long shot, but Foord argued that including a record of interview as an exhibit when there is doubt cast over the document being genuine gives the document, in the eyes of the jury, legitimacy. In short, it prejudices the accused.
The High Court considered the arguments and Foord’s determination paid off. The High Court agreed with Foord and handed down a landmark decision, reversing the usual practice of admitting unsigned records of interview as documents. Instead, the court decided, disputed interviews were allowed to be given orally and their evaluation and weight still remain
ed a matter for the jury. It was a small but important step, which seemed to curtail somewhat the police verbal.
The High Court decided Colin Heazlewood’s evidence about the meeting with the detectives at the airport should have been heard by the jury. The police had prevented Heazlewood from being present when Jimmy Driscoll was interviewed. The High Court did not make any judgement about whether or not Heazlewood was telling the truth, only that his evidence should have been heard during Driscoll’s trial.
The High Court then quashed Driscoll’s original conviction and sentence and ordered a retrial be held. For the first time the tide had turned, but the struggle was far from over. Suddenly the police were on more shaky ground. The exclusion of Heazlewood from the police interview with Driscoll in Melbourne would become the focus of the new trial. The unsigned statement now had an unpleasant aroma.
Whenever the famous Driscoll case is cited in court or in parliament, the official, technical reference is always ‘[1977] 137 Commonwealth Law Reports page 517’.
* * *
The venue for the retrial, which began on 21 November 1977, was again the impressive main courtroom No. 5 at Darlinghurst, the Central Criminal Court, taking its name from the equivalent court in London at the Old Bailey. Its location at Taylor Square is off Oxford Street, a busy intersection on the edge of the city, walking distance to the Sydney Cricket Ground. The court complex was built for colonial New South Wales in the nineteenth century and features imposing sandstone columns on either side of the public entrance, dominated by a massive iron door.
Under the court are the holding cells, where the accused wait to be called. The cells are cold, dark, damp and grim. The accused’s entry to the courtroom is intimidating. Access is by a trapdoor in the floor of the dock, which is duly opened and closed by a uniformed constable as the accused enters and leaves the court, and down narrow, dimly lit steps.
The accused is always brought into the courtroom after the judge has been seated on the bench and is removed before the judge stands to retire to their chambers. This is done to avoid what is deemed to be the unseemly spectacle of the judge, in royal scarlet robes, bowing in the direction of the prisoner while returning the courtesy of those at the bar table bowing to the Royal coat of arms above the judge’s head. So, there you have it, it is not the judge we at the bar table are showing respect for when we bow, but the Royal Arms, which embodies the authority of the state the judge represents.
If acquitted, the accused person leaves the dock by the gate, which is opened for them by formal order of the judge. The accused is then free to walk outside, embrace their family and pass between the tall sandstone pillars into the sunshine and to freedom.
Driscoll’s defence team was the same as it was for his first trial, with one addition—me. David Baker was instructing solicitor and I was briefed as Tony Bellanto’s junior counsel. Bellanto’s passion and commitment remained priceless assets. Driscoll had long since run out of money, but Baker and Bellanto had accepted the retrial on legal aid, with its excruciatingly modest rates.
Tony Bellanto QC was the most powerful jury advocate of his day. Resonant voice rising and falling with real emotion and emphasis was his trademark. So powerful and persuasive was Bellanto, once, in his closing address on behalf of a lady charged with the murder of her husband, he implored the jury, with tears coursing down his cheeks, ‘Unlock the door of the dock and send her home to her little children waiting to receive her.’
As if mesmerised, a young constable guarding the dock commenced to do just that.
The presiding judge, Justice ‘Jock’ McClemens, sternly snapped the court back to reality with the admonition, ‘Nobody move! Don’t unlock anything.’
Later that evening the jury, by its verdict, did indeed send her home.
Leading the prosecution in Driscoll’s retrial was, again, Richard William ‘Bill’ Job QC, the second most senior prosecutor for all of New South Wales. He was also widely respected, because few acquittals occurred when he held the prosecution brief in a murder trial. Job was obviously destined for judicial office himself and would eventually become a judge.
Presiding over the court room was Justice David Yeldham. At the time he was a newly appointed judge and thus his form was unknown. He was fair, a bit impatient, but decisive. That is not a code for saying he was pro defence. Quite the contrary: Justice Yeldham was the epitome of impartiality and, as his reputation grew, was much admired by both sides.
* * *
Each morning of the second trial, as it had during the first, Driscoll’s day at court began very early at Long Bay Gaol at Malabar, southeast of Sydney, where he was held on remand during the trial. The drab prison greens were exchanged for his own clothes. Driscoll wore the same suit every day, a conservative dark one, and his family brought him a clean white shirt which he was allowed to change some days.
