With regards to the suggestion my actions at the committal were improper, Cliff Papayanni, sadly, was unsuccessful in defending my call as being part of a legitimate forensic endeavour. This was a major stumbling block and a heavy blow for me. So, despite Gary Findlay having the benefit of Cliff Papayanni’s legal skills, the argument upholding the magistrate’s decision failed in the proceedings before Justice Taylor. The senior judge quashed Mr Goldrick’s ruling.
We were dumbfounded. But the decision was only a setback. Immediately an appeal was lodged, not to the Court of Criminal Appeal, but to the Court of Appeal, the highest civil court in the New South Wales legal system. Usually, the Court of Appeal consists of three judges presided over by the president, the second most senior judge in the state. This time, in Maddison versus Goldrick, the highest judge, Chief Justice Sir Laurence Street, elected to sit. On his right was the president, Justice Athol Moffitt, and to his left, Justice Gordon Samuels, who would be appointed governor of New South Wales in 1996. The three were the cream of the state’s judiciary.
The calm and unflustered Cliff Papayanni came through. All three judges agreed Mr Goldrick’s decision was correct and had not breached any confidentiality. ‘The prosecution should supply to the defendant copies of witnesses’ statements.’ Justice Samuels delivered the unanimous finding on behalf of the Bench and said, ‘Any procedure which deprived a defendant of the opportunity to pursue a proper and often fruitful course in cross-examination would be, in my view, seriously defective.’
The judgement and its legal implications were of such importance that the Crown refused to accept defeat in the Court of Appeal. They decided to go even higher and sought special leave to appeal to the High Court of Australia. The High Court’s home was still in the Darlinghurst complex at the Bourke Street end. The Crown asked the High Court to intervene because it extravagantly claimed the ‘ruling could jeopardise the whole criminal administration in New South Wales’. It was further claimed Mr Goldrick’s ruling was ‘a serious departure from normal practice’. This was heavy stuff.
Those submissions before the highest court in the land were made by the eminent Mr Doug G McGregor QC, a president of the Bar Association and later judge of the Federal Court of Australia. His junior was Brian Herron, also destined to be a judge. By any test, this continued the very top of the range representation for the Crown, and all selected from the private bar. This was an awesome demonstration of the power of the state.
When the matter was called, Cliff Papayanni was appearing for an accused before a jury in the District Court in another part of the Darlinghurst complex. With his trademark calm and unruffled way, Papayanni somehow managed to juggle both cases. I did not dare to contemplate what would have happened if a full bench of the High Court had been asked to grant Papayanni an indulgence, because he was part heard in the District Court. I need not have worried.
The presiding judge was Chief Justice of the High Court, Sir Garfield Barwick, who was sitting with Justices Gibbs and Jacobs. Together, they refused the Crown special leave to appeal, with Sir Garfield noting the term ‘police brief’ was a misdescription. The date was 3 May 1976, almost exactly a year to the fateful day on which I had made what turned out to be the highly controversial call for the police brief. The matter could now resume at Glebe Coroner’s Court.
The whole process of challenging Mr Goldrick’s ruling was misconceived. That is best demonstrated by history: today, those statements of witnesses are given to defendants well before the committal proceedings even begin. As the unanimous judgement of the Court of Appeal validated, it advances the administration of criminal justice. The Court of Appeal judgement in Maddison versus Goldrick authoritatively stated the law as it stood. Gradually, however, that decision led to statutory provisions which changed the law, and were designed to streamline the lower court hearings. Few, if any of them, were beneficial to the accused. The nature and scope of committal proceedings would never be the same again.
Then came the ‘paper committal’, which further drastically altered pre-trial proceedings, meaning no witnesses are called in the Local Court in indictable cases unless the magistrate is persuaded there are substantial reasons to justify the calling of those witnesses and allowing cross-examination, under Section 48E of the Justices Act.
This effectively emasculates committal proceedings, which are the first step in the prosecution of every serious offence. The committal involves the presentation, by the police, of enough evidence to establish a case for the accused to answer and thus be committed for trial. It also informs the accused of the case that they are required to answer. But, essentially, as it stands today, there is a saving of public money. This is the overriding philosophy which, at the end of the day, rules the roost. There is a fundamental right to not only know the prosecution case but to also test it by cross-examination.
