Justice Denied

by John Suter Linton

  My instructing solicitor was Greg Drake, who himself later became a successful barrister. He drove us there in his ancient Holden, which had seen better days. The radio aerial was a twisted wire coat hanger. We made it to the scene of the view, but were blocked by an officious young policeman. He informed us, peremptorily, the road was closed and chided us, if that be the correct word, for not obeying the ‘road closed’ sign back nearer the highway. Greg Drake politely dissented. I remained silent. Rare for me, some would be unkind enough to say. The policeman enquired as to who we thought we were, or words to that effect. Mr Drake alighted, drew himself up to his full six-foot-two-inch stature and said imperiously, ‘Constable, I am driving senior counsel for Michael Murphy.’ The constable then smartly saluted, more out of uneasiness, and waved us through to join the legal cavalcade. Michael Murphy had not achieved much other than heartbreak and tears since his childhood, so it was ironic that the announcement he was our client moved the western Sydney constabulary when Greg Drake’s battered limousine could not.

  As part of our preparation of the case, Greg Drake and I had already inspected the paddock but we attended the viewing to ensure there was no irregularity involving the jury. Away from the court complex, the possibility is ever present of something going wrong, such as a bystander communicating with a juror to the prejudice of the accused.

  At the paddock, there was a light mist of rain and a low fog. It lent an air of eeriness to the tragic scene. The rural tranquillity disturbed only by the occasional lowing of a cow struck a discordant note, as we remembered the violence done there so recently, which had brought us all together.

  * * *

  The trial had lasted three long months. During the course of his summing up, Justice Maxwell said to the jury in a context of reproach:

  … however, I should also remind you that the attack by the accused on the conduct of the police has also been stark and dramatic. You have had delivered to you in the address of Mr Hosking of Queen’s Counsel and to a lesser degree Mr Mulligan and Mr Bleasel an unbridled attack on the police generally, but more particularly the police officers connected with the investigation of these offences. May I quote some of the allegations that have been put to you: Tearing up the rule of law; Grotesque submission, Obtained by torture; Return to the law of the jungle; Makes a sham and a farce of statements; There has admittedly been violence; Broken on the wheel of police brutality; Trial in a police station – and possibly the worst, ‘broken on the wheel of police brutality’.

  Mr Mulligan referred to the police activities as being similar to that which occurred when the military took over in Fiji. He also suggested to you that the unusual modus operandi of the interrogator is to be applied to these police, as far as Mr Mulligan’s client is concerned, namely that they are cruel and they are nice and he even went on to recall your memory of events out of the last war and, I assume, he meant to refer to the conduct of the Gestapo.

  Unfortunately, it was His Honour who introduced the prejudicial idea of that despised outfit, the Gestapo. Interrogations were commonplace for both Allied and Axis forces. Sadly, the judge could only think of the Gestapo.

  In my early days at the Bar in the seventies, ‘stark’ attacks on police truthfulness were not a happy assignment. Sometimes judicial disapproval was barely hidden. Formulas were designed in a bid to calm the atmosphere and avoid the disapproval of the Crown prosecutor and sometimes the judge. They never worked. The enormity of the inherent allegation was always ruthlessly exposed by them, but with no right of reply. Accordingly, in such a case not calling a spade a shovel became necessary. Sometimes it worked, sometimes it didn’t. Either way, the issues were defined in plain English for the jury. That is precisely what Bleasel, Mulligan and I were endeavouring to do in the much quoted passage from Justice Maxwell’s three hundred–plus pages summing up. For his part, Sandy Wetmore more than did his duty.

