Angelo Maric’s ordeal was over, but he would recover slowly from the wasted and torturous years in gaol, during all of which he never lost hope. Maric was thirty-five years old when he walked out of court that November morn. He was born in 1944 and died peacefully on 3 July 2015, at age seventy. He left behind a wife, two children and five grandchildren. I only hope the remaining thirty-five years of Maric’s life were filled with great love and happiness. Reading his obituary, I believe this was so.
CHAPTER
13
Anita Cobby—An Unfailing Test of Civilisation
Appearing at the 1987 Anita Cobby trial was to be my last appearance as defence counsel. I did not volunteer. At this time I had been elevated to Deputy Senior Public Defender and was chosen by legal aid chief, Ron Newham, to be briefed to appear. Legal aid was granted to all five accused. It was a sound decision, if not a popular one. The entitlement to legal aid for those too poor to afford it, and nowadays that is almost everybody, is an entitlement based on the foundation of our criminal justice system of the presumption of innocence. That presumption exists unless, and until, it is removed by proof of guilt beyond all reasonable doubt. Without legal representation the eventual trial of the accused would have been a travesty. Punishment of the guilty or clearing the innocent always require decisions on substantial issues of fact and law. In their own way the police, the courts and the community, through the jury system, all conscientiously combined to bring finality and justice to all and, most importantly, to nurse Anita Cobby and her family and friends.
Before I begin telling of my involvement in the trial, I’d like to make a few observations concerning sentencing and justice. In 1987, and for a very long time prior, judges had a wide discretion in deciding sentences they could impose on those proven guilty. As you would have noticed in previous chapters, prisoners rarely served the full length of their sentence for various reasons, such as early release on parole or licence because of good behaviour. That has now stopped. The New South Wales government introduced its Sentencing Act 1989, which became known as ‘truth in sentencing’. This means prisoners now serve whatever sentence is handed down, which includes a predetermined period where parole can be granted. Gone are the days of earlier release earned by remissions for good behaviour, which, in my opinion, is a retrograde step. Modest rewards for good behaviour and punishment for bad are surely basic penology? Also, since 1989, should anyone be given a life sentence, it means just that: the prisoner will die in prison.
Justice David Hunt was a great judge of the last century and delivered many wise and scholarly judgements. Such was his international reputation, he served as a judge for three years on the United Nations War Crimes Tribunal at The Hague. Justice David Hunt said these words during one of his sentencing hearings:
In the Old Testament, in the second Book of Moses called Exodus, the author laid down the law concerning acts of violence in these terms:
‘And if any mischief follow, then thou shalt give life for life,
Eye for eye, tooth for tooth, hand for hand, foot for foot,
Burning for burning, wound for wound, stripe for stripe.’
It is, as I say, an understandable desire on the part of the victim or those whom he or she leaves behind to have the Law of Moses applied. But we now live in a civilized community. Winston Churchill, during a debate in the [UK] House of Commons in 1910 said this: ‘The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.’
A civilized country does not act in the way that Moses laid down. Capital punishment has been abolished and, except in extraordinary circumstances, which do not exist in this case, the law does not regard itself as permitting a slower and more painful death by locking away the murderer and throwing away the key.
When he spoke those words, Justice Hunt’s apparent confidence there would be no such future legislation turned out to be misplaced.
It is interesting to note, of the eight biblical punishments laid down in Exodus, only capital punishment survives in civilised countries today, and in very few of those. Australia is no longer one of them. Today, with the judge invested with a specific legislative discretion, which enables them to throw away the key, there is a sentencing hearing with statutory questions to be determined and reasons given justifying that most extreme of steps. Judges apply the law as it stands, not make it. In New South Wales, a person serving life has received the ultimate in punishment, which is utterly devoid of mercy or hope.
