Justice Denied

by John Suter Linton

  First and foremost, Helen O’Hagan was a policeman’s wife. She was certainly not in the camp of the accused, but became another strand in the fabric of the garment investing Heazlewood with decisive credibility. She set about doing what some loyal wives would do. She employed the tried and not always true police technique of ‘refreshing her memory’. After all, this was many years after the event, and there would have been no reason for Mrs O’Hagan to have taken any particular notice of the conversation; it was police business. She didn’t say anything to contradict Morey’s version, in fact she admitted to using her husband’s notebook as a source to refresh her memory, but by her presence she corroborated the point a conversation had actually taken place and Heazlewood had requested to see Driscoll and to be present during the interview.

  Driscoll had another unexpected bonus on his side and, again, it came from the prosecution list of witnesses. When Sergeant Nixon was called he, perhaps unintentionally but certainly unapologetically, torpedoed one of the crude verbals given to Driscoll by the Consorting Squad police way back when the car bomb was found, before the Jake Maloney murder. It was Driscoll’s alleged suggestion that Maloney and his brother were responsible for the bomb, which was claimed by police to be one of his motives in murdering Jake Maloney. Ross Nixon was then a humble sergeant of police in the ballistics section. In retrospect, perhaps, he was not all that humble as he rose to the rank of assistant commissioner.

  According to the Consorting Squad detectives, Driscoll had rebuffed an offer of police assistance after the car bomb was found, with an ominous assurance he would handle the threat in his own way. Of course, Driscoll denied saying that and, fortunately, Sergeant Nixon directly contradicted the blatant verbal of the Consorting Squad police. He told the court his attendance was a direct result of Driscoll’s own call for police assistance.

  Sergeant Nixon also introduced the fact Driscoll had sought advice from the legendary Des ‘The Ibis’ Andersen, later to become a QC. For the record, at this time Andersen wasn’t yet known as ‘The Ibis’. The nickname would come years later when journalist Evan Whitton wrote an article described him as being ‘like an ibis rising from a swamp’ when addressing the Street Royal Commission in 1983. It caught on.

  Being a barrister, Des Andersen could not deal directly with the client. So what did he do? He referred Driscoll to, of all people, his former articled law clerk, Colin Heazlewood, a brand new solicitor. Importantly, it is Sergeant Nixon and not Driscoll who introduces ‘The Ibis’ Andersen into the equation. In fact, Driscoll never mentions him at all.

  Was it just a coincidence that Nixon would mention Andersen’s name? Of course not. The value of mentioning Andersen, given Heazlewood was once his clerk, is that it makes all the more ridiculous Driscoll’s alleged rejection of Heazlewood’s offer to help in Melbourne. Nixon had enhanced Driscoll’s credibility.

  * * *

  Tony Bellanto had not been well when the trial began. As it progressed, his health did not improve. He was gamely battling on, despite illness, when the second trial nearly came to an abrupt end.

  For someone who was intended to be a purely formal witness, Sergeant Nixon’s name bobbed up again, but in controversial circumstances. After his evidence, it emerged a juror knew him personally and sent the judge a note admitting so. It was the honourable thing to do and the judge called both silks into his private chambers and showed them the note. Both of us juniors and the respective solicitors waited outside.

  Sergeant Ross Nixon, the ballistics expert, had a purely neutral role in the trial. Both sides accepted his integrity and expertise. The note was no problem for the Crown but it dismayed us. Police friends and admirers were the last people we wanted on the jury. Not to put too fine a point on it, our whole case was that a number of police had conspired together to commit perjury against our client.

  Very generously the judge gave us overnight to think about it. As Bellanto was not at all well, the break was doubly welcome.

  We conferred, talking through the bars to Driscoll in the dingy, underground cells; there were no legal conference facilities. Bellanto asked Driscoll whether or not he wanted us to apply for the juror to be excused and proceed with a jury of eleven? Or ask for the whole jury to be discharged and start all over again?

