Bill Job met the conflict between the versions of Detective Morey and the young solicitor, Colin Heazlewood, head on. He firmly and unambiguously asked the jury to prefer the inspector’s account where there was conflict between the two. The Crown relied upon Detective Inspector Morey as a witness of truth and honour. This was a powerful public endorsement of those police, powerfully presented.
Bill Job absolutely ridiculed the proposition that Morey, O’Hagan and Rogerson would lie under oath or at all. The enormity of that allegation defied belief. On behalf of the Crown, and the State, Job embraced the unsigned records of interview as authentic, credible confessions given quite freely in Melbourne and Sydney. Driscoll’s attempt to retract them, when he realised what he had done, was understandable but too late.
Bill Job QC concluded by asking the jury to fulfil what he said was its clear public duty and return a verdict of guilty.
In contrast to me, Job had chosen a calm and analytical approach, relying heavily, as he was fully entitled to do, on the disputed confessions. It was a strong performance and by the time he finished, we felt crushed.
In many trials, when the cases for both sides have closed, the likely verdict is a fifty-fifty proposition. The odds were heavily against Driscoll and the atmosphere at Darlinghurst that day in the legal room was gloomy. The trial had taken nine days. We were resigned to defeat. Baker, as was his custom, went down to the cells to be with Driscoll.
No veteran court watchers—and all the regulars were there—gave Driscoll a chance of winning. They are seldom wrong. The fact Driscoll was a well-known underworld figure hung over the case and there was no possibility the jury would have any sympathy for him personally.
The trial was edging towards a close—all that remained was the judge’s summing up. Judicial style can be far more influential than counsel’s presentation. The impartiality of the judge’s summing up was not something one could confidently take for granted towards the end of the twentieth century. Success as an advocate is one of the essential prerequisites before becoming a judge and many new judges carry too much of the advocate quality with them, and enthusiastically so, to the Bench. Impartiality is desirable, but not mandatory. Judges can, and often do, structure their summing up in a fashion that favours one side. That is permissible, provided the jury are told they are the sole judges of the facts. It is all a matter of balance.
This task was new to Justice David Yeldham, but he exhibited a style that he further refined in the years ahead. That observation is based upon my personal experience of conducting trials before him at Darlinghurst and a murder trial at Broken Hill. Human nature being what it is, in a difficult case such as this, I thought the jury might look to the judge for a hint as to his line of thinking. He gave none. His summing up was scrupulously fair and even-handed and, unlike counsels’ addresses, concise.
It was now up to the jury of twelve, if they were able, to reach a unanimous verdict. It was mid-afternoon.
* * *
There is no tenser moment than when the court is told the jury has reached a verdict. At Driscoll’s first trial the jury took just one hour to reach a guilty verdict. This time, only sixty-five minutes had elapsed. It was not a good sign.
Spectators crowded inside the public gallery, the official court reporters sat beside the judge’s associate in front of the judge, and the counsel and solicitors were all seated at the bar table. There were police everywhere, surrounding the dock, sitting and standing. Clearly, this was a big day for the New South Wales and Victorian police.
There was a knock on the green felt–covered door leading to the bench from the judge’s chambers. The officer of the court, the tipstaff, appeared in a black frock coat carrying a white staff tipped with a gold crown, the ensign of the office and authority of a judge of the Supreme Court. Then, Justice Yeldham entered the court in his scarlet robes. The judge nodded towards the dock and Jimmy Driscoll was quickly escorted up the stairs from the dimly lit cells into the dock, where he remained standing.
Driscoll was dressed in his conservative dark suit, white shirt and dark tie. Despite the intense glares of everyone in the court and the prospect of life behind bars, he appeared calm and composed. There was complete silence.
The judge said briskly, ‘Bring in the jury.’
The jury filed in and took their seats in the jury box. As usual, their faces were utterly expressionless. The jurors did not look at the accused, which is usually a sign of an impending conviction.
The only people standing were the judge’s associate, Jimmy Driscoll and the four uniformed police surrounding the dock. The tension was great.
The judge nodded to his associate and she then said, ‘Would the foreman please rise.’ The associate then asked, ‘Has the jury agreed upon a verdict?’