  Unlike the Local—formerly known as Court of Petty Sessions—and District Courts, sound recording was not used in the Supreme Court. Relays of expert shorthand writers recorded the evidence and then dictated the record to typists. Daily transcripts were thus available. Counsel’s addresses were not recorded, but every word of the judge’s summing up was. Strangely, in the event of an appeal, the judge’s summing up is always submitted to them for ‘revision’. Why? If any mistakes have been made it is surely far too late to then correct them. It seemed my address, or parts of it, were recorded by the judge himself, which he then quoted from in his summing up. If anything I had put was wrong or, worse still, improper, such an experienced judge would have immediately interrupted me to set matters right. Alternatively, or additionally, Mr Saunders QC could have interrupted by way of objection. Alan Saunders QC was anything but a timid opponent. One wonders why Justice Maxwell troubled to record my address and, if it was wrong, highlight it as he did by reminding the jury of it verbatim, uncorrected and unendorsed.

  Yes, it was pretty robust stuff. But my clients’ case had to be put by me as his counsel. The verbiage chosen in the heat of battle is now preserved in legal history. Timidity in putting a client’s case is easier, but surely not preferable.

  From the first day, this had been a turbulent and tense trial. Since the shock of Mr Haines’s phone call, I had not allowed self-interest to cloud my clear duty and professionalism. Then, in circumstances beyond my control, there was the need to resolve a difference between the judge and me over my client’s demeanour during his summing up. The judge departed from his typed notes and accused Michael Murphy of ‘smirking’ when he was describing Ms Cobby’s injuries. Murphy denied it and I felt obliged to ask the judge to withdraw the remark. This provoked a measure of turbulence, which was seized upon by the press. To put it mildly, this was an awkward moment for me. I feared that even the perception of any intemperate conduct in such an unpopular cause could well derail the Attorney-General’s decision to appoint me as judge, or defer it, perhaps forever.

  The effect of such an observation by the trial judge, particularly as my client, for what his word was worth, denied it, was so gravely prejudicial I believed I had no alternative but to protest courteously. Failure to do so would have been grossly unfair to my client and a clear dereliction of counsel’s duty. Justice Maxwell, thankfully, had a strong sense of justice and propriety. He withdrew the remark; a gracious closure, given it does not need a powerful imagination to work out whose version the world would prefer out of Michael Murphy and a distinguished Supreme Court judge.

  This did not stop the Court of Criminal Appeal later making an oblique criticism of me, noting my back would have been to the dock, and therefore the accused, at the time. That is simply not the case. In No. 5 Court at Darlinghurst the bar table is at right angles to the dock and the Bench and facing the jury box. In any event, the application was made on the basis of urgent contemporaneous instructions given to me by my client from the dock, via my solicitor Greg Drake. I was, as I had been throughout the trial, acting on instructions from my client. My own opinion played no part in making the request.

  The inscrutability and confidentiality of the jury room shields the tenor of their deliberations. They were instructed by the judge to banish prejudice and, to use the words of the juror’s oath, to ‘well and truly try and true deliverance make’. Pre-judgment and prejudice would have brought swift verdicts. The jury deliberated all day and were locked up in a secret location overnight to continue their deliberations. They were obviously conscientious and, from time to time, sought Justice Maxwell’s help. All communications were proper and in open court in the presence of the accused.

  First thing next morning, all accused were convicted on all counts.

  * * *

  At this stage you’d think the court battles would be over: the verdict was in and all we had to do was await the sentence, which seemed pretty predictable. But there was a shock awaiting Leigh Johnson, Sandy Wetmore’s dedicated instructing solicitor. In a trial marked with constant tension and clashes at the
bar table, there was no tenser moment than when Alan Saunders QC rose and asked Justice Maxwell to cite Leigh Johnson for contempt of court. Contempt of court is very serious. It can result in a gaol sentence, a heavy fine or even striking off the roll of legal practitioners. Leigh Johnson was a rising young solicitor with a soft spot for the underdog. She was instructing the able Mr Wetmore in this trial on a legal aid assignment. Had Ms Johnson criticised Mr Saunders, the police or, worse still, the judge himself? No, she had, after verdict, made a critical comment about the press, which it picked up. It seems, in answer to questions outside court, she had complained about what she perceived to be press bias.

  Like the rest of us, the press are not perfect. They make mistakes. An example of press error was the publication, on day one, of my client’s criminal record in The Sun newspaper.

