Justice Denied

by John Suter Linton

  Yes, I had saved Michelle Lawford from gaol. Was it a time for celebration? Certainly not. She had admitted criminal responsibility for killing the man she loved and the father of her child. With all that had happened, there was a long, emotional road ahead for mother and daughter. At least they were now taking it together.

  * * *

  Rhadamanthine—that one word of classical imagery—was an intriguing flourish by Justice Cross. It did not dilute, however, the judge’s clear decision that this was one of those rare moments where extreme mercy was allowed.

  Was there, therefore, a real possibility a jury, as Justice Cross believed, would have acquitted her outright? Very likely, yes. But this opinion is blessed with hindsight. And against this was the risk of conviction for murder. Trials to this point had not been favourable to the accused and, bluntly, the odds were against us. Justice Cross may have, again with hindsight, made Mrs Lawford’s case sound like it was an easy one to win, but reality is very different. There are no easy cases; they are all difficult because there is so much at stake.

  By accepting my advice, Mrs Lawford had forfeited her right to have her case determined by a jury. I have wondered if my decision was too timid. I only say this because, in 1979, after Mrs Lawford’s case, I defended a chef, 39-year-old Peter Werner Krauss. He was employed at the isolated but popular tourist location of Jenolan Caves, southwest of the Blue Mountains. Krauss was accused of murdering a fellow employee at the hotel, Garry Robert Nicholson. Krauss maintained he was not guilty because of self-defence.

  Before the trial, the Crown offered to accept a plea of manslaughter. I explained to Krauss that such a guilty plea would not abandon the self-defence, but concede it had gone a bit too far. I warned Mr Krauss a gaol sentence of a couple of years was inevitable if he took that advice. On the other hand, if the jury did not believe his side of the story and convicted him of murder, the judge was bound by law to pass only one sentence. Life imprisonment.

  From our first meeting at Bathurst Gaol I was impressed by Peter Krauss and sympathetic towards his predicament. He was a gentle, likeable man of good character, but the case against him was strong. There were two wounds on the victim, and Krauss had initially lied to police about knowing anything of Gary Nicholson’s death. These were extremely negative factors. Moreover, Nicholson was unarmed. Krauss, however, was the victim of bullying. At the time of arrest, police also recorded injuries upon Krauss’s body consistent with being beaten. My feeling was a verdict of manslaughter was the most likely outcome.

  With my instructing solicitor, Chris Bruce, we conferred with Krauss at Bathurst Gaol many times prior to the trial. Not always do solicitors and barristers agree. Chris Bruce was adamant the offer of a plea to manslaughter should be rejected and the outcome left to what he described as the good sense of a Bathurst jury. Bruce was a local boy. He was also very experienced and had a reputation for sound judgement. My enthusiasm for risking the mandatory life sentence was not great at all. That outcome was a real possibility. The ultimate decision, however, was for the client.

  Peter Krauss decided ‘murder or nothing’. We went to trial.

  Peter Krauss’s defence was simple and convincing and he elected to give evidence on oath. He told of hiding in his room after being assaulted by Gary Nicholson. Nicholson then forced his way into Krauss’s room, moving towards him in a threatening manner. Krauss was frightened and reached for his cook’s knife, which was in a bag nearby. He swore he had no recollection of actually stabbing the deceased—not necessarily an untruth if he was terrified and feared for his life. The ready availability of the knife in his room was not necessarily an incriminating feature either. After all, he was a chef—it was perfectly normal not to leave his tools of trade lying around in the kitchen. Krauss was an honest man who believed he had no alternative other than to reach for and use his knife to defend himself.

  The Crown submitted to the jury that Krauss’s blanket initial denial was undoubtedly a lie, told because of a guilty conscience. Another incriminating fact was Krauss’s action in burying the fatal knife in the ground. It was soon discovered by the Army using metal detectors. There were also the two stab wounds. This undisputed fact doubled his problem: one wound could be instinctive, but a second could indicate deliberation or anger or both.