The foreman said, ‘We have.’
The associate asked, ‘Do you find the accused, Linus Patrick Driscoll, guilty or not guilty?’
In a firm, clear voice, the foreman answered, ‘Not guilty, Your Honour.’
There was no audible reaction in No. 5 Court at Darlinghurst, only a stunned silence.
The detectives did not hide their disappointment. This was not just any case: they had been accused of fabricating an unsigned confession and verballing a prisoner to get a conviction. The jury had not made a finding that the police were corrupt, but the verdict said as much.
Driscoll was cool as usual, but suddenly raised his voice, saying he wanted to address the judge.
A million things went through my mind. I could not allow Jimmy to speak. He had been acquitted and what if the foreman had made a mistake and delivered the wrong verdict? By law, if the foreman got the judgement wrong, the acquittal could have been reversed providing the jury had not left the jury box. I think it was caution and the shock of the acquittal that made me talk Driscoll out of giving a final speech. I certainly didn’t want Jimmy Driscoll going down in legal history as a modern Daniel, who had returned to the lion’s den for his hat!
To this day I wonder what Jimmy Driscoll wanted to say to the courtroom full of police officers staring at him. Perhaps he just wanted to thank the jury or the judge for a fair trial? On the other hand, he could have been filled with an uncontrollable urge to vilify the police for framing him. After all these years I believe my instinct was right. The objective had been achieved. The jury’s verdict was final. There had been no mistake.
The Sydney Morning Herald of 30 November 1977 carried the not guilty verdict under the headline, New jury acquits man of murder. The report continued: ‘…junior counsel for Driscoll, Mr W Hosking, spoke to him when Driscoll asked Mr Justice Yeldham if he could say something, but he said nothing after being spoken to by Mr Hosking’.
After the verdict, Driscoll did not walk free from the dock into the afternoon sunshine, but was taken below to the cells at the request of the Crown Prosecutor Bill Job QC, because of outstanding, unresolved firearm charges that had been in play for more than three years. As he was led away, Driscoll smiled and waved to his wife, Pauline, and friends in the public gallery. Later that week, the holding charge of possessing a submachine gun was dropped by the Crown when he appeared before another judge, this time in the District Court.
Driscoll’s troubles were not over yet. As he left the District Court dock, detectives stopped him and read aloud a provisional warrant from Victoria. He was sent back to Melbourne where he served more time for possessing firearms and was finally deported to Britain. In total, Driscoll had served almost four years in a maximum security prison.
From a selfish point of view, the Driscoll trial was okay for me. It was my first big win. Driscoll and his wife, Pauline, sent me a thank you Christmas card that year and, yes, it was signed. I still have it.
In 1991, Driscoll granted an interview with columnist and solicitor, Chris Murphy, for the weekend tabloid The Sun-Herald. It read, ‘Out of trouble since being deported to England in 1979, Linus Driscoll has blended into an elegant London suburb. He has belied h
is Australian media image as a “crim who put the fear of God into most of his underworld cronies” by graduating through night school and college. He is working as a plumbing and heating engineer.’
Then, while researching this book, it was discovered that, in 1994, the Department of Immigration approved Driscoll’s application to return to Australia. If he did, he has obviously kept out of trouble as his name hasn’t appeared in the media or police dispatches since. Driscoll would now be well into his late seventies.
* * *
Driscoll’s case became a landmark decision by the High Court and was the beginning of the end of the notorious police verbal throughout Australia.
The ultimate police surrender to the descent of the police verbal into history was still years away. It would be another few decades before police were compelled to adopt the use of electronic recording devices during records of interview. The use of audio and visual recording was a gradual recognition of reality and the need for more sophistication, rather than the crude verbal forced upon Linus Patrick Driscoll. In the outside world, computers revolutionised commerce and daily life long before being embraced by police.
Top police were then, and are always, highly intelligent and committed. It must be said their surrender to technology was also helped along by parliamentary reform to the Evidence Act 1995. Driscoll’s case is such a historic trial because the decision of the High Court to allow his appeal cited the danger of police verbals. The jury’s courageous rejection of the Driscoll verbal murder confession was resoundingly vindicated.