  Leigh Johnson’s ‘contempt’ was blown out of all proportion for an inexperienced young solicitor. The comment was not made at a press conference. The media are hardly shrinking violets, too shy to thrust microphones and questions at participants outside court after a dramatic event inside.

  Justice Maxwell promptly referred the issue to the authorities. Leigh Johnson survived and, over the years, built a reputation for accepting this and many other unfashionable legal aid cases.

  * * *

  The morning for the sentencing had arrived. At ten am there was a slight delay as Anita Cobby’s parents were not in court. When they arrived, all that remained was the formal ritual of judgement. Everyone in court thought they knew the result: life. Even so, there still was the possibility that release one day would not be excluded. Personally, I wondered if a future government would ever be brave enough to give any of the five an opportunity for release, however deserving. It would be, I thought, decades away before such a decision would have to made.

  The judge entered and was seated. Then the five accused, together for the first time since the first day of the trial, were brought up into the dock. There were police everywhere. The atmosphere in the courtroom was one of unprecedented tension. So high was the emotion, at one stage, the experienced, calm and respected judge, Justice Maxwell, was moved to tears. The press recorded him stopping with tears in his eyes and drinking a glass of water before resuming his remarks. Defence counsel had faced a hopeless task in securing a calm, detached hearing from the jury, but I had never seen a judge so upset before. When Justice Maxwell formally passed the sentences, ‘penal servitude for life’, the dignity of the Central Criminal Court gave way to wild scenes, and uniformed sheriffs struggled perfunctorily to restore order. The court had momentarily descended into unseemly uproar. In addition, Justice Maxwell specified and passed upon each of the five the following sentences: kidnapping, sixteen years; robbery with wounding, seventeen years; maliciously inflict bodily harm with intent to have sexual intercourse, twelve years; and theft of a motor vehicle, five years. To put it bluntly, the long concurrent sentences imposed were purely academic gestures.

  Justice Maxwell concluded with these words: ‘The circumstances of these prisoners and the circumstances of the murder of Anita Lorraine Cobby prompt me to recommend that the official files of each prisoner should be clearly marked, “Never to be released”.’

  Justice Maxwell acidly observed any future plea for mercy by the five should receive the same level of mercy which they showed Ms Cobby that fateful night.

  No one had expected this bombshell. Not even the hardline Crown Prosecutor had asked for it. The judge then added more gratuitous, emotive remarks designed to influence authorities long into the future. As the law then stood, it was wrong for the judge to do so. It would be misleading to suggest this directive by the respected judge was greeted with anything other than overwhelming community approval. But that is not the test. Calm judgement is.

  Then came a sombre The Sun newspaper front-page headline, JAILED FOREVER. The article quoted the vastly experienced Justice Maxwell’s statement that this crime ranked with the worst he had encountered in his forty years with the law. Sadly, this was undoubtedly true. On reflection, there is perhaps little value in seeking to classify murders. Each has one awful feature in common: a valuable, innocent life has been needlessly and irrevocably taken. Except in cases of domestic violence, there are seldom any mitigating factors.

  There was no opportunity given to the Crown or defence to make submissions on the judge’s shock intention to add ‘never to be released’. There are all sorts of arguments which could have been advanced if we had not been ambushed. After the resultant gallery uproar, the trapdoor in the floor of the dock was opened by uniformed guards and the five stumbled down the steep wooden steps to the cells below and returned to prison. This would be their last time in a non-gaol environment not just for decades but, now, forever. The order was punitive and popular, but not logical. Fitness for eventual release, or indeterminate detention, is decided, if ever release is considered, decades down the track. Certainly not at the time of sentence.

  It is a fundamental principle of the criminal law that a prisoner, however reviled, is entitled to be heard before any order affecting their liberty is made. It was simply not done in this case. It is no answer to the criticism to say, in all probability, the judge would have added the rider in any event. Nor does the fact that the words ‘never to be released’ were highly popular with the media and public make it right.