Happily, the electronic video recording of police interviews in more recent years has drastically diminished such courtroom conflicts. Now there exists some protection for an accused from being verballed and conscientious police from the ordeal of denying false allegations of serious criminal conduct against them personally.
* * *
After the High Court had handed down its finding, Cliff Papayanni returned to our chambers and, with a laconic smile, handed me Findlay’s brief and said, ‘I’ve won … now you finish it.’
After almost a year, the coast was clear to resume the committal hearing before Mr Goldrick, and for me to resume my cross-examination of Detective Sergeant Angus McDonald. Yes, my access to the statements continued. Mr Goldrick’s ruling on an issue, which arose suddenly and without notice, had been vindicated at the highest levels.
At the end of the committal proceedings, Gary Findlay was committed for trial on both charges. I believed I had set the groundwork in exposing the flaws in the police case to put doubt in the minds of a jury. Before the Public Solicitor ever appeared, Findlay had publicly shouted his protestations of innocence in court. He disputed the two unsigned records of interview from the outset. Findlay’s instructions were unequivocal: these documents were false. The line-up parades distinctly favoured Findlay. His case had all the hallmarks of a fiercely contested trial with a real chance of acquittal.
It was now trial time.
Then, for the first time, Ernest Byron QC was briefed to appear for Findlay at trial. The presiding judge was Justice David Yeldham. A panel of potential jurors was present in the court and precincts, but a jury was never empanelled.
Mr Findlay pleaded guilty.
Suffice to say there was no trial. Proceedings were brief indeed. Even Justice Yeldham was taken aback by the plea. In those days, it was commonplace to always run a trial when faced with a murder charge, whatever the evidence. There may be something in defence to bring about, at least, a plea bargain, reduction in sentencing or, at best, an acquittal. Without a challenge, the accused was looking at life.
Justice Yeldham told the court that pleas of guilty were not generally accepted on murder charges. The judge said Findlay was over twenty-one years of age and of sound mind. He added the abolition of capital punishment removed any reason for him not accepting a guilty plea to murder. The judge had no power to exercise any discretion, favourably or unfavourably, to Gary Findlay. He then formally imposed the sentence of penal servitude for life.
Gary Findlay served sixteen years before being released from gaol.
I do not know what changed the case so drastically. That observation is, perhaps, something of an understatement. I do not know to this day whether, or how, Mr Findlay’s instructions changed. Nor was I entitled to know.
CHAPTER
8
Peter Schneidas—A Wasted Life
Peter Schneidas was a highly intelligent young man born to Lithuanian parents in 1957. He was a complex character who had a disturbed childhood, but there was no hint of violence in his personality. While still a teenager he had the misfortune to receive a three-year gaol sentence for false
pretences. Dishonesty: a white collar crime. No hint of violence. Schneidas thought, with some justification, that the sentence was too severe. It was his first offence and while a custodial sentence is always likely, in this circumstance the judge had the discretion of suspending the sentence as a deterrent. As it is often said in Monopoly, ‘Do not pass go, do not collect $200, go straight to gaol.’ And he did. Because of this, you could say Schneidas had a chip on his shoulder.
His disrespectful behaviour soon found him not on a prison farm but in the feared Parramatta Gaol, a maximum security prison located in Sydney’s western suburbs. Again, not the situation a first-time offender should be experiencing. Inside its tall, weathered, sandstone walls, the gaol boasted the dreaded ‘Circle’, a place of solitary confinement that unsettled even the hardest criminal.
Not coping at all well with gaol, Schneidas displeased the warders and was in constant dispute with fellow prisoners. Neither of those states of affairs is a good idea. Combined, they make prison life much worse than the terrible environment it already is, particularly for a teenage first-timer.
Schneidas’s life was already on a downhill spiral, but worse was yet to come. On 17 May 1978, he received a ten-year sentence for assaulting a warder, not with his fist, but with an iron bar. Rarely does a friendship of any description, exist between warders and their clientele. And fair enough. But a ‘client’ who has bashed a warder with an iron bar is well and truly down the scale in popularity with all custodial staff. Rapidly Schneidas had gone from a first-time, short-term prisoner to a long-termer with all the anguish that entails.