  The latter was my preference, and I said so because this trial involved a massive attack on the police. ‘Why run an unnecessary risk?’ was my reasoning. If the judge refused the application that would provide us with an appeal point, just in case.

  David Baker disagreed with me and Bellanto wavered.

  Driscoll, in whom lay the ultimate decision whether to seek a discharge of the jury, had a dilemma. He was observing, at first hand, a trial presided over by a fair judge. Justice Yeldham was, at times, impatient, but he was scrupulously down the middle. It was late in November 1977. If the jury were discharged the retrial would not take place until the legal New Year. The advantage to us was Tony Bellanto would hopefully be fit and well again and back to his truculent best. The disadvantage was the judicial roster had already been drawn up for the following year. Suffice to say, the red judge—‘red’ from the royal scarlet robes worn during criminal trials in the Supreme Court—allocated to Darlinghurst in February was not Justice Yeldham.

  Driscoll elected to press on. He had a fair judge and he felt the juror must be a fair and honest man to have come forward as he did. We all hoped his optimism would be rewarded.

  Driscoll resumed his place in the witness box. With regards to Richard and Kaz Kaczmarek, Driscoll adamantly denied telling them, or anyone, he wanted to kill Maloney. He swore at his trial, in fact, that he had sold the murder weapon to Richard Kaczmarek for $150—a large amount in those days—the day before Maloney was shot. There was no doubt Kaczmarek had the motive and the means to commit the murder. After all, Jake Maloney was Driscoll’s friend.

  What of the discovery of the murder weapon, the .22 machine pistol? It was found in the ocean, among rocks just off Bondi Beach, where Driscoll had worked. The diver who found it had told police in a statement it appeared to him ‘it was meant to be found’—the location was and continues to be a popular site for professional and recreational divers. A slightly stronger throw may have seen the gun disappear into deeper waters and lost forever.

  * * *

  The trial was almost over when Tony Bellanto reluctantly decided that he was not well enough to make the final address and asked me to do so. Justice Yeldham was very sympathetic. He had given us a whole day off to prepare the address. Perhaps he felt sorry for a murder trial accused losing the services of his chosen silk on the most important day of his life. Tony Bellanto was irreplaceable.

  On that last day, against his doctor’s advice, Bellanto left his sick bed to join me at the bar table.

  Before court, in the robing room, Bellanto and I recalled another murder trial in which I had been his junior. Bellanto was interrogating a policeman in the box when he was interrupted by the judge. His Honour took exception to Bellanto’s suggestion the officer had verballed his client: ‘Mr Bellanto, I do hope you realise you are making the most serious charge against this officer?’

  Bellanto’s swift rejoinder was, ‘But not half as serious as the charge he has levelled against my client, Your Honour.’

  That judicial discourse revealed the forbidden territory where, to some judges, the mere suggestion any police officer would be untruthful or lie was absurd and resented.

  Recalling this anecdote was Bellanto’s and Baker’s way of emphasising to me the enormity and gravity of what Driscoll was alleging against the police and my need to face it and not shrink from forcefully articulating it. There was, of course, an unspoken concern about my suitability for the role. Putting it bluntly, was I up to it? Was I as truly independent as a private barrister would be in such a big case?

  It was no secret a Public Defender receives not a fee but an annual salary, which is paid by the government of the day. Some clients are fearful this consci
ously or unconsciously inhibits a Public Defender from attacking the police where it is their clear duty to do so, as was the case here. But there is no conflict of interest. The Public Defender system in New South Wales is unique worldwide. A Public Defender is as independent as a barrister in private practice both in name and in reality. Counsel is never a ‘mouthpiece’, but has a clear duty to put their client’s case. A barrister like me, who was a Public Defender, has all of the privileges but also all of the responsibilities of a barrister in private practice. The level of his or her ability is for others to judge.

  Driscoll’s life now depended upon my performance in an era when the police force enjoyed a largely favourable image.