  In 1987, a life sentence did not automatically mean spending the rest of one’s life in gaol until death. A life sentence guaranteed gaol, then lifelong supervision and sanctions and help. Fourteen years later, in 2001, New South Wales Parliament legislated to provide that a life sentence could mean that only death in gaol would see the completion of the sentence. This was claimed to be an advancement on the Sentencing Act 1989—truth in sentencing. In 2015, the fluctuating New South Wales gaol population was roughly around the 12,000 mark. There were fifty-one ‘lifers’ according to an article in the Daily Telegraph on 29 July. Only a handful of those fifty-one were post-2001 ‘die in gaol’ lifers.

  As was my custom, I went down to the cells with Greg Drake after the sentencing drama and uproar and advised Michael Murphy of his rights of appeal. I also told him other counsel would now be briefed to advise him in that regard. I did not tell him why. He expressed his thanks for my efforts over the past year and remarked, quite genuinely, he could not imagine what would have happened to him if he had not had the benefit of my professional services. Given, minutes before, he had been sentenced to penal servitude for life, with a gratuitous order he never be released, one hesitates to speculate what he meant.

  * * *

  The challenge of the Crown’s assertion of common purpose by me was not legal fantasyland. Peter Hidden QC, leading Virginia Bell, both Public Defenders, argued its importance on appeal. Mr Hidden QC had just been appointed Senior Public Defender and was on his way to the Supreme Court bench. Virginia Bell outdid her leader in two ways. After taking silk, she was elevated to the Court of Appeal and then to the High Court of Australia.

  Although I had left their chambers by the time the appeal was heard, I feel I may still claim, with some pride, their participation was one of the Public Defenders’ finest hours. It was a most difficult case and two of the finest lawyers, not only in the state of New South Wales but the nation, gave it their utmost. It was an unmatched legal quinella of learning, talent and commitment.

  The ‘never to be released’ order was a forensic ambush by Justice Maxwell. He, at that time, had no power to make it. It came completely without warning and, more importantly, denied the prisoners the opportunity to call evidence or make submissions to prevent it. Also of note is the absence of any specific endorsement of that order by the Court of Criminal Appeal in its detailed 81-page judgement when dismissing the prisoners’ appeals.

  After hearing argument on each ground of appeal, the presiding judge, Chief Justice Sir Laurence Street, conferred with his brother judges, Justices David Yeldham and Mervyn Finlay, and then progressively deliv
ered lucid, eloquent ex tempore judgements at the end of argument on each ground. The other judges agreed with the Chief Justice each time. This process continued with each ground of appeal until a conclusion was reached. It was an intellectual masterpiece, with the only uncorrected error being that relating to Leslie Murphy alone and his mental incapacity, which won him a new trial by order of the High Court.

  * * *

  Leslie Murphy was granted a new trial, but his success was short lived. The retrial took place before Justice Jeremy Badgery-Parker. Murphy was again convicted and sentenced to penal servitude for life—this time without the gratuitous ‘never to be released’ rider. The request it be added, which Alan Saunders QC made, notably for the first time, was rejected by Justice Badgery-Parker.

  Plainly Mr Saunders QC had adopted Justice Maxwell’s stern sanction between trials. Justice Badgery-Parker, however, was unpersuaded. Leslie Murphy, therefore, is the only one of the five with his prison file not marked ‘never to be released’. Surely this must permit a flicker of light for him at the end of the metaphorical tunnel.

  Even if always a ‘lifer’, Leslie Murphy might earn an occasional extra hour out of his cell in the sunshine, or another small privilege. None will ever minimise the gravity of the conduct which landed him and his disastrous brothers in gaol in the first place.

  Due to a serious error made by Justice Maxwell, which the Court of Criminal Appeal noted but did not correct, the High Court ordered for Murphy a new trial. Justice Maxwell had made a mistake in excluding, from the jury, evidence of Leslie Murphy’s mental retardation. Even good judges are not infallible. The evidence, which he wrongly rejected, went to the jury’s acceptance or otherwise of Leslie Murphy’s disputed police record of interview and, thus, his involvement in the murder. The Court of Criminal Appeal accepted this was a wrong ruling, but declined to correct it.