* * *
The tragedy that would shock the whole of Australia began just before ten pm on 2 February 1986. Registered nurse, 26-year-old Anita Cobby, had been having dinner with friends after finishing her shift at Sydney Hospital on Macquarie Street, next to State Parliament House in the city. She caught the 9.12 pm train to Blacktown in outer western Sydney to her parents’ home, where she was living after recently separating from her husband. On arrival at Blacktown Station just before ten, she went to find a phone to call her father. The usual routine was for Ms Cobby to phone her father, Gary Lynch, to collect her by car. This was well before mobile phones and, unfortunately, the public phone at the station had been vandalised, so Ms Cobby decided to walk home. As she did, an HT Holden Kingswood slowed beside her and stopped. Two of the five male occupants jumped out and grabbed her, pulling her into the car as she screamed. Anita Cobby was then robbed, bashed, raped and tortured before having her throat cut. So severe was the cut, it almost left her decapitated. Her bloodied, naked body was left in a secluded cow paddock at Prospect, not far from Blacktown, and was not discovered for two days.
Everyone in the car that dreadful night had a passport to doom. None more so than poor Ms Cobby.
When Ms Cobby’s body was found, the New South Wales government posted a $50,000 reward for any information leading to an arrest. In the hope of jogging memories, a policewoman dressed as Ms Cobby travelled on the 9.12 pm train to Blacktown while her colleagues interviewed passengers. Anita Cobby’s murder was front-page news. Gruesome details of the offences and the harrowing atrocity gradually unfolded. Understandably, the community, indeed the whole of Australia, was outraged. Even the police involved in the investigation were deeply affected. Led by Detective Sergeant Ian Kennedy, a top detective of his day, it took police just under three weeks to track down, arrest and charge five individuals with the murder. They were nineteen-year-olds John Travers and Michael Murdoch, and the Murphy brothers, 33-year-old Michael, 28-year-old Gary and 22-year-old Leslie. The five were hated and reviled by the community. They all came from deprived backgrounds and were of below-average intelligence. They were petty criminals accused of a major crime. I was briefed to appear for Michael Murphy.
Given the dreadful nature of the crime, the atmosphere in the community following the arrest of Ms Cobby’s alleged killers was one of brooding malevolence. It manifested at the first formal court appearance of the five accused at the tiny Westmead Coroner’s Court.
Opened in 1984, Westmead Coroner’s Court was brand new and located inside the grounds of the huge Westmead Hospital complex. Uniformed police were present in large numbers in case of trouble. Ominously, a dummy dangled from a noose tied to a tree branch. A large crowd had gathered. Some held up placards calling for the restoration of the death penalty. Showing solidarity with Ms Cobby, uniformed nurses were prominent. The magistrate was the city coroner, Derrick Hand. Formalities were short and Mr Hand promptly fixed the committal proceedings for the more secure surroundings of the Coroner’s Court on Parramatta Road at Glebe.
As the prison van edged out of the Westmead Hospital, the crowd surged forwards. They banged on the sides of the van and booed and catcalled. Attempting to defuse a nasty situation, someone called out, ‘Ladies, ladies, the police are only doing their job.’ The crowd’s anger was not directed towards the police. It was clear the chances of finding a sympathetic jury in the Sydney metropolitan area—or the world—were zero
, and chances of finding a cool and impartial one were slight.
Before the advent of the Public Solicitor and legal aid, the unrepresented accused standing trial was at a tremendous disadvantage. Even an old lag did not know the intricacies of procedure or evidence, nor even the possible options in presenting their defence. In this situation, the judge is obliged to tender advice. Of course, that was not done in a cosy fireside chat scenario, but in a terse, prescribed, formal fashion in open court. An accused could always elect to appear for themselves. As the legal cliché goes, an accused who prefers to appear for himself has a fool for a client.