  Pre-court cappuccinos in cardboard cups with plastic lids were obtained from the coffee shop across the road in Oxford Street. I must concede it wasn’t unknown at Darlinghurst for counsel on both sides of the record to fortify themselves occasionally with a stronger libation, usually obtainable in flasks from an establishment, I am told, next door but one to the coffee shop. Though I am sure it didn’t happen that morning.

  We discussed what lay ahead. If the jury had made up its mind to acquit then it was all over. I must be careful not to change their mind. If they had not, and were divided or tentatively leaning towards conviction, then the challenge was to change their minds by persuasion. At the end of the day, the jury’s decision as to where the truth lay may have been a difficult one, but it was not at all complex. It lay in the answers to these fundamental questions.

  Why was Heazlewood going to Melbourne that night? The answer is obvious. It was to confer with, advise and try—vainly, as it turned out—to protect Driscoll’s legal rights.

  Driscoll also topped the agenda as the reason for Detective Sergeant Morey’s trip to Melbourne. Why then did Detective Sergeant Morey lie to Colin Heazlewood about his motive and deny even knowing Driscoll had been arrested?

  Next question: If the records of interview were, as claimed, genuine documents, why weren’t they signed by Driscoll? That was always the powerful argument to which the Crown had no answer. The confession was unsigned. Without the confession there was no case against Driscoll. That is why it was invented, and that is why he refused to sign it.

  Next, if he was so resolute in refusing to sign, why was Driscoll so pathetically weak in admitting to the murder in the records of interview? Surely it must have occurred to an elite detective such as Mr Morey to satisfy everyone’s curiosity and ask Driscoll why he would not sign? No one ever did.

  Next, and extremely importantly, why did Detective Sergeant Morey flagrantly disobey the official instructions of the commissioner of police and fail to provide Driscoll with a copy of his ‘confessions’? Those instructions existed to protect honest police from false allegations and innocent suspects from the same. The simple answer was because they were not genuine documents and that is why their very existence was concealed.

  Finally, was there even a remote chance that Linus Patrick ‘Jimmy the Pom’ Driscoll was ignorant of the right, which every suspect has, to remain silent? Answer: Absolutely not. Even if he were so ignorant, why then choose to waive it when told, as the law required, he did not have to say a word? Was it to simplify the police task of fitting him up with a life sentence for a murder which he did not commit? Of course not.

  Justice, not mercy, compelled a verdict of not guilty in this case.

  The atmosphere in the court, where an underworld character had taken on the Force’s finest, was certainly a tense one. That was the massive elephant in the room blocking an acquittal: Jimmy Driscoll’s profile. He was not the man next door. The man next door does not own machine gun pistols nor is he enmeshed in a violent underworld war. The task of persuading a jury to take seriously an allegation by such a man against top police is always a formidable one and none of us underestimated the task. Time and again the jury was enjoined by me to totally banish prejudice from their deliberations. True, that was asking a great deal of them. Linus Patrick Driscoll was far from being a person without blemish, but on any view, he was certainly not stupid.

  In my address, my consuming objective was to be respectful and hopefully persuasive in communicating with that impassive twelve-person jury. If one’s personality is abrasive, the impact of the address will be diminished. Likewise with a superior or patronising presentation. The essence is in communication.

  Driscoll’s defence, I told the jury, ‘was a simple one’. He did not kill Jake Maloney. In fact, the two of them were mates. The centrepiece of his defence was he had made no confession. Not in Melbourne. Not in Sydney. Not anywhere. The unsigned interviews were a work of police fiction with Detective Inspector Noel Morey their author.

  No, Driscoll wasn’t threatened, bashed or tricked or induced. He was no timid wallflower. None of those threatening avenues would have worked on him anyway.

  The key which unlocked the case for the jury was a powerful one. It was the fact that, no matter how determined the police, and Mr Morey in particular, were to get him, Driscoll kept his nerve and refused to sign the bogus confession.

  Verballing a criminal can never be justified. It is no answer to claim the police motivation was well meaning, designed to punish the wicked when there was a lack of enough evidence. A lie is always a lie. Perjury is always perjury.