  When told by the police he was a suspect, Krauss caved in and replied, ‘why [has] this happened over a clown like him … my life is ruined’. Prior to this incident, Krauss was a man of excellent character with an impressive work record.

  Peter Krauss had decided to put his faith in the jury and let them decide his fate. That was his right. And his faith was justified when, after the shortest of retirements, the jury unanimously returned a verdict of not guilty. Krauss had been vindicated, he was still of unblemished character, and he could now celebrate his impending fortieth birthday a free man.

  Peter Krauss’s story is a perfect contrast to Michelle Lawford. While both had forensic evidence proving excessive force had been applied, Lawford decided to take my advice, with a strong prospect of still doing gaol time, while Krauss believed in himself and the jury and went for broke. Pete Krauss showed me it was possible to risk it and win a murder trial.

  The outcome of Mrs Lawford’s hearing still troubles me, though. Would I have done anything different? I’m not sure. I did what was right at the time. To explain, but not to give as an excuse, I followed advice I had been given by Tony Bellanto, who always said, ‘Be very careful, son … remember, we lawyers never serve a day.’

  * * *

  As a footnote, many years later, after I had been made a judge and Justice Cross had retired, he invited me and my wife, Judith, for Sunday lunch at his home in Bowral, in the Southern Highlands. It was a very pleasant afternoon, though I have to admit to being awed by the occasion and feeling a little awkward about calling him ‘Ron’ on his insistence. Judges and the profession usually don’t mix, unless they are friends. We ate, we drank, we talked, we watched cricket, but we never mentioned anything regarding Mrs Lawford. All that had to be said, had been said in court on that day.

  Sadly, Justice Cross and his wife, Gloria, did not enjoy a long and happy retirement. They were involved in a serious vehicle accident and Mrs Cross was killed. Justice Cross then went to Canada to be with family, but died soon afterwards. The late Judge Paul Flannery organised a Requiem Mass which was attended by a large number of judges and the legal profession to pay tribute to a much respected figure.

  CHAPTER

  7

  Maddison v Goldrick—The Case that Changed the Law

  On Monday morning, 5 May 1975, there was a heavy police presence and security was tight at the new City Coroner’s Court, which was located on Parramatta Road at Glebe.

  The preliminary hearing of the murder charge against Gary Findlay was about to begin.

  Historically, the Sydney City Coroner’s Court was a dingy, grim, small building in The Rocks area on the harbour foreshore opposite the Opera House. Its new home was almost opposite the entrance to the Sydney University main oval. The architecture was coldly modern, and the atmosphere was still grim. This was accentuated by the grey brick walls inside the courtroom.

  My client was Gary Findlay, a 23-year-old butcher who was charged with the shooting murder of a bank teller during the armed robbery of the ANZ Bank at Bondi on 19 March 1975. He also faced a charge of the attempted murder of an elderly man at Epping, in Sydney’s northwest, two days before the robbery. He had been granted legal aid and I was the public defender assigned to his case.

  Gary Findlay had been arrested the day after the robbery and immediately complained to the magistrate, at Waverley Court in Sydney’s east, protesting his innocence. It emerged, however, that, at the time of the offences, Findlay was on parole after serving three years in gaol on three sentences of armed robbery. Perhaps that inspired police interest in him as a suspect in the first place. Unrepresented by any lawyer at that stage, he denied a police claim he had confessed. There
was never a written or signed confession, but only two, disputed, unsigned records of interview. That was the Crown case.

  The police had also held two identification parades. The first was on the day of Findlay’s arrest and the other six days later. On each occasion three eyewitnesses were shown the line-ups, for a total of six witnesses. On the first occasion, one person identified Findlay. The other two eyewitnesses did not. At the second line-up, none of the three eyewitnesses identified Findlay. Importantly, Detective Sergeant Angus McDonald, the officer in charge of the case, later conceded that, in the second line-up, another man had twice been identified by witnesses. That shock revelation severely damaged the police case. Moreover, the twice-identified man was allowed, by the police, to leave the police station and vanish without trace. Not even his name or address was recorded.