The role of counsel for the accused in any criminal trial can be controversial, particularly where there has been a grave crime. Defence counsel has a duty to act for his or her client with vigour, but also with ethical propriety. There is a popular misconception that a true defence counsel must believe in the client’s innocence. Nothing can be further from the truth. A competent and vigorous defence is essential to a fair trial. The personal belief of counsel is irrelevant. The lawyers’ duty is to argue, firmly, the case of their clients and not to express a personal opinion. Often, this is forgotten by the public. The so-called ‘cab rank’ principle simply restates the rule that barristers do not choose their clients. If it were the other way around, despised causes and hated accused would be denied an experienced, professional voice. Fearless independence for barristers is fundamental. Even more so where there is a Public Defender involved who holds that independent statutory office with all its privileges and its responsibilities.
* * *
In seeking the convictions of the five men, the Crown relied upon the legal doctrine of common purpose. To explain common purpose, judges use an example of two would-be bank robbers. One drives the getaway car, while the other enters the bank and demands cash of the teller using a replica pistol. The teller refuses and is then shot. It turns out the pistol was not a replica. Both men are charged with murder although the driver has never left the car. There follows disputed questions of fact and law. First of all, was there an agreement to use a replica and not a real pistol? The answer could be decisive in determining the driver’s level of criminal responsibility. Likewise, did the driver know his accomplice well enough to reasonably expect him to bring a real pistol and use it? In other words, you can still be guilty of murder if you have never set eyes on the victim let alone wanted them to be killed.
The defence of each of the accused in the Anita Cobby case was that Travers alone had the knife. Travers alone stabbed Ms Cobby. He alone was to blame for her death. The Crown case was, irrespective of what each actually did that night, all were equally responsible for her death and each was guilty of murder. Because each knew what Travers was likely to do, therefore all were equally culpable under common purpose. For the Crown, this was true as a matter of law and, equally compellingly, as a matter of fact and commonsense. Even so, questions remained as to the extent of each accused’s personal involvement. In that respect, their signed confessions were the Crown’s trump cards.
The defence claimed the confessions were obtained improperly and by force. To present the client’s case, those allegations had to be put. They were all denied by the police. Mere presence that night in the car, then the cow paddock, leaving aside what each offender himself did, was a matter of the gravest wickedness. The law, through the courts, had the task of determining the degree of culpability using rules which have evolved over centuries and long before 1788 and the arrival of the First Fleet, carrying with it the ‘invisible cargo’ of the common law.
The line of defence which emerged was, even accepting the Crown case, the worst that could be sheeted home to Murdoch and the Murphys for the death, in terms of legal liability, was the crime of manslaughter. That line of reasoning was barely intellectually respectable but, nonetheless, required a competent presentation to the jury. Was only Travers accountable for murder and one or more of the remaining four only guilty of manslaughter? This had to be considered calmly and unemotionally and, I have to tell you, on these facts it was not an easy task, even for an experienced defence counsel like me. That initial question was limited, of course, to the homicide, not the rape and sexual brutality. My difficult role was to seek to protect the interests of Michael Murphy.
* * *
On 16 March 1987 when the trial began in historic No. 5 Court at Darlinghurst, the Central Criminal Court, the bar table was crowded with five, sometimes six, robed barristers and their instructing solicitors for what the press soon described as the ‘trial of the century’.
Closest to the judge, with his own lectern, was the grim, unsmiling Crown Prosecutor, Alan ‘Slipper’ Saunders QC. The origin of the soubriquet ‘Slipper’ is lost in the mists of time. It was definitely not derived from being a soft and comfortable opponent. The Crown had no better or more able advocate. He dominated the bar table with his reputation, experience and sheer forensic skill. We had been regular opponents over the years. I didn’t like him. He didn’t like me.
The rest of the cast at the bar table is best described by top Sydney journalist, Julia Sheppard, in her book Someone Else’s Daughter, The Life and Death of Anita Cobby. I take the liberty of setting out, verbatim, two paragraphs of the book describing the rest of us. I believe she erred on the side of charity.
