Justice Denied
Page 25
The man was as arrogant as he was rich and he wanted to fight the notice. He wanted the best and he wanted Tony Bellanto QC, that very fine and experienced criminal lawyer, to be briefed. Mr Bellanto believed, rightly, his talents were better suited to more serious matters. Not wanting to offend the client with a simple no, he decided to price himself out of the job. He told the client it would cost him $1200—an outrageous sum for the time.
The client agreed.
Taking me on as his junior, Bellanto and I waited in the Pymble Hotel carpark early one cold, foggy morning in July. The offence had occurred in the lower Hunter, about a two-hour drive north of Sydney, in the town of Kurri Kurri. Our client offered to drive us up. Mr Bellanto had asked the client to bring along the offending tyre. He did. In fact, when he arrived, he opened the boot of his red, top-of-the-line Mercedes, to show us several tyres in varying stages of wear. ‘There you are, Mr Bellanto. Take your pick. Which one do you think would be best to use?’
Bellanto was offended and appalled and suggested we call it a day. Having come this far, however, he was persuaded to continue his representation. I was extremely thankful, as this one case meant I had earned enough to pay my chamber’s rent for the month.
Appearing at the Kurri Kurri Court House, our client pleaded guilty. Mr Bellanto delivered his usual tour de force in his speech in mitigation. The magistrate then decided not to record any conviction. Our client was ecstatic and overly thankful. He believed we had carried the day, but we knew better. It was very likely our client would have received the same outcome if he had chosen to be represented by the court’s duty solicitor. Still, a nice little earner, as they say.
* * *
The following anecdote continues to do the rounds of barristers’ chambers to this day, though it does become embellished with each retelling. Even so, any reputation I may have had as a barrister was never enhanced by what you are about to read.
When Justice Adrian Roden was a barrister, he and I got along well. Not friends, but well enough. Once he was elevated to the Bench, and I remained a barrister, something happened. Our professional relationship, for want of a better word, faded. To be fair, Justice Roden was a perfectionist and his advocacy technique as a barrister was precise and searching. As a judge he strived to achieve, from those who appeared before him, the same high professional standard. During sentencing proceedings, Justice Roden didn’t like hearing oratory from the barrister, nor did he rely just on the facts to determine what sentence to impose—he liked to hear from the client. Even then, it was rare for the judge to be impressed. Time and time again, the learned judge would reject the client’s evidence, including displays of remorse. He would impose a sentence based on his subjective assessment, which proved impregnable on appeal. In these circumstances my strategy was to rely on my client’s statements and avoid any interrogation by His Honour. It is, as I’ve stated before, never smart to antagonise any judge.
On this occasion I was defending a man who’d shot a young boy dead. He was initially charged with murder, but the Crown reviewed the facts and later offered a plea of manslaughter. My client accepted. In the sentencing context it was my opinion this was manslaughter at the lowest end by criminal negligence, not the more serious scenario of an unlawful and dangerous act. Not advising my client to take the stand was my first mistake in upsetting Justice Roden. As I put the facts of the case forward, His Honour frequently interrupted and corrected me. When I argued the incident was a misadventure, Justice Roden looked down at me and asked, ‘That may be, Mr Hosking. But a vital question remains. How does your client explain the events leading to this tragedy?’
I hung my head, thumbing through the transcripts of my client’s record of interview. These were my client’s words, accepted by the police and unchallenged. Obviously I was taking too long with my answer, because Justice Roden impatiently raised the question with me again. ‘Well, Mr Hosking? I suppose I must put the question in words even you can understand. How does your client explain why the gun was loaded?’
‘I don’t f***ing know.’
Justice Roden became flustered, understandably angry and threatened to discipline me unless I apologised and spoke respectfully.
I looked up and, with my finger digging into the page, explained, ‘“I don’t f***ing know.” This was answer forty-six in my client’s record of interview, Your Honour.’
Justice Roden severely sentenced my client which, thankfully, was overturned at appeal.