When transported to court he was handcuffed to other prisoners in a large, windowless prison van that drove, almost in a straight line, along Anzac Parade. The twelve-kilometre journey took just under thirty minutes. The van then backed into a laneway from Darlinghurst Road, and Driscoll and others were led to the underground holding cells.
The retrial was to be just that, a rerun of the evidence, but with two important differences: a new judge and the evidence of Colin Heazlewood. This time the admission of Heazlewood’s evidence wouldn’t be up to the whim of the trial judge—the High Court had said the jury must hear it. Not that they must believe it, but they must hear it and then decide whether to believe Heazlewood or not. Driscoll had a new player in his team. Not only at the bar table, but in the witness list.
During the seventies and, indeed, for at least a decade after, accused persons were allowed to give what is known as a dock statement. This means they can tell their version of events to profess their innocence from the dock, without any cross-examination and without taking an oath. The unsworn dock statement was introduced into courts during the eighteenth century in England, to allow people who couldn’t afford lawyers to represent themselves in court. Of course, it pre-dated legal aid, but the right of an accused to make a statement direct to the jury from the dock was abolished in the name of law reform in 1995.
Driscoll, however, did not exercise his right to make an unsworn statement to the jury from the dock. If he had done so, no one could have asked him a single question or commented on his decision not to submit to cross-examination. That option would have relieved him of being fiercely cross-examined by Bill Job QC. Instead, Driscoll unhesitatingly entered the witness box. He had given evidence at the first trial and was again an impressive witness, perhaps because he was telling the truth.
Although Driscoll was questioned for several hours, he remained calm and articulate. Tony Bellanto, David Baker and—for what it was worth—I all favoured Driscoll making a statement from the dock to the jury. He was coherent and had no real accent. In his own way he could have told his story and with one big plus: the wide scope of an unsworn statement. There have been numerous acquittals following an accused delivering, in a convincing manner, their dock statement.
Driscoll knew what was in store for him but, as was his right, insisted on going into the witness box again. Other than a handful of detectives, I have never met a person, myself included, who did not find giving evidence a daunting experience. I have only ever given evidence twice from the witness box and hated it. Driscoll’s preference for the witness box, which in No. 5 Court is very close to the judge and closer still to the foreman of the jury, may well have been inspired by a confidence consistent with innocence.
Driscoll’s life had, to put it delicately, some embarrassing features and he had to admit to previous lies under cross-examination during the first trial. Those lies were in relation to a letter he had posted to friends in England, who then readdressed the letter and posted it to Sydney. This elaborate plan had taken place soon after Driscoll went on the run. It was done to try to convince police he had hightailed it back to old Bligh
ty. Such an act is always highly damaging and particularly so where the witness is the accused.
When it came to what was said at that airport meeting, it was very much one person’s word over another. Thankfully, due to the skill of Tony Bellanto, we were able to contrast the cross-examination of Colin Heazlewood with the cross-examination of Detective Inspector Morey, as he had recently become. The jury heard Tony Bellanto directly, and with feeling, accuse Morey of lying about what was said. Whereas, the very senior Crown Prosecutor had not done likewise with Colin Heazlewood—that he was lying was never put directly or indirectly to Heazlewood.
This was no oversight by Bill Job QC. It was true blue, legal ethics. Job’s reputation was as one of the top and best of prosecutors, hard and uncompromising, but impeccably honourable. He was conducting the Crown case with vigour and outstanding ability. Heazlewood had no motive to lie. Moreover, this was not the first time Heazlewood had undergone cross-examination on that confrontation. His first grilling was at the previous trial, but in the absence of the jury, when that judge preferred the police version. Now, Heazlewood’s cross-examination was more detailed and more vigorous. Significantly, it was never suggested to Heazlewood he was mistaken either.
In a bid to counter this potentially decisive setback, the Crown too added another player: Mrs Helen O’Hagan, Detective O’Hagan’s wife. She’d accompanied her husband to the airport to see him off.
Unveiling Mrs O’Hagan as a witness for the first time at the retrial was also indicative of developing concern, indeed nervousness, in the prosecution. It was belated recognition of the importance of the Morey–Heazlewood conversation at the airport. With Heazlewood’s evidence at the first trial excluded there had been no need to call Mrs O’Hagan as a witness. Now, however, her assistance was vital to bolster the Morey version. For Mr Job, failure to call her and not explain her absence would have drawn justifiable criticism from the defence, inferring Mrs O’Hagan could not support her husband’s account.
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