Schneidas was moved from prison to prison, a practice common in the correctional system. He spent time at Grafton Gaol, a maximum security facility and was labelled an ‘intractable’. Grafton would earn a brutal reputation for its treatment of ‘tracs’, as they were known: inmates given such a label endured sanctioned violence and solitary confinement, intended to to correct and control their behaviour. After Grafton, Schneidas was relocated to Katingal, a modern maximum security prison inside the Long Bay complex. It would be referred to by the 1978 Nagle Royal Commission into New South Wales Prisons as an ‘electronic zoo’.
Katingal had opened in 1975 and housed some of the state’s most notorious prisoners. It closed in 1979. Twenty-seven years later, the guilty state destroyed the evidence through its demolition. Journalist Stephen Gibbs, writing for the Sydney Morning Herald on 20 March 2006, described Katingal as ‘solitary confinement in a concrete coffin without natural light or air’. Compared with Grafton, Katingal was a subtle form of barbarism. For most prisoners, being locked up for the night allows a numbing loneliness to set in. That is relieved next morning with the muster and being let into the exercise yards. The real vice of the isolation of Katingal was that the loneliness and boredom was largely unrelieved. Sharing a small cell, and they all are small, is known as going ‘two out’. That never happened at Katingal; only one to a cell there. The individual cells were cramped, windowless and sterile. Rape, assault or murder in prison is often the result of sharing a cell. Katingal residents were, at least, safe from that happening.
Katingal was at maximum capacity when housing forty inmates. The whole complex was air conditioned and artificially lit, which added to its feeling of weird unreality. As a security measure, the sense of isolation was accentuated by the door being made of iron with a hatch to pass in food. The cell mirror was of polished metal fixed to the wall. Staff could observe prisoners at any time through a concealed spy hole. Mail was photocopied before being distributed, supposedly to prevent drugs such as LSD being impregnated in the paper. Legal visits were always in a no-contact area.
Katingal has a curious place in penal history. It only ever had one escapee, bank robber and career criminal called Russell ‘Mad Dog’ Cox. He was on the run for eleven years. At his trial for the escape, Cox ran the novel defence that Katingal was not a prison under the Prisons Act 1952. It was argued Katingal had not been properly gazetted, meaning the government had not officially designated the institution as a prison. According to Cox, therefore, how could he be on trial for escaping a prison when it wasn’t a prison?
Interestingly, Russell Cox came before me for mention only on this matter prior to his trial when I was a judge on the District Court at the Downing Centre in Sydney. I observed in passing that I thought the argument was ‘stupid’ and left it at that. I have never understood that legal argument—Katingal was obviously a prison inside a prison. I visited Katingal a handful of times; two visits were after it had closed and was being used as a storeroom. Even then, as with my initial visits, the place held a morbid fascination. Katingal certainly instilled a sense of fear within me, even though I knew I could walk out and go home.
At his trial, Cox’s defence counsel, headed by the very clever John Nicholson SC, succeeded with that argument. The jury were directed by the judge to find Cox not guilty. Cox was eventually released on parole on 7 December 2004. As far as I know he never offended again.
* * *
Perhaps Peter Schneidas was Katingal’s most difficult inmate. During his time there he was equally unpopular with fellow prisoners and staff, an unusual status. The months passed slowly for him. Despite being in the worst of prisons, he kept his head down and coped as best he could. Within the prison system, keeping out of trouble earns prisoners little reward. Yet it was while he was at Long Bay that Schneidas was rewarded with being a sweeper—one of a number of trusted positions a prisoner can attain through good behaviour—in the notorious Observation Section, or OBS as it was known among the custodial staff.