This encounter was brilliantly retold by journalist Malcolm Knox in his book Secrets of the Jury Room. The noted Victorian silk, Julian Burnside QC, quoted the ‘lively’ exchange in his review of Knox’s book. Maybe this had something to do with my being made a reserve judge in Victoria after my retirement?
* * *
There was another notable encounter with Justice Roden, which was retold at my swearing-in when I was appointed as a District Court Judge. The Solicitor-General, soon to be president of the Court of Appeal, Keith Mason AC QC, did the honours. He told of a time when I was, again at a sentencing hearing, presenting my client’s case for leniency, as Mr Mason put it, ‘in a way that was, no doubt, the closest to a silk purse that the particular sow’s ear would allow’. In any case, as I continued, my client suddenly started shouting profanities from the dock. I ignored the outbursts and went on with my submission. Of course, the swearing and volume increased and Justice Roden soon had had enough. He called for order and glared at me saying, ‘Mr Hosking, I think your client is trying to get your attention.’ I quickly and innocently replied, ‘My apologies Your Honour, I thought my client was addressing the Bench.’
* * *
Judges are sometimes portrayed by popular culture as living in an ivory tower and being devoid of humour and with little—or no—personality. Judge George Smith QC is a strong exception to this stereotype.
I remember when a sentence case of mine was called before Judge Smith. The facts and my client’s criminal antecedents were placed before the judge. As I rose to present the prisoner’s case, the judge said, ‘Yes, Mr Hosking this is, of course, a very tragic case.’
Encouraged by the judge’s sympathy for my client, I enthusiastically enquired, ‘Has Your Honour already read all the papers and reports?’
‘No,’ he replied, ‘I just thought all your cases were tragic ones.’ Clearly, I had my work cut out and needed to introduce more variety into my repertoire.
Another time, Judge George Smith interrupted the monotonous recitation of a long list of property stolen from a house. When the Crown Prosecutor read, ‘… and one clarinet,’ the judge interrupted, ‘I’ll stop you there, Mr Crown. I want you to know that anyone who steals a clarinet starts off a long way in front in my court.’ Perhaps His Honour had suffered having a noisy teenage neighbour.
During the same sentencing proceedings, pleading for his client, colourful Canadian-born barrister, David ‘Sandy’ Wetmore, who was appearing for the young burglar, announced with a flourish in his broad North American accent, ‘Your Honour, my client will take the stand.’
The judge dryly observed, ‘Well, I suppose that is fair enough, Mr Wetmore. He has taken just about everything else in New South Wales which was not nailed down.’
George Smith’s easy judicial style created an atmosphere conducive to justice. His occasional humour was never cruel or unkind.
Incidentally, Wetmore’s client received a three-year good behaviour bond.
* * *
To end, there’s a quote from The Honourable Justice Keith Mason AC QC which is very true of those serving in the judicial system. It reads: ‘At the end of the day, judges and lawyers find it impossible not to be themselves, more or less, both on and off the bench.’
ACKNOWLEDGEMENTS
This book would not have been possible without the assistance, encouragement and understanding of the following people. Thanks to Kaye Tanner (nee MacDougall) who gave me invaluable support in researching this book. She and I were secretari
es on the personal staff of The Hon Wal Fife when he was Minister for Mines in the Askin–Cutler New South Wales government. Her industry in researching the case of Mrs Dawson was outdone by her locating the transcript and newspaper articles for Chapter 2, ‘The Trial of Lady Chatterley’s Lover’. Then she proudly informed me that the judge was her uncle, Judge AG (Alec) Muir QC. He was also the judge in the trial of Chief Magistrate Murray Farquhar in which I also appeared, not as counsel but as a defence witness. That is not recalled in this book. To Des ‘The Ibis’ Andersen QC, whose support and inspiration saved my faltering career at the Bar from extinction. As did the late Judge Alan Viney QC who, in his solicitor days, sent me my first brief.
Also Alister Henskens SC MP, Member for Ku-ring-gai, who assisted me to gain access to Supreme Court records.
The Attorney-General for her permission to use official transcripts and law reports.
Dianne M Johnston of DMJ Business Services for her patience and skill in deciphering the hieroglyphics of the handwritten manuscript.