Out of court, some police were not shy about admitting to verballing. Again, in the Chris Murphy 1991 article for the Sun-Herald, Roger Rogerson admitted, ‘the others [police] would think you are weak if you didn’t do it … and prisoners think a policeman who doesn’t give them a few words of a verbal isn’t worth his salt’. He added, ‘The hardest part for police was thinking up excuses to explain why people didn’t sign up.’
As a media commentator, Chris Murphy was as influential and respected as he remains today as a leading lawyer. His absolutely fearless column, quaintly named ‘Murphy’s Law’, was required reading for politicians, judges, lawyers and police. Some hoped for a mention, others dreaded it. He was also a passionate combatant against the police verbal, and once drove a vehicle around Sydney which bore the numberplate VERBAL.
From the seventies on, the police force was a disciplined, hierarchical body based substantially on competence and efficiency and seniority. Seniority, however, was the dominant factor. There was no room for not playing the game. It was considered dissent. Dissent would betray, it was said, ‘an attitude problem’ and ‘unsuitability’ for detective work. Then uniform postings to arid, desert outposts like Wilcannia and Hillston, in western New South Wales, beckoned.
As in Driscoll’s case, police resent answering allegations of lying. That is understandable. Accusations of police perjury—and worse—are stressful for all concerned. They are hurtful to police and their families. That must be more so in cases where the police officer involved knows the allegations are false.
But the client’s instructions set the agenda subject to strict ethical and professional restraints. Counsel have a duty to perform. If your client says they were verballed, you are bound to put that case before the court. Our system of justice is an adversarial one.
Modern electronic interviewing techniques not only protect police against unfair attacks by criminals but also protect suspects from being framed with false evidence. The introduction of the video technique by police has dramatically reduced the courtroom clashes over alleged verbals.
That former, almost staple, diet of criminal trials is today virtually dead.
* * *
Driscoll’s new life on release contrasts greatly with that of his adversary, Detective Roger Caleb Rogerson. In June 2016, Rogerson’s downward spiral culminated when he and his coaccused, former detective Glen McNamara, were found guilty of the murder of twenty-year-old Jamie Gao two years earlier. Both Rogerson and McNamara accused the other of pulling the trigger during the botched drug deal. Then later, in September, Justice Geoffrey Bellew sentenced the frail 75-year-old to life imprisonment. The former, highly decorated detective’s conviction was achieved without either a signed or unsigned confession—not a verbal in sight. Perhaps elite detectives of the twenty-first century are more chivalrous than those of the Morey–Rogerson era.
CHAPTER
2
The Trial of Lady Chatterley’s Lover
Lady Chatterley’s Lover was the romantic, even dashing, literary creation of the novelist DH Lawrence. In the tale, the gamekeeper, Oliver Mellors, enjoyed a torrid love affair with the noble lady of the house, Constance Chatterley. The climax, if I may so describe it, was romantic. It was first published in 1928, but banned in Australia and many other countries because of its explicit story. Far too risqué for the times.
My client, Jozef Kiraly, was a humble gardener retained in that capacity by the dowager lady of a Sydney northern beaches mansion, Mrs Prudence Lydia Washington Carter. Her residence was in the fashionable Prince Alfred Parade, Newport, overlooking the glistening waters of Pittwater, which is dotted with recreational sail and motor boats. Their relationship grew from friendship to seduction and a love affair. Kiraly was Mellors to Mrs Carter’s Lady Chatterley.
Kiraly and Mrs Carter’s friendship dated back almost twenty years to when her husband was alive. After Mr Carter’s death, they had drifted apart. Mrs Carter had been a widow for almost four years when she encountered Kiraly again, by chance, at the Newport Hotel.
Mrs Carter was a handsome and lonely lady living in the large mansion and soon invited Kiraly to move in. He readily agreed. Having been her husband’s gardener he was engaged to do gardening for her, but only one day a week. Free board, with his own room, was offered in lieu of wages. A talented cook, he would also do most of the cooking.
He was called ‘Joe’ but she was never to be called ‘Prue’—she was ‘Mrs Carter’. She was sixty-two years old. Jozef Kiraly was two years her junior.