David Wetmore, representing Gary Murphy, was known as ‘Sandy’. His long fair hair blended most perfectly with his barrister’s wig. Without that wig and his robes, he didn’t look like a barrister, especially with the tiny diamond stud earring he wore. His broad Canadian accent would boom across the courtroom. He would subtly use his sense of humour to relieve the solemnity of the trial. Neck and neck in the good humour stakes was Michael Murphy’s barrister Bill Hosking, a QC and a totally different style of man to Sandy Wetmore. Hosking, always in a dark suit, would take to addressing the jury or a witness with his hands clasped in front of him in a choir boy grip. He had a round face, pale skin and could recite apt pieces of Shakespeare at any given time, always to the blank stares of the defendants. He knew his law and pushed it to the limit.
Marcus Bleasel, representing Michael Murdoch, was a tall, thin man with a neat beard with reddish highlights through it. In his 30s, he was younger than the other barristers around the bar table. Bradley Mulligan, Leslie Murphy’s counsel, was a personable-looking fellow. He was quiet and sometimes had a red complexion.
The bar table for the defence was a cross section of age, experience and styles.
The day’s proceedings always began with what became a ritual loud knock on the large oak door leading from the judge’s private chambers. Preceded by his tipstaff wearing a black frock coat and carrying a white staff topped with an elaborate gold crown, in came the judge. Not a tall man, he was resplendent, wearing the royal scarlet robes of a Supreme Court judge sitting in the court’s criminal jurisdiction. Justice Maxwell was the epitome of duty, courtesy and dignity.
The usually solemn atmosphere at Darlinghurst was absent the morning the trial began. A huge number of potential jurors milled around in front of the sandstone pillars, spilling over onto the lawns fronting Taylor Square and Oxford Street. Television crews seemed everywhere, as were radio network reporters. The press had their usual, reserved, prime seats on the judge’s left, facing the jury.
The police had done their duty. The magistrate, Mr Hand, his. Next, the Crown Prosecutor and his instructing solicitors were ready. The judge and the jury were now in place. Also present, in almost reviled solitude, were the lawyers all funded on the modest legal aid rates, except me, on the salary of a Public Defender. The others would only receive the extremely nominal legal aid fees of the time in accepting these briefs. Far from helping the four other barristers’ careers, or bank balances, appearing in this trial was a positively negative factor. There are no lawyers made rich on the meagre fees paid for by legal aid cases. It is done as a noble service by the profession.
The concept of legal aid itself seemed to be on trial. Legal
aid is effectively the post-war creation of the New South Wales McKell Labor government, ensuring the honest battler is not subsumed by the power of the state. I lost count of the number of friends and strangers who asked me ‘Why on earth would you accept a case like this?’ or ‘Do you enjoy it?’ There is a simple answer, apart from duty. There are many, many occupations and professions which are not only more unpleasant, but some are also very dangerous. There is the challenge of appearing in what you know is a losing brief for a particularly despised client. Particularly, where there is no real issue as to identity, and the crime is so harrowing and has such cruelty, there will be not a scintilla of public sympathy for your client. This was such a case. During it and afterwards I received considerable personal criticism for accepting the brief. Even my son, James, who was still at school, was criticised by other boys. They wanted to know why his father would appear in such a terrible case.
This trial clearly raised the question, does the community want symbolic or real representation for major criminals? Under our system the accused is not guilty until our grand, but still imperfect, system has run its full course. The spectacular miscarriages of justice staining our history highlights the still inherent dangers which arise through human fallibility. A major safeguard is that all court proceedings—with the rarest of exceptions—are open to the public and, perhaps more importantly, open to and subject to intense scrutiny by the media. There was certainly no absence of that for this trial.
In such a case, where there is justifiable community anger, counsel has at least two options. One can merely go through the motions to ensure it appears the formalities of a fair trial were observed. Alternatively, counsel does what he or she should do in every case. That is, to do one’s professional best for a client who would not have a clue what that involves.
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