John Stewart, ABC television journalist.
Stephen Jupp, manager, Court Services and Prothonotary Supreme Court of New South Wales and the staff at the Armidale Heritage Centre for access to the Armidale Express coverage of the Colleen Dawson murder trial.
The distinguished Dr Angus M Cottee of Turramurra, without whose medical judgement and skills, in 2010 and again in 2012, the author would not have been available to produce this literary masterpiece.
To Selwa Anthony, for having the faith.
And finally to my only son, James, whose decision for our family to make that sad final trip to Boggabri in 2012 inspired this book.
INDEX
Aboriginal Legal Service 172, 181
Aboriginal people see Veen, Richard
accidents 261–263
Ackland, Richard 214
Adams, Michael 5, 187–189, 191, 197–198, 201, 203, 213–214, 260–263
Aickin, Keith 170
alcohol, legal responsibility and 55–56
alibis see Maric, Angelo
Alister, Paul 185–187, 189–193, 196–197, 203–205, 207–208, 213–214
Allen, Paul Anthony 154–157
Ananda Marga case vii–ix, 183–214
Wood inquiry ix–x
Andersen, Des ‘The Ibis’ 32
Anderson, Tim 183–214
legal representatives 193–196
senior lecturer position 213
Anita Cobby case 224–259
Gary and Grace Lynch 227, 237, 251
armed robbery see Synnerdahl, Carl
arson see Lady Chatterley’s Lover trial
assault see also Lady Chatterley’s Lover trial; Schneidas, Peter
by police, allegations of 239–240
audio recording of interviews see electronic recording of interviews
Australian Secret Intelligence Organisation (ASIO)
Ananda Marga case 184–185, 191–192, 196, 201–202
Yugoslav-bombing case 216–217
autopsies see Dawson case
Badgery-Parker, Jeremy 256
Bagoly, Tanya 154–155
Baker, David 14, 18, 26, 28, 33, 35, 42
bank robbery see Findlay, Gary
Barclay, William 152–153, 155–156
Barker, Ian 192, 211
Barwick, Garfield 23–24, 133–134
‘battered wife’ plea see Dawson case; Lawford, Michelle
Beckett, Roseanne (born Catt) 6
Bellanto, Tony 21, 26, 28–29, 32–35, 124, 269–270
Bellew, Geoffrey 48
Betts, Jenny 245
Birmistriw, Paul 184
Blackstone, William 7
Blanch, Reg 223
Bleasel, Marcus 232, 247–248
blindness, faked 87–91
bombing cases see Maric, Angelo; Tim Anderson case
Booth, Robert 151–152, 154
Boulter, ‘Mick’ 267
Brazel, Detective Sergeant 11
Brennan, Gerard 173
Brennan, John 265
Brown, Alan 62, 64, 67, 69, 85
Bruce, Chris 122
Bryon, Ernest 136
Burgess, Nicola 237
Burke, Detective 205
Burnside, Julian 272
Burroughs, Patrick (book character) 90–91
Byrne, Paul 220–221
Callagher, Laurie Jean 152, 154
Cameron, Robert 185–186, 196, 204–205
capital punishment 3, 257–258
Carter, Alec 184
Carter, Prudence 49–59
Catt, Roseanne (later Beckett) 6
Cessnock Correctional Centre, escape from 89–90
Chamberlain, Alice Lynne 3
character evidence 57–59
Charles, Prince 153
children
accused of manslaughter 261–263
interpretation of words of. see Dawson case
wrongly accused 103, 105–109, 112
CHOGM bombings see Tim Anderson case
Churchill, Winston 226
City Coroner’s Court 125, 228
Cobby, Anita see Anita Cobby case
committal proceedings 134–135
common purpose, doctrine of 230, 239, 254–255
community anger 253–254, 259
compensation 4–6, 208
confessions 65 see also signed confessions; unsigned records of interviews