  The committal proceedings are a preliminary hearing to disclose the prosecution case before trial by jury. Hearing the matter was magistrate Mr John Goldrick. He was the first appointment to the magisterial bench from the Bar. Previous to this, appointments were made by seniority from the ranks of public servants working in the Justice Department. Mr Goldrick proved to be polished, polite and decisive.

  The atmosphere in the courtroom was tense, particularly as I had informed the magistrate of my instructions, which were that the police had framed Gary Findlay.

  It was against this background I began my cross-examination of Special Crime Squad Detective Sergeant Angus McDonald. McDonald was a daunting witness. Conservatively dressed in a dark suit, he gave evidence with a distinctive Scottish brogue that was far from a whisper. He was a highly respected detective. In private life, he later had the distinction of being husband to the governor of Queensland. Cross-examining him was always a formidable task. He rejected allegations of fabrication impressively, with emphasis and drama.

  As officer in charge of the case, Detective Sergeant McDonald had prepared what has become known as the ‘police brief’. It consists of the statements of the witnesses who had been interviewed by the police and may be called to give evidence. The name police brief is not an accurate or legally correct description, but it has been used so much over the years it has become part of the language. A brief is the file a solicitor delivers to a barrister for an advising or a court appearance and it is protected by legal professional privilege. The police collation is not. The police brief in the Findlay case was, as always, in the courtroom in the custody of the police prosecutor.

  I decided, as I had the detective sergeant in the witness box, to call for the police brief, as was my right under Section 12 of the Evidence Act. It was a tactical move, to have advance disclosure of the Crown witnesses and their evidence and then probe for error or worse. No one in court was the least bit surprised when I did it. Calling for documents during cross-examination was a daily occurrence in courts all over the country in civil as well as criminal cases. But calling for and being granted access to a police brief was a slightly different matter. Opposition to defence access to any of the police brief was based on the claim this had the potential to reveal the secret identity of a police informant. In the public interest, such identities are rightly kept confidential. In Findlay’s case, there was a fatal flaw to such an argument: there was never any suggestion this police brief contained any such information.

  When I asked Detective Sergeant McDonald, in cross-examination, if there was any problem with disclosure, he had emphatically denied there was. Angus McDonald was not a newly promoted detective sergeant; he had a reputation as an elite detective who had played decisive roles in most major cases.

  Mr Goldrick specifically asked Detective Sergeant McDonald three questions. Did he have any personal objection to releasing the police brief? Did the brief identify a police informant? Was there any matter of public policy which required consideration? The detective sergeant replied, ‘No, I have absolutely nothing, nothing to hide whatsoever.’ He added modestly, ‘I am as open as a book.’

  The police prosecutor, Sergeant Noel Short, a serving police officer given the honorary rank of acting sergeant, objected and did his best to keep the brief from being handed over. In those days there was no barrister or solicitor on the prosecution side; in most cases, the police prosecutor was usually junior in rank and subject to direction by the detectives in the conduct of the case. That was the direct opposite of the ethical defence structure. ‘Instructions’ from the solicitor were not orders, but the client’s confidential account of their side of the story which would gradually emerge during cross-examination. Strict disciplinary rules applied to all defence counsel. In the worst case, striking off from the lawyers’ roll and the inability to practice law was the sanction.

  Those ethical restraints did not apply to non-lawyers, such as the unqualified police officer prosecuting. The use of the adjective ‘unqualified’ does not carry with it the implication of incompetence, far from it. Before the advent of the Director of Public Prosecutions, police prosecutors could, and did, mix it with the best of the criminal bar.

  Following legal arguments, the brief was produced to the magistrate. Mr Goldrick then granted me permission to read it. Conditions were imposed: I could only read it in the courtroom, while under supervision. I was still cross-examining Detective Sergeant McDonald when the court adjourned at four pm.