The OBS and Katingal were at opposite ends of a spectrum, ranging from Victorian primitiveness to modern technology. Prisons are unpleasant places, but the OBS was an absolute disgrace. To explain, inside the Long Bay Complex there are four prisons. Each prison is designed to house different types of prisoners, from violent offenders and those needing segregation, to those on remand and awaiting trial. As you enter Long Bay, the Central Industrial Prison is the one closest to the main gate, and is where the OBS was situated, fenced and cut off from the rest of the complex. The OBS was designed for inmates with psychiatric problems, or otherwise perceived to be at risk. It also served as ‘death row’ when capital punishment existed in New South Wales. When Schneidas worked there, some of the prisoners were violent, others docile, while others were just heavily sedated. The exercise yard was a cramped caged area with no room or facilities for recreation. There was no shelter from the elements, be it extreme heat or drenching rain. Prisoners spent the day there, the bleakness only relieved when they returned to their cells for the night, early in the mid-afternoon. Not all cells were sewered. In short, the OBS was an inhumane hellhole.
On 10 August 1979, as Peter Schneidas performed his sweeping role as a ‘trusty’, a young correctional officer, Mr John Mewburn, was patrolling the OBS. He was alone and unarmed. What, if anything, provoked the attack on Mr Mewburn is unknown, but he was struck repeatedly in the head with a claw hammer. Fellow officers and medical staff did what they could to save his life, but he died shortly after being rushed to Prince Henry Hospital. The finger was pointed at Schneidas and he was charged with the murder of this popular officer, husband and father.
Given the brutal, senseless slaying of Mr Mewburn, resentment of Schneidas by other officers was understandable. For his safety, Schneidas was moved to Goulburn Gaol, in southwest regional New South Wales. I was briefed to appear for him and travelled to Goulburn Gaol for the first of many conferences.
Goulburn Gaol was the harsh, forbidding Victorian fortress it remains to this very day. Interviewing Peter Schneidas was a grim experience. For our conference, my instructing solicitor and I were deliberately ushered into a remote and unsupervised area, which bothered me a little—after all, Schneidas had been charged with the murder of a prison officer. Our safety, however, didn’t seem to overly trouble the custodial staff all that much. At the first meeting, Schneidas produced a tape recorder.
When I demurred, he reluctantly agreed. After all, this was under lawyer–client privilege, and written notes would suffice. In those days, police didn’t even contemplate using a cheap tape recorder when interviewing suspects. Schneidas was ahead of his time.
Schneidas’s instructions were that he was innocent of the charge. After our conference, he was moved to the ultra severe and punitive punishment section of Goulburn Gaol. He asked me to look at his surroundings to understand the cruelty of his treatment. The staff allowed me to do so. His confinement was harsh and cruel. There was no violence because, by day, each prisoner was kept in isolation with no privacy, watched through the iron-grille ceiling, which was also the floor of the observation area. The prisoner was confined to this space and could only pace up and down to exercise. A zoo that caged animals in this fashion would be condemned by right thinking people.
During my preparation for the trial, I visited the notorious OBS at Long Bay. It was frightening to me just being in the area as a visitor when I went to view the scene of the murder. It was a dangerous and unpredictable environment, a chilling place. As the fate of poor Mr Mewburn testified, it was dangerous for both staff and prisoners.
As the death occurred at Long Bay, it was logical for the trial to be held at Darlinghurst. There was one catch: prison staff refused to hold Schneidas in a metropolitan gaol. If his trial were to be held there it would have been necessary for officers to drive him back and forth to Goulburn each day. This was not only impracticable but unfair to Schneidas. A fair trial under those conditions was impossible. The judge in charge of listing, Justice David Hunt, was sympathetic but unable to assist.
The warders’ union effectively moved the trial to the less favourable venue of Goulburn. The brutal tragedy which caused Mr Mewburn’s death was at Long Bay and had no connection at all with Goulburn. If there were justification to change the venue it was the sole prerogative of the Supreme Court to do so, not the trade union. The intransigence of the warders was utterly indefensible. Sworn to uphold the law, they were arrogantly subverting it. The new chairman of the Department of Corrective Services was prominent academic Dr Tony Vinson. His administration was efficient yet humane. So concerned was Dr Vinson with Schneidas’s case he attended some of the hearings where I sought to have Schneidas’s rights upheld. It was a battle in vain. Dr Vinson recognised the grave injustice being done to Schneidas but, like the judge, he was powerless in the face of trade union militancy.
Justice Denied Page 13