admissibility of 70, 74, 262–263
to another prisoner 209–210
voluntary 262–263
conspiracy see Tim Anderson case
contempt of court 250–251
Cooke, Jenny 239, 241
Cookson, HGD 62, 64
courts, levels of 1
Cox, Russell ‘Mad Dog’ 139–140
Craddock, Jack 95
Crimes Act
on admissability of confessions 70, 74, 262–263
on determinate sentences 101
on diminished responsibility 161
inquiries under 104, 199, 204–205
on life sentences 258
Cross, Gloria 124
Cross, Ronald 113, 116–121, 124, 151–152
cross-examinations 191
Dalley, Bev 241
d’Arbon, Michael 193, 196
Dauroff, Gaye 12
Davidson, Tom 105
Dawson, Daryl 173
Dawson case 60–86
children in 61, 63–65, 69–71, 74
Deane, William 173
defence barristers see public defenders
Denning, Raymond John 209–211
Desai, Morarji 184
diminished responsibility 55–56, 150, 179 see also Mallard, Rodney Francis; mental illness; Veen, Richard
Dix, ME 153
dock statements 28–29, 56, 81
domestic violence see also Dawson case; Lawford, Michelle
‘battered wife’ plea 114
Donovan, GP 268
Doyle, Jim 67
Drake, Greg 246, 250, 254
Driscoll, Linus Patrick ‘Jimmy the Pom’ ix, 9–48
High Court on ix, 22–25, 28, 46–47
Driscoll, Pauline 45–46
Driscoll versus The Queen ix
Dunn, Ross 185–187, 189–190, 191–193, 196–197, 203–205, 207–208, 213–214
Eastman, David 5–6
Einfeld, Marcus 187, 197–198, 200–201, 203, 205–206
electronic recording of interviews 46–48, 135, 206
Elizabeth, Queen 153
Enderby, Keppel 100–104
escapees from prison 87–91
Evidence Act 1995 47, 127–128
executions 3, 257–258
exhumation of remains 63–64
expert evidence 4–5
eyewitnesses 126, 135
fabricated confessions see unsigned records of interviews
Favell, William 184
Ferguson, James Leighton 152–154
F
indlay, Gary 125–132, 135–136
Finlay, Mervyn 255
Finnane, Michael 198, 206–207
fire-lighting see Lady Chatterley’s Lover trial
Fitzgerald Inquiry ix
Flannery, Paul 124
Flood, Sean 187, 198
Foord, John 23–24
framed victims 6 see also Tim Anderson case; unsigned records of interviews
Fraser, Malcolm 184
Free Alister, Dunn and Anderson (Anderson) 203, 208
Free Baba Ananda Marga 185, 192
French, Norman 75
gangs 9–10
gaols, sadness of 2
Gaudron, Mary 173, 200
George Street bombings see Maric, Angelo
Gibbs, Harry 23, 133, 205, 222
Gibbs, Stephen 139
Gibson, Bruce 107
Gilligan, Detective 205
Glebe Coroner’s Court 125, 228
Gleeson, Murray ‘The Smiler’ 211–212
Glissan, James ‘Jim’ 104–105, 108, 193–194, 196–198
Godden, Detective 205
Goldrick, John 125–136
good behaviour, remissions for 178, 225
Graham, Geoffrey 105, 107
Greensmith, Mrs 243–244
Gregory, WH ‘Sandy’ 187
Grove, Michael 105, 155, 210
Guerber, HA 120
Haines, Trevor 242, 249
Hall, Edward Marshall 3
Hand, Derrick 228, 233
Hare Krishnas 185, 201
Harrison, Justice 7
Haylen, Wayne 200
hearsay evidence 219
Heazlewood, Colin 14–16, 18, 21–22, 24–25, 28–32, 36, 40–41
Helby, Chris 96–97
Henderson, Geoff 105
Herron, Brian 133
Hicks, David 88–89
Hidden, Peter 172, 254–255
High Court
at Darlinghurst 23
leadership and direction from ix
Hilton Hotel bombing see Tim Anderson case
Hogan, John 23
Hole, RG 64–65, 69, 74, 77, 85
homicide see manslaughter; murder
Hoodwinked (book and movie) 87–91
Hosking, William ‘Bill’ (author) vii–x
appointment as judge 242–243
description of 232