  Achieving what police believe to be justice by perjury is not justice. It is justice denied.

  The detection and punishment of crime is essential in any free and civilised democratic society and without dedicated and successful law enforcers there is mayhem. Police, and detectives in particular, rightly take pride in their achievements and enjoy wide community support and admiration for serving what they believe is the public interest.

  To state the obvious, the solving of murders enhances a detective’s professional reputation but the question arises, do the means of achieving law and order sometimes fall short of acceptability? Does the end justify the means? If the police place themselves above the law and lie to achieve what they believe to be justice, then the fountain of justice itself is poisoned.

  I closed, reminding the jury

  Driscoll is not on trial for having a dubious lifestyle or shady mates. He is on trial for murder. The most serious of all crimes on the criminal calendar. Please do not now write off his life on this shabby, inadequate material. That would be effectively substituting trial by jury for trial by police.

  When this trial is over we, the participants, can go over the road to the pub, back to our work or simply go home. Your verdict, once given, does not directly affect our future lives. But for Linus Patrick Driscoll it is the absolute reverse. His life is in your hands.

  There is an ancient legal principle which, through the centuries, continues to grow in acceptance and observance. And it is this. It is far better for ten guilty to go free than one innocent be convicted. Please carry that noble principle in your hearts and minds when you retire to consider your verdict, which I respectfully submit to you should be ‘not guilty’.

  When I sat down, emotionally drained and before Bill Job QC began his address, Driscoll leant forward in the dock and said quietly, ‘Thanks, Bill.’ The thanks before verdict was generous. He knew I had done my best, but would it be good enough?

  I had addressed the jury for over three hours, imploring them, looking each one in the eye, raising my voice, moving about. Still no feedback, no smiles or quizzical stares or frowns, just twelve people with the best poker faces in town.

  My job had been to analyse the evidence and seek to convince the jury the police had fabricated Driscoll’s unsigned confessions, or at least raise a reasonable doubt. The conflict between the police and Colin Heazlewood could not be reconciled. The jury would have to decide whom they believed, the cops or the solicitor.

  * * *

  For defence counsel, the closing address of the Crown Prosecutor is the second worst part of any trial. Undoubtedly, the moments just before the verdict is delivered are the worst.

&nb
sp; Bill Job QC began his address calmly and confidently. He told the jury, correctly, that this was a trial into the guilt or otherwise of Linus Patrick Driscoll. It was not an inquiry into the New South Wales Police Force or, more particularly, the questioning techniques of the detectives. The jury must not be deflected by side issues from their sworn public duty.

  This was not a complicated or difficult case at all, he said. It was all in the five-page and two-page records of interview with Driscoll, which the Crown emphatically said were unambiguous confessions. Nor did the confessions stand alone.

  Driscoll had owned the murder weapon and a twin. It was not a kitchen knife or blunt instrument but a rare and wicked weapon. Driscoll had elaborately modified the weapons into machine gun pistols. Mr Job even invited the jury to examine the weapon—unloaded—in the jury room. Driscoll admitted ownership of such weapons and, indeed, even the very murder weapon itself until the eve of the murder. That was on his own admission.

  Mr Job added Driscoll’s claim to have sold it for the princely sum of $150 the day before the murder was simply unbelievable and, in any event, was denied by the alleged purchaser.

  ‘What was the murder weapon? Answer: a machine pistol. Where was it found? Answer: Bondi, near where Driscoll had worked. All of that pointed to a guilty man.’

  Very damaging stuff and Bill Job made the most of it in a way only the very best can do. Then, not in any sarcastic or unfair way, Job asked the jury to ignore the very prejudicial nature of the bombs and machine guns and concentrate not on speculation, but on the evidence.

  That was an honourable and proper course by Job, but from our point of view, the less said about that defence Achilles’ heel the better. Driscoll’s dubious friends, weaponry and the violence were not the fault of the police.