As time went on, the mistress–servant relationship softened to become very friendly, eventually moving on to seduction and a love affair. Kiraly began to refer to Mrs Carter as ‘darling’. Tending the flowers was less fun to the couple than sharing a whisky and red wine in bed, mornings and evenings.
The development of a love triangle shattered that tranquillity. Another, younger, man called Alan arrived on the scene. When Mrs Carter taunted Kiraly about her younger man, his pathetic reply was, ‘Forget me, I am a poor man.’ Later, he would modestly proclaim that, as a lover, ‘Nobody ever looked after her like I did.’
On the night of 16 May 1973, the couple shared a bottle of Hungarian liqueur as a farewell drink. Kiraly had accepted Mrs Carter was moving on with her life, and they slept together, but there was no sex.
The events of the next few hours are uncertain.
The following day, 17 May, Mrs Carter woke Kiraly shortly before 5 am by stroking his face gently and suggesting they share a cup of tea. Mrs Carter took her tea with the conventional milk and sugar, and copious amounts of whisky. This predilection of having whisky in her tea existed well before Kiraly was on the scene. In Mrs Carter’s own words, ‘it just warmed me … it is smoother’. Kiraly also drank tea, but usually followed it with red wine. This was their daily ritual. Normally, Kiraly did not match Mrs Carter’s consumption of alcohol. He was employed as a stonemason and during the day he did hard physical work. A heavy, pre-dawn tipple was not a good idea.
On this day, however, Kiraly and Mrs Carter consumed a half bottle of whisky between them and Kiraly had foregone his usual habit of having red wine. For Mrs Carter, the situation suddenly became ugly. Kiraly threw her bedclothes off and, after a struggle, he tied her hands and ankles with rope. According to Mrs Carter, Kiraly retrieved a four-gallon drum (roughly eighteen litres) of petrol from the garage and ‘sloshed’ the contents all over the bedroom carpet. She wa
s terrified. After a time the tension subsided and Kiraly freed Mrs Carter from bondage. The couple then had yet another cup of tea and talked.
Mrs Carter later said Kiraly produced fourteen of her Mandrax sleeping tablets. She consumed seven of the tablets and he the remainder, which he spat out. The next thing Mrs Carter knew her house was full of thick smoke. Kiraly lay unconscious on the floor next to the empty four-gallon petrol drum.
Fire brigades and an ambulance rushed to the scene. Kiraly was soon on his way to hospital for treatment. For a day, his life hung in the balance. Most of the fire damage was to the furniture and carpet in the main bedroom, which was totally destroyed. Ironically, the double bed escaped almost unscathed, but for a little scorching.
It was mid-afternoon when Sergeant Stuart MacLeod arrived at the scene. Mrs Carter was still wearing her nightie. MacLeod noticed reddish rope-burn marks on her wrists, and bruises and abrasions on her body. Detective Sergeant Mervyn Schloeffel of the Special Crime Squad from headquarters soon took charge of the case due to its gravity.
Upon Kiraly’s release from hospital he was arrested and charged with arson. The charge was further aggravated by the fact that the police alleged the fire had been deliberately lit with Mrs Carter still inside the room. At the time, an arson charge carried life imprisonment. Kiraly was in big, big trouble.
Kiraly had lived in Australia for almost twenty years, having emigrated from Hungary, and spoke English quite well. Even so, from the outset, he asked Detective Sergeant Schloeffel for the assistance of an interpreter before being questioned. Police readily agreed. He had never been in trouble with the police before and perhaps didn’t trust he could explain himself clearly in English. This caused a delay of some hours while an official Hungarian interpreter was located.
Detective Sergeant Schloeffel’s questioning of Kiraly was searching but fair. Kiraly admitted being drunk at the time, restraining Mrs Carter and fetching the petrol, which he splashed about the bedroom. In his explanation to police, he blamed Mrs Carter for mixing the alcohol to make the prescription drugs cocktail. Kiraly’s portrayal of the liquor and ropes as a prelude to playful sexual servitude was not an instinctively appealing explanation. The uncontested evidence was damning, but he refused to admit to lighting the fire.
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