  * * *

  No sooner had the day ended than a writ was served on the magistrate, Mr John Goldrick, by the police to challenge his ruling in allowing me access to the police brief. The police tactic in response to my call was unprecedented—it involved the civil jurisdiction of the Supreme Court, not to determine the guilt of the accused man, but to interrupt the proceedings. The case became known as Maddison versus Goldrick. ‘Maddison’ was the Honourable John Clarkson Maddison, Her Majesty’s Attorney-General for the State of New South Wales. Mr Maddison was the plaintiff in name only. He had no personal involvement in the case. Likewise, nor did Mr Goldrick. Neither participated personally in the proceedings at any level. This was observing strict protocol and tradition.

  Findlay, on the other hand, was represented in the proceedings, though not named. It was very much in Findlay’s interest to be represented, as Magistrate Goldrick had ruled in his favour. Findlay was as interested in the outcome of the matter as I was.

  Naturally, at this time, the committal proceedings into the case against Gary Findlay were stayed. For how long, no one knew.

  The venue had moved from the Coroner’s Court at Glebe to the Common Law Division of the Supreme Court in King Street in the city. The chief judge of that division, Justice Robert Lindsay Taylor, also known as ‘Bully Bob’, elected to hear the case himself.

  The Crown did not select the Senior Crown Prosecutor nor one of his deputies. So seriously did the police and Crown law authorities regard the ruling, that the famed Chester Porter QC, of the private bar, was briefed. His junior, also of the private bar, was the portly John Traill, on the brink of taking silk himself. A formidable duo. Chester Porter was one of those rare silks whose practice extended across many jurisdictions. One of his specialties was, usually, preventing magistrates’ decisions during a hearing from being overturned by a higher court. With each successful representation, Chester Porter’s reputation grew.

  I consulted the Senior Public Defender, Howard Purnell QC, as to our next step. He thought the magistrate was correct and, like me, was a bit taken aback by the police reaction. He selected our colleague, the wily, veteran and gifted appellate lawyer Cliff Papayanni, to enter the fray.

  Cliff Papayanni was a man of many parts, a brave World War Two air force veteran of bombing missions over Europe, and a first-grade wicket keeper who was picked to play for New South Wales country against the South African cricket team in 1952–53. He was a much respected and admired advocate, particularly at the appellate level. While he did not wear a silk gown he certainly had a silken legal intellect. Not all great lawyers take silk. Today, Cliff Papayanni has the distinction of barristers’ chambers named
in his memory, which opened in 2012 in Wagga Wagga, his birthplace.

  Purnell’s decision to assign Papayanni was not a decision to stand me aside from the case, it was recognition of the fact Cliff Papayanni was better equipped than me to represent Gary Findlay in the common law division of the Supreme Court. Appearing for Findlay, Papayanni was free of any personal criticism or professional embarrassment.

  Before Justice Taylor, Chester Porter attacked the propriety of my conduct in making the now controversial call for the police brief. This took us all by surprise. The possibility of this development had never occurred to me. The contention was the call was not a proper one. This adverse top level police reaction well and truly shocked me. Surely there was no impropriety in seeking access to the statements of those who would be called as witnesses?

  The other argument against us was the police making vague claims of potential harm, but calling no evidence of any actual or potential harm. There was never any claim of state secrets, such as the identity of an informer, or any other reason for the brief not to be seen.

  Far from being prejudiced by the contents of the brief, Detective Sergeant McDonald had welcomed it, saying he ‘had nothing to hide’ and was ‘open as a book’. The articulate and highly intelligent McDonald was in no way unsettled or caught off guard.

  Had Mr Goldrick not upheld my call for the statements that would not have been the end of the matter. There were other avenues open to me during the hearing and it would have been perfectly acceptable for me to ask what statements had been taken, from whom, and then call for each statement individually as each witness gave evidence.